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Cite as: [2010] ECHR 1410

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FOURTH SECTION

CASE OF BALCER v. POLAND

(Application no. 19236/07)

JUDGMENT

STRASBOURG

5 October 2010

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

In the case of Balcer 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. 19236/07) 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, Ms Regina Balcer (“the applicant”), on 28 April 2007.

The applicant was represented by Ms G. Kalinowska-Jarzyńska, a lawyer practising in Poznań. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant complained that she had been deprived of access to the Supreme Court.

On 5 March 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

The applicant was born in 1952 and lives in Rogoźno.

After the applicant's husband had died in April 2002, she instituted proceedings in which she claimed her widow's pension. On 25 September 2002 the Poznań Social Security Board dismissed the applicant's request. On 24 April 2006 the Poznań District Court dismissed her appeal against that decision. On 11 October 2006 the Poznań Regional Court dismissed the applicant's further appeal.

On 13 October 2006 the applicant requested to be served with the written grounds to that judgment. They were served on her on 6 November 2006.

On 27 December 2006 the applicant requested the court to assign a legal-aid lawyer to the case with a view to lodging a cassation appeal with the Supreme Court.

On 12 January 2007 the Poznań Regional Court allowed the applicant's request for legal aid. On 17 January 2007 the Poznań Bar Association assigned a lawyer to the case. On 23 January 2007 the Poznań Regional Court informed the applicant accordingly.

In a letter to the court dated 9 February 2007 the lawyer explained that she saw no grounds on which to prepare a cassation complaint in the applicant's case.

On 20 March 2007 the court informed the applicant about the lawyer's refusal and that the time limit for the lodging of a cassation complaint had expired on 6 January 2007. The court's letter was served on the applicant on 23 March 2007.

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.

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

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

The applicant complained under Article 6 § 1 of the Convention that she 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 Government submitted that the applicant had failed to exhaust relevant domestic remedies. She should have brought a civil action for compensation against the legal aid lawyer. They were of the view that a civil action was an effective remedy where a lawyer, either legal aid or privately hired, was negligent in carrying out his or her duties regarding legal representation in judicial proceedings. They also referred to a complaint to the local Bar Association under Article 28 of the Bar Act.

The applicant disagreed. She submitted that the remedies referred to by the Government were not of a judicial character. She argued that a complaint under 28 of the Bar Act was in no way related to the civil proceedings in which the party was involved. It could not affect the running of time-limits provided by applicable provisions of civil procedure. The party could only, if successful, set in motion professional proceedings relating to the lawyer's disciplinary responsibility which had no bearing on his or her procedural position in the civil proceedings. For the same reason a compensation claim against the lawyer could not be considered a relevant remedy, capable of offering appropriate redress.

The Court observes that the remedies referred to by the Government were merely of a retrospective character. They could only, and if the applicant had been successful, have resulted either in the courts granting damages or in the Bar Association finding the lawyer at fault. Such retrospective measures alone were not sufficient to ensure effective access to a court competent to determine the applicant's civil rights and obligations. The Court therefore rejects the Government's objection (see Zapadka v. Poland, referred to above, § 50; Bąkowska v. Poland, referred to above, § 36).

The Court further 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

1. The parties' arguments

The applicant submitted that the applicable law of civil procedure formulated the admissibility conditions for a cassation appeal in an excessively strict manner. Moreover, the judicial practice concerning interpretation of these conditions was divergent and often arbitrary. As result, most cassation appeals were rejected without there being a possibility for a lawyer of rectifying their deficiencies as to the form or content. Consequently, parties were deprived of the opportunity of having their cases examined by the highest judicial authority. Difficulties arising in connection with formulation of cassation appeals resulted in discouraging many lawyers from carrying out their obligation to represent legally-aided parties to civil proceedings. This was further compounded by the fact that the Code of Civil Procedure obliged the Supreme Court to inform the local Bar Association of every and each cassation appeal rejected for failure to respect relevant requirements.

The applicant stressed that the proceedings concerning the lodging of a cassation appeal with the Supreme Court had to meet the Convention standards, regardless of the fact that the Convention itself did not oblige the Contracting Parties to introduce a cassation appeal to a third-instance court. Due to the shortcomings in the legal regulation of the cassation proceedings in Poland the applicant's right of access to court had been breached.

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 the case law of the Polish civil courts indicated that retrospective leave to appeal out of time could be granted where legal aid for the purposes of lodging a cassation appeal had been given, but the legal aid lawyer could not comply with all the relevant formalities within that time-limit. Had the applicant requested such leave, it was likely that her request would have been granted.

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 6 November 2006. 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 submitted her request for legal aid on 27 December 2006, only nine days before the two-month time limit was to expire. It has not been shown or even argued that this delay had been justified by any special circumstances for which the applicant could not be held responsible, or that she 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 6 January 2007. The court, having received her request, examined it speedily and granted her request on 12 January 2007.

Having regard to the delay with which the applicant availed herself of her procedural right, the Court is of the view that she 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