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FOURTH
SECTION
CASE OF
KĘDRA v. POLAND
(Application
no. 57944/08)
JUDGMENT
STRASBOURG
17 April
2012
This
judgment is final. It may be subject to editorial revision.
In the case of Kędra v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
George Nicolaou, President,
Ledi
Bianku,
Vincent A. De Gaetano, judges,
and Fatoş
Aracı, Deputy
Section Registrar,
Having
deliberated in private on 27 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 57944/08) 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 Henryk Kędra (“the
applicant”), on 20 November 2008.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
28 June 2010 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1955 and lives in Gorzów Wielkopolski.
- The
applicant was involved in administrative proceedings. He claimed
reinstatement to work in the police after his dismissal from the
Security Service (Służba Bezpieczeństwa) and a
refusal to hire him by the police, both given in 1990. The
first-instance decision was issued by the Chief Officer of the
Internal Security Agency (Szef Agencji Bezpieczeństwa
Wewnętrznego) on 1 June 2006. That authority refused to hire
the applicant and to count the period since 1990 towards his service.
- The
applicant requested that his case be re-examined. On 7 July 2006
the Chief Officer upheld the contested decision. On 15 January
2007 the Warsaw Regional Administrative Court quashed both the first-
and second instance decision, finding that the authority had
failed to establish the content of the applicant’s claim.
- On
13 July 2007 the Chief Officer discontinued the proceedings, finding
that in so far as the applicant had requested to be hired by the
police, that request could not be determined by way of an
administrative decision. In so far as he claimed that the period from
1990 should be counted towards the period of his service in the
police, this claim had no basis in substantive law.
- The
applicant again requested that his case be re examined. On
25 September 2007 the Chief Officer upheld the contested
decision.
- The
applicant appealed against this decision to the Warsaw Regional
Administrative Court. That court gave a judgment in the case and
dismissed the applicant’s appeal on 28 March 2008, finding that
the contested decisions were lawful.
- The
applicant requested that legal-aid assistance be granted to him for
the purposes of lodging a cassation appeal against this judgment with
the Supreme Administrative Court. His request was granted and the
local Bar Association assigned a lawyer to his case on 3 June 2008.
The applicant gave a power of attorney for that lawyer on 10 June
2008.
- On
2 July 2008 the lawyer lodged a cassation appeal with the Supreme
Administrative Court together with a request for retrospective leave
to appeal out of time (see paragraph 16 below).
- On
10 July that court refused to grant leave to appeal out of time. The
court found that the legal-aid lawyer had been informed that he had
been assigned to represent the applicant on 3 June 2008. On 10 June
2008 that he had been served with the power of attorney, authorising
him to act on the applicant’s behalf. It was only on the day
following the latter date that the lawyer had had a realistic
opportunity of starting to act on the applicant’s behalf in the
preparation of the cassation appeal. Hence, the seven-day time limit
for lodging a request for a retrospective leave to appeal out of time
and lodging a cassation appeal together with it had started to run on
11 June 2008. Consequently, such a request should have been submitted
to the court within seven days, on 18 June 2008 at the latest. The
applicant’s lawyer had failed to comply with that time-limit as
he had submitted his request for leave together with the cassation
appeal only on 2 July 2008.
-
The applicant’s lawyer appealed against this decision, arguing
that the seven-day time-limit to prepare a cassation appeal together
with the request for retrospective leave to appeal, counted from the
date when the legal-aid lawyer had received the power to act on the
party’s behalf, was unrealistic and that it should be
contrasted with the normal thirty day time limit for
preparation and lodging of a cassation appeal in normal
circumstances. A legally aided party was unduly penalised by
that difference in the relevant time-limits.
- On
4 September 2008 the court dismissed his appeal, sharing the
conclusions of the first instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the procedure for
lodging cassation appeals with the Supreme Administrative Court
against judgments of the Regional Administrative Courts are stated in
the Court’s judgment in the case of Subicka v. Poland,
no. 29342/06, §§ 12 21, 14 September
2010.
- In
particular, in its decision no. II FZ 651/07 of 18 January
2008 the Supreme Administrative Court 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 by a legally-aided
applicant could be admitted for examination.
