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WERSEL v. POLAND - 30358/04 [2011] ECHR 1321 (13 September 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1321.html
Cite as:
[2011] ECHR 1321
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FOURTH
SECTION
CASE OF WERSEL v. POLAND
(Application
no. 30358/04)
JUDGMENT
STRASBOURG
13 September 2011
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 Wersel v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Sverre Erik
Jebens,
Päivi Hirvelä,
Ledi
Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 23 August 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 30358/04)
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 Krzysztof Wersel (“the applicant”),
on 4 August 2004.
2. The
applicant was represented before the Court by Ms E. Korzydło,
a lawyer practising in Brzeg. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
3. The
applicant complained, in particular, under Article 6 of the
Convention about the lack of access to a court in that a
domestic court refused to appoint him a legal aid lawyer for
the purpose of lodging a cassation appeal.
On
6 December 2007 the President of
the Fourth Section decided to give notice of the application
to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant, Mr Krzysztof Wersel, is a Polish national who was born in
1970 and is currently serving a prison sentence in Brzeg Prison.
A. Conditions of the applicant’s detention
1. Period of the applicant’s detention
The
applicant has been in continuous detention from an unspecified date
in September 2000 until the present day.
2. Description of the applicant’s detention
conditions
He
was initially committed to Mysłowice Remand Centre.
In
November 2000 he was transferred to Zabrze Remand Centre, where, as
he submitted, he had been detained together with two or three other
detainees in cells measuring 6 or 10 square metres.
In
July 2001 the applicant was transferred back to Mysłowice Remand
Centre, where he had been detained in overcrowded cells. In addition,
the applicant, who was a non-smoker, had been exposed to cigarette
smoke because smoking inside the cell was allowed.
From
31 December 2003 until an unspecified date in July 2005 the applicant
was detained in Gliwice Remand Centre. He was assigned to a cell
measuring 6 square metres which he had shared with two other
detainees.
On
an unspecified date in July 2005 the applicant was committed to
Zabrze Remand Centre. He submitted that, initially, the conditions of
his detention had been satisfactory. In his letter of 19 June 2006,
however, he claimed that the establishment had become overcrowded
just like all the other detention facilities.
The
Government submitted that as of 26 November 2009 the applicant had
been detained in Brzeg Prison, in a cell in which the statutory
minimum space of 3 square metres per person had been respected.
B. The applicant’s
actions concerning the conditions of his detention
On
7 October 2004 the applicant complained to the remand centre’s
administration about overcrowding and bad living conditions. He did
not complain to the penitentiary authorities in connection with the
living conditions as regards the more recent period of his detention.
Moreover, the applicant did not bring a civil action in tort to seek
compensation for the infringement of his personal rights.
C. The applicant’s criminal proceedings
On
27 October 2003 the Katowice District Court (Sąd Rejonowy)
convicted the applicant of three counts of armed robbery and
sentenced him to a prison term of three and a half years. During the
first-instance proceedings the applicant was represented by a legal
aid lawyer.
On
23 April 2004 the Katowice Regional Court (Sąd Rejonowy)
upheld the above-mentioned judgment on appeal. During the
second instance proceedings the applicant was also represented
by a legal aid lawyer. To that effect the appellate court held that
the applicant be exempted from all costs of the appellate
proceedings, including legal assistance.
On
25 May 2004 the reasoned judgment was served on the applicant. On
that date the time-limit of thirty days for lodging a cassation
appeal began to run.
On
26 May 2004 the lawyer instructed the applicant that her mandate had
expired when the appellate proceedings had come to an end. If the
applicant wished to have a cassation appeal lodged with the Supreme
Court, he should make a new request for legal aid.
On
30 May 2004 the applicant prepared an application for legal aid and
deposited it as out-going mail with the authorities of the Gliwice
Remand Centre. His legal aid application was received by the Katowice
Regional Court on 3 June 2004.
By
an official letter of 22 June 2004 the registry of the Katowice
Regional Court notified the applicant that his appeal for legal aid
had been rejected. The court’s decision was not accompanied by
any reasoned opinion.
On
24 June 2004 the applicant drafted his own cassation appeal and filed
it with the Katowice Regional Court.
On
1 July 2004 the Katowice Regional Court requested the applicant
to complete the procedural requirements by having his cassation
appeal prepared and signed by a lawyer within 7 days. That request
was served on the applicant on 5 July 2004.
