(Application no. 18176/05)
8 December 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Wieczorek v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nicolas Bratza, President,
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 17 November 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“It should be borne in mind that the proceedings concerning the applicant's case had been instituted [by the Social Insurance Authority] under the legal provisions governing the internal supervision by the principal physician of doctors working for that Authority and assessing the medical condition of persons seeking a disability pension (see Article 11 of the 1997 Ordinance of the Minister of Labour and Social Policy). Accordingly, it was of no legal relevance to the applicant's case that she had been declared permanently unfit to work in 1985. Neither was the length of time for which she had been receiving her pension of any significance for the present case.”
“Under Article 117 § 1 of the Code of Civil Procedure a party to proceedings who has been exempted, fully or in part, from the obligation to pay court fees can request that a legal-aid lawyer be assigned to represent him or her in the case. The court shall allow such a request if it decides that the participation of a lawyer in the case is necessary. A legal-aid lawyer shall be so assigned where the party is unable to argue the case competently or the case is complex as to the facts or law.
The crucial issue in the present case was the assessment of the [applicant's] condition and, consequently, it cannot be regarded as so complex as to warrant legal assistance. The court therefore considers that legal assistance would be unnecessary and, accordingly, dismisses the applicant's request.
The mere fact that a party cannot afford to pay legal fees does not justify the granting of legal assistance; this also applies to cases where legal representation is mandatory for the preparation of the cassation appeal.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Legal aid
“1. A party [to the proceedings] exempted partly or entirely from court fees may request that an advocate or a legal adviser be appointed for him or her. ... The court shall grant that request if it considers that the participation of an advocate or a legal adviser in the case is necessary. ...
2. The provisions of the preceding paragraph are also applicable to parties who benefit from a statutory exemption from court fees, provided that they demonstrate, by way of the declaration referred to in Article 113 § 1, that the fees of the advocate or legal adviser would entail a reduction in their standard of living and that of their family. The court shall refuse to assign a lawyer to the case if it considers that the party's action or appeal is manifestly ill-founded.”
2. Cassation appeals
“The cassation appeal may be based on the following grounds:
(1) a breach of substantive law on account of its erroneous interpretation or wrongful application;
(2) a breach of procedural provisions if the defect in question could significantly affect the outcome of the case.”
3. Appeals against interlocutory decisions
4. Relevant provisions of social insurance law
This Ordinance was repealed with effect from 1 September 1997.
5. Case-law of the domestic courts
In its judgment of 22 January 2002 ( II UKN 747/00) the Supreme Court held:
“The Social Insurance Authority cannot challenge the assessment that a person entitled to a disability pension is unfit to work if that person has been recognised as disabled for a period of over ten years. The change of legal situation in 1997 [when the 1983 Ordinance was repealed] is irrelevant in this respect.”
I. THE CONTINUED EXAMINATION OF THE APPLICATION
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION CONCERNING THE REFUSAL OF LEGAL AID
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Court first notes that in the instant case the provisions of the Code of Civil Procedure made it possible for the applicant to apply for legal aid. The relevant decision was dependent on the court's assessment as to whether in the circumstances of the case legal representation was necessary (see paragraph 20 above). When examining whether the decisions on legal aid, seen as a whole, were in compliance with the fair hearing standards of the Convention, it is not the Court's task to take the place of the Polish courts, but to review whether those courts, when exercising their power of appreciation in respect of the assessment of evidence, acted in accordance with Article 6 § 1 (see, mutatis mutandis, Kreuz v. Poland, no. 28249/95, § 64, ECHR 2001-VI).
III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
1. The parties' arguments
2. The Court's assessment
(a) General principles
“The first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers deprivation of possessions and subjects it to certain conditions; the third rule, stated in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest ... The three rules are not, however, 'distinct' in the sense of being unconnected. The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule.”
(b) Application of the above principles in the present case
61. The Court notes that the applicant was divested of her entitlement to the disability pension which she had been receiving since 1985. It is of the view that this amounted to interference with her possessions within the meaning of Article 1 of Protocol No. 1 to the Convention (see Styk v. Poland (dec.), no. 28356/95, 16 April 1998; Szumilas v. Poland (dec.), no 35187/97, 1 July 1998; Bieńkowski v. Poland (dec.), no. 33889/97, 9 September 1998; and, mutatis mutandis, Domalewski, cited above).
Indeed, had entitlements to disability pensions been maintained in situations where their recipients ceased over time to comply with the applicable legal requirements, it would result in their unjust enrichment. Moreover, it would have been unfair on persons contributing to the Social Insurance system, in particular those denied benefits as they did not meet the relevant requirements. In more general terms, it would also sanction an improper allocation of public funds; an allocation in disregard of the objectives that disability pensions were purported to meet.
It is further noted that during the proceedings conducted before the appellate court that court ordered that the evidence on the basis of which the first-instance court had given its judgment of 24 September 2002 be supplemented by medical examinations by various specialists (see paragraph 14 above). However, the applicant refused to comply with that order.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
77. As regards the applicant's complaint about the unreasonable length of the impugned proceedings, the Court notes that the applicant did not lodge a complaint with the relevant domestic court under the 2004 Act, thus failing to avail herself of the available domestic remedy. The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland. In particular, the Court considered that the remedy was capable both of preventing the alleged violation of the right to a hearing within a reasonable time or its continuation, and of providing adequate redress for any violation that had already occurred (see Charzyński v. Poland (dec.), no. 15212/03, §§ 36-42).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 2,000 (two thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Polish zlotys at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 8 December 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza