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STANISZEWSKI v. POLAND - 28157/08 [2010] ECHR 1404 (5 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1404.html
Cite as:
[2010] ECHR 1404
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FOURTH
SECTION
CASE OF
STANISZEWSKI v. POLAND
(Application
no. 28157/08)
JUDGMENT
STRASBOURG
5 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Staniszewski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Giovanni
Bonello,
President,
Lech
Garlicki,
Ján
Šikuta,
judges,
and
Fatoş Aracı,
Deputy Section
Registrar,
Having
deliberated in private on 14 September 2010;
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 28157/08) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Mr
Tadeusz Staniszewski (“the applicant”), on 3 June 2008.
The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
The
applicant complained that he had been deprived of access to the
Supreme Court.
On
11 May 2009 the President of the Fourth Section decided to
communicate the application to the Government. It was also decided
that the Committee would rule on the admissibility and merits of the
application at the same time (Article 29 § 1 of the Convention).
In
accordance with Protocol No. 14, the application was allocated to a
Committee. The Government objected to the examination of the
application by a Committee. After having considered the Government's
objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
On
14 December 2006 the applicant lodged with the Kłodzko District
Court an action against his former employer, concerning his social
insurance entitlements.
On
26 April 2007 the Kłodzko District Court dismissed the
applicant's action.
On
15 May 2007 the applicant appealed. On 23 October 2007 the Świdnica
Regional Court dismissed his appeal.
On
5 November 2007 the applicant was served with the judgment with its
written grounds. The court informed him at the same time that he had
sixty days as of the date of the service of the judgment (until
5 January 2008) to lodge a cassation appeal.
In
his letter of 28 December 2007, received by the court on 31 December
2007, the applicant requested the court to appoint a legal aid
lawyer for the purposes of lodging a cassation appeal.
On
9 January 2008 the applicant was granted legal aid. In a letter of
the same date the court requested the Wałbrzych Regional Bar
Association to assign a legal-aid lawyer to the case. This letter was
served on the addressee on 14 January 2008. A
legal-aid lawyer was assigned to the case on the same day.
In
his fax of 25 January 2008 to the Świdnica Regional Court the
applicant requested the court to extend the statutory time limit for
lodging the cassation appeal in his case. He explained that he had
been trying to find a lawyer; to no avail. Finally, he stated that he
was “delighted with the legal-aid lawyer assigned to his case,
who was superb”.
In
a letter of 24 January 2007 to the Świdnica Regional Court, the
legal-aid lawyer stated that she had found no points of law on which
a cassation appeal in the applicant's case could be based and
submitted a legal opinion as to why a cassation appeal did not, in
her view, offer any prospects of success. A copy of that letter was
sent to the applicant on the next day.
In
his letter of 30 January 2008, served on the Świdnica Regional
Court on 1 February 2008, the applicant requested that the case be
re examined by that court. The applicant also applied to have
the power of attorney of the defendant enterprise invalidated for the
purpose of safeguarding the equality of arms in the proceedings as he
intended to present his case to the court without legal
representation.
By
a letter of 28 February 2008 the President of the Labour Division of
the Świdnica Regional Court informed the applicant that there
were no grounds on which to envisage a re-examination of the case in
which a final and valid judicial decision had been given.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The
relevant domestic law and practice concerning the procedure for
lodging cassation appeals with the Supreme Court against judgments of
the appellate courts are stated in the Court's judgments in the cases
of Siałkowska v. Poland, no. 8932/05, 22 March
2007; Staroszczyk v. Poland, no. 59519/00, 22 March
2007; Smyk v. Poland, no. 8958/04, 28 July
2009; Zapadka v. Poland, no. 2619/05, 15 December
2009; Bąkowska v. Poland, no. 33539/02,
12 January 2010.
17. On
5 February 2005 amendments to the Code of Civil Procedure, adopted on
22 December 2004 (Ustawa o zmianie
ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju
sądów powszechnych),
entered into force. Under the amended text of Article 398
1 § 5, the time limit for lodging a
cassation appeal with the Supreme Court was extended from thirty to
sixty days.
The
Supreme Court has repeatedly held that a request for leave to appeal
out of time was the only method by which a cassation appeal submitted
after the expiry of the time limit could be admitted for
examination (21 April 1997, II CZ 38/97; 27 September 2001,
II UZ 51/01). In a further series of decisions the Supreme Court
considered that it would be unfair for the legally-aided party to be
penalised for the fact that legal aid applications could not be
processed quickly enough to make it possible for a cassation appeal
to be lodged within a period of thirty days counted from the day of
service of the judgment on the party. The parties waiting for
legal-aid services cannot be held at fault for shortcomings in the
system. A party who was obliged to have recourse to legal aid should
not be put in a worse situation than that of a person who did not
seek it. A request to appeal out of time should therefore be
submitted within seven days from the date on which the legal aid
lawyer could obtain effective access to the case file or had an
effective possibility of drafting an appeal (4 March 2005, II UZ
72/04; 27 June 2000, I CZ 62/00), or from the date when the
lawyer was informed that he had been assigned to the case by the
local Bar Association (11 October 2001, IV CZ 163/01;
17 November 1998, II UZ 122/98; 11 October 2001, IV CZ
163/01);
In
a resolution adopted by a bench of seven judges of the Supreme Court
on 17 February 2009 (III CZP 117/08) that court acknowledged that
there had been discrepancies in the manner in which the beginning of
the seven-day time limit for submitting an application for leave to
appeal out of time by legally-assisted parties had been determined.