On
6 July 2004 the applicant informed the Regional Court that he was
unable to comply with the above-mentioned instruction because he had
not been granted legal-aid. The applicant, once more, asked the court
to grant him legal aid for the purpose of his cassation appeal
proceedings.
On
16 July 2004 the registry of the Katowice Regional Court informed the
applicant that his application for legal aid had been rejected. No
formal decision was served on the applicant to that effect.
On
6 August 2004 the President of the Criminal Law Section of the
Katowice Regional Court decided that the applicant’s cassation
appeal was not to be entertained (odmówił przyjęcia
kasacji) for non-compliance with procedural requirements.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Conditions of detention
A
detailed description of the relevant domestic law and practice
concerning general rules governing conditions of detention in Poland
and domestic remedies available to detainees alleging that the
conditions of their detention were inadequate is set out in the
Court’s pilot judgments given in the cases of Orchowski
v. Poland (no. 17885/04) and Norbert Sikorski v. Poland
(no. 17599/05) on 22 October 2009 (see §§ 75-85 and
§§ 45 88 respectively). More recent
developments are described in the Court’s decision in the cases
of Łatak v. Poland (no. 52070/08) adopted on 12 October
2010 (see §§ 25-54) and Łomiński v. Poland
(no. 33502/09) adopted on 12 October 2010 (see §§ 17-49).
B. Legal representation in cassation appeal proceedings
Under
the Law of 6 June 1997 - Code of Criminal Procedure (“the Code”),
which entered into force on 1 September 1998, a party to
criminal proceedings can lodge a cassation appeal with the Supreme
Court against any final decision of an appellate court which had
terminated criminal proceedings. The cassation appeal has to be
lodged and signed by an advocate, on pain of being declared
inadmissible. The relevant part of Article 523 § 1 of
the Code provides:
“A cassation appeal may be lodged only on the
grounds referred to in Article 439 [these include a number
of procedural irregularities, such as, for instance, incorrect
composition of the trial court; lack of legal assistance in cases
where such assistance was compulsory; breach of the rules governing
jurisdiction in criminal matters; trying a person in absentia in
cases where his presence was obligatory and thus depriving him of an
opportunity to defend himself, etc.] or on the ground of another
flagrant breach of law provided that the judicial decision in
question was affected as a result of that breach. A cassation appeal
shall not lie against the severity of the penalty imposed
(niewspółmierności kary).”
Pursuant
to Article 524 § 1 of the Code, a cassation appeal has to be
lodged with the appellate court competent to carry out an initial
examination of its admissibility within thirty days from the date of
service of the judgment of the appellate court with its written
grounds on the party or, if the party has been represented, on his or
her lawyer.
Under
Article 83 of the Code, an accused may appoint a lawyer to represent
him or her in criminal proceedings. If he or she cannot afford
lawyers’ fees, a request for legal aid may be made under
Article 78 of the Code.
A
grant of legal aid expires upon a judgment of an appellate court.
A new decision on legal aid has to be made if the convicted
person wishes to institute further proceedings in order to lodge a
cassation appeal with the Supreme Court. The relevant part of Article
84 § 3 of the Code provides:
“A defence counsel appointed under the legal aid
scheme in the cassation proceedings ... shall prepare and sign a
cassation appeal ... or shall inform the court, in writing, that he
or she has not found any grounds for lodging a cassation appeal ...
If a cassation appeal ... is lodged, the defence counsel is entitled
to represent the defendant in the subsequent proceedings.”
Under
Article 528 of the Code an interlocutory appeal (zażalenie)
is not available against a refusal of legal aid for cassation appeal
proceedings.
Article
530 § 2 of the Code provides that the president of the court
which had given the decision appealed against is competent to decide
whether the formal requirements for a cassation appeal had been
complied with. If an accused’s appeal is not filed and signed
by an advocate, it must be rejected on formal grounds. If such an
appeal complies with the formal requirements, the case is referred to
the Supreme Court.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant alleged a breach of Article 3 of the Convention in that
he had been detained in overcrowded cells and that the State had
failed to secure to him throughout his entire detention adequate
living conditions, in particular the statutory minimum cell space of
3 square metres per person, as required by national law.
A. The Government’s objection on exhaustion of
domestic remedies
1. The Government
The
Government submitted that as of 26 November 2009 the applicant had
been detained in a cell in which the statutory minimum space of
3 square metres per person had been respected. In these
circumstances, the situation giving rise to the alleged breach of
Article 3 of the Convention no longer existed and the applicant
should bring a civil action under Article 24 taken
in conjunction with Article 448 of the Civil Code in order to
seek compensation for the past violation.
