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Cite as: [2010] ECHR 1409

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FOURTH SECTION

CASE OF URBANOWICZ v. POLAND

(Application no. 40459/05)

JUDGMENT

STRASBOURG

5 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Urbanowicz 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. 648/02) 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 Damian Urbanowicz (“the applicant”), on 10 November 2005.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant complained, in particular, that he had been deprived of access to the Supreme Court.

On 21 September 2009 the President of the Fourth Section decided to give notice of this complaint to the Government. Under Article 29 § 3 of the Convention it was decided to examine the admissibility and merits of the case at the same time.

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

The applicant was born in 1981.

On 28 January 2004 the Radom Regional Court convicted the applicant of murder and sentenced him to 25 years' imprisonment as a recidivist offender. The applicant appealed. On 14 April 2005 the Lublin Court of Appeal upheld the first-instance judgment. On the same day the applicant's lawyer, who represented him under the legal-aid scheme, requested the court to prepare written grounds for the judgment of the appellate court and stated that this request should be regarded as an announcement of an upcoming cassation appeal against it.

On 25 April 2005 the same lawyer requested the court to release him from the obligation to represent the applicant since the applicant had announced that he had lost confidence in him.

On 19 May 2005 the applicant lodged with the Lublin Court of Appeal a motion to have a new legal-aid lawyer assigned to the case. On 13 June 2005 the court allowed his request, assigned Mr J. Ż. to represent the applicant and ordered the registry to serve the written grounds of the judgment of 14 April 2005 on the lawyer.

The lawyer was served with the grounds on 20 June 2005.

In a letter to the applicant, dated 14 July 2005 the Lublin Court of Appeal informed the applicant that Mr J. Ż. had found no grounds on which to prepare a cassation appeal. The relevant passage of the letter read as follows:

“I inform you that the legal-aid lawyer assigned to prepare a cassation appeal against the ... judgment of 14 April 3005, advocate Mr J. Ż. submitted a letter to the court that he had found no grounds, stipulated in Article 523 of the Code of Criminal Procedure, on which to prepare a cassation appeal in the present case. Accordingly, I am obliged to inform you that Article 84 of that Code confers on a defence counsel a right to issue such an opinion and that no regulations are available which would empower the court to compel a legal-aid lawyer to prepare a cassation appeal ... Therefore the Court of appeal will abstain from taking any further measures in the present case, having found that the convicted person's defence rights were properly guaranteed through legal-aid assistance having been granted in the case.”

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 Kulikowski v. Poland, no. 18353/03, §§ 19-27, ECHR 2009 ... (extracts) and Antonicelli v. Poland, no. 2815/05, §§ 14-22, 19 May 2009).

In particular, on 26 February 2002 the Supreme Court examined a situation where a legal aid lawyer had refused to represent a convicted person for the purposes of cassation proceedings, finding that a cassation appeal would offer no prospects of success. It held that in such a situation the appellate court was obliged to instruct the defendant that the time limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the lawyer's refusal and not on the earlier date when the judgment of the appellate court was served on the defendant himself. It stated that it was not open to doubt that a defendant faced with a legal-aid lawyer's refusal had the right to take other measures to seek legal assistance necessary for effective lodging of a cassation appeal (III KZ 87/01). The Supreme Court reiterated its position in a decision of 6 May 2008 and in a number of similar decisions given in 2008. It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time-limit in such situations was calculated, but the strand of the case-law launched by the decision given in February 2002 was both dominant and correct, and also accepted by doctrine as providing to defendants adequate procedural guarantees of access to the Supreme Court within a reasonable time frame (II KZ 16/08).

In its decision of 25 March 1998 the Supreme Court stated that the refusal of a legal-aid lawyer to lodge a cassation appeal did not constitute a valid ground for granting retrospective leave to lodge such an appeal by another lawyer out of time (V KZ 12/98). It confirmed this ruling in a further decision of 1 December 1999. The Supreme Court observed that the court could only assign a new legal-aid lawyer to the case if it were shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. If this were not the case, a court was not obliged to assign a new legal-aid lawyer to represent the convicted person and its refusal was not subject to appeal (III KZ 139/99). The Supreme Court reiterated its position in a number of other decisions (e.g. II KZ 11/02, II KZ 36/02).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION WITH ARTICLE 6 § 3 (c ) OF THE CONVENTION

The applicant complained that as a result of the legal aid lawyer's refusal to draft a cassation appeal he had been denied effective access to the Supreme Court. He relied on Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention. Those provisions, in so far as relevant, read:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

3. Everyone charged with a criminal offence has the following minimum rights: ...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

A. Admissibility

The Government argued that the applicant had failed to avail himself of the applicable domestic remedies.

He should have hired a lawyer of his own choice with a view to submitting a cassation appeal on his behalf. It was also open to him to request that another legal-aid lawyer be assigned to the case. Had the time limit for lodging it already expired by the time when this request would have been granted, it would have been open to the applicant to request a retrospective leave to appeal out of time.