The court was of the view that applications for leave served the
purpose of making access to the Supreme Court for legally-aided
parties genuine and effective. Hence, the beginning of the time limit
could not be determined in a mechanical manner in all cases. The
courts should instead examine the circumstances of individual cases
as a whole and determine that date bearing in mind the genuine
possibility for a lawyer to examine the case and prepare a cassation
appeal.
THE LAW
The
applicant complained under Article 6 § 1 of the Convention that
he had been denied access to the Supreme Court.
Article 6
§ 1 reads, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
The
Court notes that the application complaint is not manifestly
ill founded within the meaning of Article 35 § 3
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties' arguments
The applicant submitted that he had been unfairly deprived of access
to the Supreme Court, in breach of the requirements of Article 6
§ 1 of the Convention.
The
Government first submitted that Article 6 of the Convention did not
explicitly guarantee a right to obtain legal assistance under
legal aid scheme in all civil cases. In any event, in the
present case the applicant had received such assistance free of
charge and his request for legal aid had been processed with all
requisite diligence.
They
further argued that the applicant's case had been examined at two
levels of jurisdiction. Neither the Convention nor domestic law
guaranteed a right to have a civil case heard at three levels of
jurisdiction. The right to a court was not absolute and could
therefore be subject to certain limitations, in so far as they did
not impair the very essence of that right. In particular, the
criteria of admissibility of appeals to be lodged with the highest
courts could be strict and the procedure more formal than that before
the lower courts, without the requirements of Article 6 of the
Convention being breached thereby. The mere fact that it was
necessary for a cassation appeal to be lodged by a qualified
representative was not open to criticism.
They
further referred to the resolution of the Supreme Court given in
September 2000. That court had held that a lawyer assigned to a case
under a legal aid scheme was entitled to refuse to lodge a
cassation appeal in civil proceedings, if he or she was of the view
that this remedy offered no reasonable prospects of success. The
Government stressed that the notion of legal aid was not to be
understood as providing legal representation in proceedings in all
cases. It also comprised the provision of legal advice on the
prospects of success offered by a given legal remedy in the
particular context of each case. The lawyers' tasks could not be
perceived as following their clients' instructions and wishes
uncritically and lodging remedies against their better judgment. Nor
was it the role of the State to compel lawyers to do so. Hence, the
lawyer's refusal had served the purpose of securing the proper
administration of justice by the Supreme Court, including ensuring
that the case load of that court would not be unreasonably increased
by unmeritorious cassation appeals.
The
Government further submitted that the applicant had failed to act
with requisite diligence because he had submitted his request for
assistance of a legal-aid lawyer only several days before expiry of
two month time limit. He had therefore contributed by his
own conduct to the difficulties concerning access to the Supreme
Court in his case.
2. The Court's assessment
The
Court has already had occasion to set out at length the relevant
principles derived from its case-law in this area (Staroszczyk
v. Poland, Siałkowska v. Poland, Smyk v. Poland,
Bąkowska v. Poland, Zapadka v. Poland, referred to
above). It adopts those principles for the purposes of the instant
case.
The Court further observes that where a party to civil proceedings is
represented by a lawyer, the procedural time-limits set by the Code
of Civil Procedure start to run on the date of the service of
judicial decisions on the lawyer (see, e.g., Smyk v. Poland,
referred to above, § 63).
Where
a party does not have legal representation, as in the present case,
and is granted legal aid only after the second-instance judgment has
been given, the case-law of the Supreme Court provides that the
time limit for lodging a cassation appeal starts to run from the
date on which the judgment of the appellate court has been served on
that party.
The
Court observes that a party who is subsequently granted legal aid is
thereby put in a difficult position because at the time of service
the time-limit has already started to run. The Polish courts,
including the Supreme Court, have repeatedly held that his or her
request for legal aid does not affect the running of the time-limit.
A legal-aid lawyer subsequently assigned to the case has therefore
less time to examine the case and decide, still within the
time limit, whether a cassation appeal offers prospects of
success and to prepare it.
The
Court further notes that the applicable domestic regulations do not
specify the time-frame within which the applicant should be informed
about the refusal to prepare a cassation appeal (see Siałkowska,
cited above, § 114, Smyk v. Poland, cited
above, § 60). The Court has already found that the way in
which those regulations were applied in practice were capable of
leaving legally-aided parties with no realistic opportunity of having
their cases brought to the Supreme Court within the time-limit
provided for by law (Siałkowska v. Poland, cited
above, no. 8932/05, §§ 11 - 155). In the present
case the second-instance judgment, together with its written grounds,
was served on the applicant on 5 November 2007. It was on that date
that the sixty-day time-limit for lodging the cassation appeal
started to run.
However,
the Court observes that subsequently the applicant formulated his
request for legal aid by a letter dated 28 December 2006. This letter
was served on the court on 31 December 2007, only five days before
the two-month time limit was to expire. It has not been shown that
this delay had been justified by any circumstances for which the
applicant could not be held responsible. The applicant had not
substantiated his submission made to the domestic courts and
concerning his alleged unsuccessful efforts to find a privately hired
lawyer for the purposes of lodging of a cassation appeal. Nor has he
shown that he could not have been aware of the time limit within
which a cassation appeal had had to be submitted to the court. The
time limit was to expire on 5 January 2008. The court,
having received his request, examined it speedily and granted it on
9 January 2008.
Having
regard to the delay with which the applicant availed himself of his
procedural right, the Court is of the view that he failed to display
diligence which should normally be expected from a party to civil
proceedings (see Pretto and Others v. Italy, judgment of
8 December 1983, Series A no. 71, pp. 14-15, § 33;
Bąkowska v. Poland, referred to above, § 53-54).
The
Court therefore concludes that in the particular circumstances of the
present case there has been no violation of Article 6 § 1
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the application admissible;
Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 5 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni Bonello Deputy
Registrar President