In
that regard they relied, in particular, on the above mentioned
Orchowski judgment, reiterating that the Court, having regard
to the principle of subsidiarity, had held that in cases where the
alleged violation of Article 3 no longer continued and could not be
eliminated with retrospective effect, the only means of redress for
the applicant was pecuniary compensation.
In
view of the foregoing, the Government invited the Court to reject the
application for non exhaustion of domestic remedies, pursuant to
Article 35 § 1 of the Convention.
2. The applicant
The
applicant in general disagreed with the above arguments and
maintained that the remedy suggested by the Government could not
be considered “effective” for the purposes of
Article 35 § 1 of the Convention.
3. The Court
The
Court has already examined a similar objection based on exhaustion of
domestic remedies raised by the Government in the above mentioned
cases of Łatak v. Poland and Łomiński v.
Poland and considered their arguments not only in the context of
those two particular applicants but also in respect of other actual
or potential applicants with similar complaints. (see Łatak
v. Poland no. 52070/08 and Łomiński v. Poland
no. 33502/09 (dec.), 12 October 2010, §§ 71-85 and
§§ 62 76 respectively).
In so
doing, the Court had regard to the fact that on the date of the
adoption of its decisions there were 271 cases pending before it
where the applicants had raised complaints similar in substance,
alleging a violation of Article 3 in that at various times and
for various periods they had been adversely affected by the same
structural problem, having been detained in overcrowded,
insanitary cells (ibid. § 84 and § 75 respectively).
Having
found that a civil action under Article 24 taken in conjunction with
Article 448 of the Civil Code could be considered an “effective
remedy” for the purposes of Article 35 § 1 of the
Convention as from 17 March 2010 and having regard to the 3-year
limitation period for lodging such an action, the Court held that
essentially in all cases in which in June 2008 the alleged violation
had either been remedied by placing the applicant in
Convention-compliant conditions or had ended ipso facto because
the applicant had been released, the applicants concerned should
bring a civil action for the infringement of personal rights and
compensation (ibid. § 85 and § 76 respectively).
It
appears that in the present case the situation giving rise to the
alleged violation of Article 3 ended, at the latest, on 26 November
2009 when the applicant was placed in a cell in which the statutory
minimum space of 3 square metres per person was respected. That
being so and having regard to the fact that the applicant still has
adequate time to prepare and lodge with the Polish civil courts an
action under Article 24 taken in conjunction with Article 448 of the
Civil Code, he should, before having his Convention claim examined by
the Court, be required to seek redress at domestic level.
It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention
for non-exhaustion of domestic remedies.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 READ
IN CONJUNCTION WITH ARTICLE 6 § 3 (c) OF THE
CONVENTION
The
applicant complained that the Katowice Regional Court’s refusal
to grant him legal assistance in connection with the preparation of a
cassation appeal – a refusal given regardless of the fact that
such assistance was compulsory – had infringed his right to
defend himself and resulted in his irrevocably losing an opportunity
to institute cassation proceedings. He alleged a breach of
Article 6 § 1 read in conjunction with
Article 6 § 3 (c) of the Convention, which
read, in so far as relevant:
“1. 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. The parties’ arguments
1. The applicant
The
applicant complained that the Katowice Regional Court’s refusal
to grant him legal assistance in connection with the preparation of a
cassation appeal had infringed his right to defend himself and
resulted in his irrevocably losing an opportunity to institute
cassation proceedings. That, in turn, constituted a breach of Article
6 § 1 of the Convention.
The
applicant also considered that the refusal to grant him free legal
assistance had not pursued the “interests of justice”
within the meaning of Article 6 § 3 (c). The Regional Court’s
decision not to grant him such assistance was not accompanied by any
reasoning and could not be the subject of any further appeal.
He
argued that, even though the grounds of the decision in question were
unknown, the decision was unjustified in the light of the fact that
already at the beginning of his trial he had presented documentary
evidence in support of his application for free legal assistance. On
that basis a lawyer had been appointed under the legal aid scheme to
represent him before the District Court and, subsequently, the
Regional Court.