The applicant disagreed.

The Court notes that legal representation was mandatory for the purposes of preparing a cassation appeal. However, in the applicant's case the courts, by granting the applicant legal aid, acknowledged his lack of financial resources. In such circumstances, the Court considers that the applicant should not therefore have been required to embark on further attempts to obtain legal assistance with a view to lodging a cassation appeal for the purposes of exhaustion of domestic remedies (see Seliwiak v. Poland, no. 3818/04, § 47, 21 July 2009). In so far as the Government argued that the applicant should have requested that another legal-aid lawyer be assigned to represent him with a view to preparing a cassation appeal, the Court observes, having regard to the case-law of the Supreme Court (see paragraph 15 above), that a refusal of a legal-aid lawyer to prepare a cassation appeal was not a valid ground on which the courts would assign another lawyer to the case. In so far as the Government argued that the applicant should have requested retrospective leave to appeal out of time, the Court considers that the Government's preliminary objection under this head is closely linked to the merits of the applicant's complaint. Accordingly, it decides to join its examination to the merits of the case.

The Court notes that this 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

The applicant submitted that he had been granted legal aid for the purposes of lodging a cassation appeal. However, he had been ultimately deprived of access to the Supreme Court because that lawyer refused to prepare a cassation appeal in his case and he was left in uncertainty as to his legal position.

The Government refrained from submitting their comments on the merits of the applicant's complaint.

The Court first notes that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial in criminal proceedings as set forth in paragraph 1 of the same Article. Accordingly, the applicant's complaint will be examined under these provisions taken together (see, among other authorities, Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 755, § 52, and Bobek v. Poland, no. 68761/01, § 55, 17 July 2007).

Furthermore, the Court has already had occasion to set out at length the relevant principles derived from its case-law in this area (Kulikowski v. Poland, no. 18353/03, ECHR 2009 ... (extracts); Antonicelli v. Poland, no. 2815/05, 19 May 2009; Arciński v. Poland, no. 41373/04, 15 September 2009). It adopts those principles for the purposes of the instant case.

In the present case the court informed the applicant about the legal-aid lawyer's refusal by a letter of 14 July 2005. The court's letter accompanying that refusal did not contain any information concerning his procedural rights. In particular, the court did not inform him that under the case-law of the Supreme Court, adopted in 2002, the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the legal-aid lawyer's refusal. The failure to clarify the applicant's legal situation, given that at that time he was not represented by a lawyer, meant that he had no way of knowing when the time-limit for lodging a cassation appeal started to run and what steps, if any, he had at his disposal to pursue the cassation proceedings, for instance by trying to find another lawyer who might be persuaded to file a cassation appeal on his behalf. In so far as the Government argued that the applicant should have requested retrospective leave to appeal out of time, the Court notes that the applicant had no way of knowing when the time-limit started to run.

The Court observes that the procedural framework governing the making available of legal aid for a cassation appeal in criminal cases, as described above, is within the control of the appellate courts. When notified of a legal-aid lawyer's refusal to prepare a cassation appeal, it is entirely appropriate and consistent with fairness requirements, that an appeal court indicate to an appellant what further procedural options are available to him or her (see Kulikowski v. Poland, cited above, § 70; Antonicelli v. Poland, cited above, § 45; Jan Zawadzki v. Poland, no. 648/02, § 16, 6 July 2010). However, in the instant case this requirement was not complied with, with the result that the applicant's right of access to the Supreme Court was not secured in a “concrete and effective manner”.

Accordingly, having regard to the above deficiency, there has been a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) of the Convention and the Government's objection based on non-exhaustion of domestic remedies (see § 19 above) must accordingly be rejected.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant complained, relying on Article 6 of the Convention, that the proceedings had been unfair in that the courts had wrongly assessed evidence, erred in establishing the facts of the case and incorrectly applied applicable domestic law.

However, the Court reiterates that, according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I, with further references).

In the present case, even assuming that the requirement of exhaustion of domestic remedies was satisfied, the Court notes that the applicant did not allege any particular failure to respect his right to a fair hearing on the part of the relevant courts. Indeed, his complaints are limited to a challenge to the result of the proceedings. Assessing the circumstances of the case as a whole, the Court finds no indication that the impugned proceedings were conducted unfairly.

It follows that this part of the application is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“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.”

The applicant requested the Court to award him just satisfaction and requested the Court to quantify the proper amount. He did not make any claim for reimbursement of costs and expenses.

The Court accepts that the applicant has suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 1,000 under this head.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Joins to the merits the Government's preliminary objection based on non-exhaustion of domestic remedies;

Declares admissible the applicant's complaint concerning lack of access to a court and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c);

Holds

(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 1,000 (one 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 5 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Giovanni Bonello
Deputy Registrar President