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FOURTH
SECTION
CASE OF JĘDRZEJCZAK v. POLAND
(Application
no. 56334/08)
JUDGMENT
STRASBOURG
11 January
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Jędrzejczak v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Ján Šikuta,
President,
Lech Garlicki,
Vincent A. de Gaetano,
judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 6 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 56334/08) 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
Janusz Jędrzejczak (“the applicant”), on 14 November
2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
7 September 2009 the President of the Fourth Section decided to give
notice of the application to the Government.
- In
accordance with Protocol No. 14, the application was allocated to a
Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Bialystok.
- In
2007 the applicant filed a motion for a disability pension with the
Social Security Board. Subsequently, the Board found that he was not
entitled to it.
- On
13 November 2007 the Białystok Regional Court refused to grant
the pension to the applicant.
- On
7 May 2008 the Białystok Court of Appeal dismissed the
applicant's appeal. The judgment was served on the applicant on
15 May 2008. By a decision of 27 May 2008 the Court of Appeal
allowed the applicant's request for a legal-aid lawyer to be assigned
to the case for the purposes of cassation proceedings.
- On
2 June 2008 a lawyer was assigned by the Regional Bar Council to
represent the applicant. The lawyer was informed by the Bar at the
same time that the time-limit for lodging a cassation appeal was to
expire on 15 July 2008.
- In
her letter to the court of 23 June 2008 the lawyer stated that she
had found no points of law on which a cassation appeal could be based
in the applicant's case.
- On
9 July 2008, upon the applicant's request, the Court of Appeal
transmitted the lawyer's letter to him. The applicant filed a motion
to be granted a second legal-aid lawyer. The motion was dismissed on
15 July 2008, the court finding that the applicant had already
been granted a legal aid lawyer.
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.
13. 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
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 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 unfairly prevented from having
his case brought before and examined by the Supreme Court.
- The
Government, who were invited to submit observations on the case, did
not do so.
-
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 first 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 Smyk v. Poland,
referred to above, § 63). In such situations no
difficulties arise in connection with establishing the date on which
the thirty-day time-limit for lodging a cassation appeal, applicable
at the material time, is to expire.
- The
situation is significantly different where, as in the present case, a
party 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 the
non-represented party. 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 courts have
repeatedly held that his or her request for legal aid does not affect
the running of the time limit. A 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). In the present case the second instance judgment, together
with its written grounds, was served on the applicant on 15 May 2008.
It was on that date that the sixty-day time-limit for lodging the
cassation appeal started to run. Subsequently, the applicant's
request for legal aid was granted on 27 May 2008. However, the
decision on the grant of legal aid did not affect the running of the
time limit, which was to expire on 15 July 2008. On 2 June 2008
a lawyer was assigned by the Regional Bar Council to represent the
applicant. On 23 June 2008 the legal-aid lawyer informed the
court that she had found no grounds on which to prepare a cassation
appeal.
- The
Court observes that, had the applicant been promptly informed of the
lawyer's refusal, he would have still had three weeks before the
expiry of the time-limit. However, it was only after sixteen days, on
9 July 2008, that the Court of Appeal transmitted the refusal to
the applicant.
It
further notes that under the domestic law applicable at the relevant
time the legal aid lawyers were not obliged to inform also the
represented party about their refusal to prepare a cassation appeal.
-
The Court reiterates that it has already dealt with the question of
whether legally-aided parties finding themselves in such situation
were left with no other procedural possibilities to have cassation
appeals lodged in the context of criminal as well as civil procedure.
As far as the former is concerned, it was established that –
under the established case-law of the Supreme Court – the
time-limit for lodging a cassation appeal should run de novo
from the day when the applicant has been informed of the legal-aid
lawyer's refusal to lodge a cassation appeal. This approach was found
to satisfy Convention standards, provided that the applicant has been
properly informed about his/her procedural rights at the time when
the lawyer's refusal was communicated to him or her (Kulikowski
v. Poland, no. 18353/03, § 69-71,
ECHR 2009 ... (extracts); Antonicelli
v. Poland, no. 2815/05,
§ 44-45, 19 May 2009).
- In
the context of civil procedure the Court has found that the civil
courts' approach to the calculation of the time-limit for submitting
a cassation appeal was stricter. Thus, the service on the party of
information that a legal-aid lawyer refused to prepare the appeal
does not trigger the running of the time-limit de novo. That
approach was regarded by the Court as being incompatible with
Convention standards, save for situations where the refusal of the
legal-aid lawyer was notified to the applicant well before the
deadline was due to expire (see Smyk v. Poland,
no. 8958/04, §§ 63 65, 28 July
2009).
- In
the present case, when the applicant was informed by the court about
the legal-aid lawyer's refusal, the time limit for the
submission of a cassation appeal to the Supreme Court was to expire
in six days. Subsequently the applicant unsuccessfully requested that
another legal-aid lawyer be assigned to the case. The Court is of the
view that the authorities cannot be criticised for refusing to grant
him assistance of a second legal aid lawyer. It has already
found, in the context of criminal proceedings, that Article 6 of the
Convention does not confer on the State an obligation to ensure
assistance by successive legal-aid lawyers for the purposes of
pursuing legal remedies which have already been found not to offer
reasonable prospects of success (see Antonicelli v. Poland,
§ 43; Kulikowski v. Poland, § 68). It
has also held that the same principle holds true in the context of
civil cassation. To hold otherwise would result in imposing on the
State, for the purposes of civil proceedings, a more far-reaching
procedural obligation in respect of legal aid than that applicable to
criminal cases. This would be incompatible with its case-law (see Del
Sol v. France, cited above, § 20; Smyk v. Poland,
cited above, § 61). However, the court's negative response
was served on the applicant on 15 July 2008, the date on which
the time-limit was to expire. In any event, even had the applicant
not renewed his request for legal aid, he was informed of the
legal aid lawyer's refusal only six days before the time-limit
was to expire. Hence, he was left with so little time to have a
cassation appeal prepared and lodged with the Supreme Court case as
to be deprived of a realistic opportunity of having his case brought
to and argued before that (compare and contrast with Smyk
v. Poland, cited above, where after the refusal to assign a
second legal aid lawyer to the case the applicant had
twenty-four days left).
- Having
regard to the above considerations, the Court concludes that in the
present case there has been a violation of Article 6 § 1
of the Convention.
II. 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 euros (EUR) in respect of pecuniary and
non pecuniary damage. The Government did not submit their
comments.
- The
Court, having regard to awards made in similar cases against Poland,
referred to above (see paragraph 14), awards the applicant
EUR 1,000 in respect of non-pecuniary damage.
B. 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 application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
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;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 11 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Ján Šikuta
Deputy
Registrar President