In
conclusion, the applicant asked the Court to find a violation of
Article 6 §§ 1 and 3 (c), pointing out that the refusal to
grant him further free legal assistance in cassation proceedings not
only had affected his defence rights in a manner contrary to the
requirements of a “fair trial” but had also made it
impossible for him to have his case heard by a cassation court.
2. The Government
The
Government refrained from making comments in respect of the
applicant’s Article 6 complaint.
3. The Court
(a) General principles
The
Court emphasises the importance of the right of access to a court,
having regard to the prominent place held in a democratic society by
the right to a fair trial (see Airey v. Ireland, judgment of 9
October 1979, Series A no. 32, p. 12-13, § 24). A
restrictive interpretation of that right would not be consonant with
the object and purpose of this provision (see De Cubber v.
Belgium, judgment of 26 October 1984, Series A no. 86,
§ 30). However, this right is not absolute, but may be
subject to limitations; these are permitted by implication since the
right of access by its very nature calls for regulation by the State
(see Edificaciones March Gallego S.A. v. Spain, judgment of
19 February 1998, 1998-I, § 34; and Garcia
Manibardo v. Spain, no. 38695/97, § 36).
In
this respect, the Contracting States enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Convention’s requirements rests with the Court. It must be
satisfied that the limitations applied do not restrict or reduce the
access left to the individual in such a way or to such an extent that
the very essence of the right is impaired. Furthermore, a limitation
will not be compatible with Article 6 § 1 if it
does not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see Ashingdane v. the United Kingdom,
judgment of 28 May 1985, Series A no. 93, p. 24, § 57;
Prince Hans-Adam II of Liechtenstein v. Germany [GC],
no. 42527/98, § 44, ECHR 2001 VIII, mutatis
mutandis).
The Convention does not compel the Contracting States
to set up courts of appeal or of cassation. However, where such
courts do exist, the guarantees of Article 6 must be complied with,
including the right to free legal assistance. The manner in which
this provision applies to courts of appeal or of cassation depends on
the special features of the proceedings concerned and account must be
taken of the entirety of the proceedings conducted in the domestic
legal order and the court of cassation’s role in them. Given
the special nature of the court of cassation’s role, which is
limited to reviewing whether the law has been correctly applied, the
Court is able to accept that the procedure followed in such courts
may be more formal (see Meftah and Others v. France [GC],
nos. 32911/96, 35237/97 and 34595/97, § 41, ECHR
2002-VII). However, the Court must satisfy itself that the method
chosen by the domestic authorities in a particular case is compatible
with the Convention (see, mutatis mutandis, in criminal law
proceedings, R.D. v. Poland, nos. 29692/96 and 34612/97, § 44,
18 December 2001; Kulikowski v. Poland, no. 18353/03, §§
58 and 59 ECHR 2009 ... (extracts); Antonicelli v.
Poland, no. 2815/05, §§ 33 and 34, 19 May 2009 and, in
civil law proceedings, Tabor v. Poland, no. 12825/02, §§
39-43, 27 June 2006).
Moreover,
the Court reiterates that the right of an accused to free legal
assistance, laid down in Article 6 § 3 (c) of the
Convention, is one of the elements inherent in the notion of fair
trial. That provision attaches two conditions to this right. The
first is lack of “sufficient means to pay for legal
assistance”, the second is that “the interests of
justice” must require that such assistance be given free (see,
among many other authorities, the Pham Hoang v. France
judgment of 25 September 1992, Series A no. 243 p. 23, § 39).
(b) Application of those principles to the
instant case
The
Court notes at the outset that the facts of the instant application
are similar to those in the case of R.D. v. Poland (see
R.D. v. Poland, nos. 29692/96 and 34612/97, 18 December
2001), in which a violation of Article 6 § 1 read in
conjunction with Article 6 § 3 (c) of the Convention was found
by the Court.
(i) “Sufficient
means to pay for legal assistance”
The
Court must first determine whether the applicant, who had been
exempted from the costs of legal assistance throughout the
proceedings at first and second instance, should, given his financial
means, have obtained further free assistance for the preparation of a
cassation appeal.
In
resolving that issue, the Court cannot substitute itself for the
Polish courts in order to evaluate the applicant’s financial
situation at the material time but must 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).
In
that connection, the Court notes that in its judgment of
23 April 2004 the Katowice Regional Court held that the
applicant should be exempted from all the costs of the appellate
proceedings, including legal assistance. That finding implies that
the court had a sufficient basis to consider that bearing those costs
would constitute a “disproportionate burden” for the
applicant, within the meaning of Article 556 of the Code (see
paragraph 15 above).
Two
months later, on 22 June 2004 and again, three months later, on
16 July 2004, the applicant was informed that the same court had
refused to grant him further free legal assistance in connection with
his intended cassation appeal (see paragraphs 20 and 24 above). It
does not appear that the applicant’s financial situation had in
the meantime improved. Nor does it emerge from the relevant decisions
on what concrete circumstances the Regional Court had based its
opinion that the applicant could afford such costs in cassation
proceedings, despite the fact that he had previously been exempted
from the costs of his legal representation at first instance and on
appeal.
Against
that background, the Court finds that in the present case there were
reasonable grounds to consider that the applicant’s financial
means were limited. Hence, there were strong indications that he did
not have “sufficient means to pay for legal assistance”
within the meaning of Article 6 § 3 (c) (see R.D. v.
Poland, ibid. §§ 45 and 46).
(ii) The
requirement of the “interests of justice”
It
remains for the Court to ascertain whether, having regard to the
particular circumstances of the case and the criteria emerging from
its case law, the “interests of justice” required
that the applicant be granted such assistance.
In
previous cases before it, the Court has set out the applicable
criteria. It has, for instance, held that the nature of the charges
against the applicant, the need to develop appropriate arguments on
complicated legal issues or the complexity of the cassation procedure
may, from the point of view of the interests of justice, necessitate
that he be granted free legal assistance (see the Pham Hoang
cited above, ibid. § 40 in fine; and the Twalib v.
Greece judgment of 9 June 1998, Reports 1998-IV,
pp. 1430-31, §§ 52-53).
There
is, however, a primary, indispensable requirement of the “interests
of justice” that must be satisfied in each case. That is the
requirement of a fair procedure before courts, which, among other
things, imposes on the State authorities an obligation to offer an
accused a realistic chance to defend himself throughout the entire
trial. In the context of cassation proceedings, that means that the
authorities must give an accused the opportunity of putting his case
before the cassation court in a concrete and effective way (see the
Vacher v. France cited above, ibid. § 30).
In
that regard, the Court notes that Polish law did not (and still does
not) give a convicted appellant the choice between appointing a
lawyer or preparing his cassation appeal himself. A defendant has to
be assisted by an advocate in the preparation of a cassation appeal,
an appeal filed by himself being rejected (see paragraphs 27-29
above).
The
applicant could, accordingly, have obtained access to the cassation
court only through a lawyer – either one of his choice (Article
83 of the Code) or one appointed by the relevant court (Article 78 of
the Code). He should moreover have had his appeal filed within thirty
days after the appellate court’s judgment had been served on
him (see paragraphs 27 and 29 above).
The
Katowice Regional Court could not have been unaware of those legal
prerequisites. It was, therefore, incumbent on that court to handle
the applicant’s application for legal assistance in a way that
would have enabled him to prepare his cassation appeal properly and
to put his case before the Supreme Court.
However,
not only did the Regional Court refuse to grant the applicant further
free assistance but it also communicated its first refusal to him two
days before the expiry of the time-limit for the submission of his
cassation appeal (see paragraphs 17, 19 and 20 above).
In
the Court’s view, the shortness of the time left to the
applicant for appointing a lawyer of his choice and for preparing the
intended cassation appeal did not give him a realistic opportunity of
having his case brought to and defended in the cassation court in a
“concrete and effective way” (see R.D. v. Poland,
ibid. §§ 47 and 51).
There
has, accordingly, been a breach of Article 6 § 1 read in
conjunction with Article 6 § 3 (c) 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.”
A. Damage
The
applicant claimed 10,000 EUR in respect of
non-pecuniary damage for the alleged violation of Article 6 of the
Convention.
The
Government submitted that the applicant’s claim was excessive.
The
Court accepts that the applicant has suffered non-pecuniary damage,
such as distress and frustration resulting from the impossibility of
defending himself effectively in cassation proceedings. Making its
assessment on an equitable basis, the Court awards the applicant
EUR 2,000 under this head.
B. Costs and expenses
The
applicant did not claim any costs and expenses.
C. Default interest
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
Declares the complaint under Article 6
admissible and the remainder of the application inadmissible;
Holds
that there has been a violation of Article 6 § 1 read in
conjunction with Article 6 § 3 (c) of the Convention;
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 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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 13 September 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