- When
legal aid has been granted and the time-limit for the submission of a
cassation appeal has already expired, it is open to the legally-aided
party to submit the appeal together with a request for leave to
appeal out of time made under sections 86 and 87 of the Law on the
Procedure before Administrative Courts (e.g. NSA FZ 754/04 of
31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In
certain cases the courts stated that such a request should be
submitted within seven days from the date on which the lawyer
obtained a power of attorney from the party, which date is considered
as the date on which the impediment to lodging an appeal ceased to
exist (e.g. the Białystok Regional Administrative Court, II SAB
Bk 27/07 of 10 April 2008), or from the date when the lawyer could
obtain effective access to the case file (e.g. the Poznań
Regional Administrative Court, IV SA/Po 865/06 of 13 November
2007).
- In
a number of its recent decisions the Supreme Administrative Court
acknowledged the difficulties which legally aided parties
experienced in connection with lodging their cassation appeals
against judgments of the first-instance administrative courts. It
expressed the view that they should not be penalised for the
fact that their requests for legal aid were not processed speedily
enough. It analysed relevant case-law of the administrative
courts and noted that the manner in which the beginning of
the time-limit for lodging cassation appeals was determined had
led to divergent results. It held that it was necessary to
determine the relevant time in a manner compatible with effective
access to the highest administrative court and which ensured equal
treatment for parties represented by lawyers appointed under the
legal aid scheme and by privately hired lawyers. The court
held that the time-limit for a legally-aided party started to run
only on the day when a legal-aid lawyer had a genuine possibility of
lodging the cassation appeal and not when he or she was informed of
having been assigned to the case. The court was of the view that the
latter approach was far too rigorous and rendered the effective
enjoyment of legal assistance granted under the legal-aid system
illusory. In any event, the cassation appeal had to be lodged within
thirty days from the day on which the party was informed of the
appointment of the legal-aid lawyer (I FZ 569/06 of 8 December
2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March
2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008;
I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II
OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS ACCESS TO THE SUPREME ADMINISTRATIVE COURT
- The
applicant complained that he had been denied access to the Supreme
Administrative Court, in breach of Article 6 § 1 of the
Convention, which reads as follows:
“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 this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 (a) 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 complained that he had been denied access to the
Supreme Administrative Court.
- The
Court has already had occasion to set out at length the relevant
principles derived from its case-law in this area (Siałkowska
v. Poland, no. 8932/05, §§ 99-107,
22 March 2007; Smyk v. Poland, no. 8958/04,
§§ 54-59, 28 July 2009; Zapadka v. Poland,
no. 2619/05, §§ 57 61, 15 December
2009). It adopts those principles for the purposes of the instant
case.
-
The same question arises in the context of the present case as that
examined by the Court in the cases referred to above, namely whether
the applicant was deprived of access to the Supreme Administrative
Court.
- The
Court observes that it has already dealt with this question in the
context of criminal as well as civil procedure before the Polish
courts.
- As
far as criminal procedure 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 (the Supreme
Court, decision II KZ 16/08 of 20 February 2002). 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). Subsequently,
in 2008 the Supreme Court also stated that the strand of the case-law
based on that approach was correct as providing adequate guarantees
to the defendant by indicating in an unequivocal way the date on
which the time limit started to run.
- 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, a legal-aid
lawyer’s refusal to prepare it did 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
rather rare 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, referred to above, §§ 63 65).
- In
so far as procedure before the administrative courts is concerned,
the Court first observes that where a party to proceedings is
represented by a lawyer, the procedural time-limits set by the Act on
Procedure before Administrative Courts start to run on the date of
the service of judicial decisions on the lawyer. 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, would expire.
- The
situation is significantly different where a party does not have
legal representation before the Regional Administrative Court, as in
the present case, and is granted legal aid only after the
second instance judgment has been given and served on him or
her.
- The
case law of the Supreme Administrative Court provides that the
time-limit for lodging a cassation appeal starts to run from the date
on which the judgment of the Regional Administrative Court has been
served on the non-represented party. The administrative courts have
repeatedly held that his or her request for legal aid does not affect
the running of the time limit (see Relevant domestic law above).
However, they have also acknowledged that a party who was
subsequently granted legal aid was put in a difficult position,
because at the time of service the time limit had already
started to run. A lawyer subsequently assigned to the case had
therefore less time to examine the case and decide, still within the
time-limit, whether a cassation appeal offered prospects of success
and to prepare an appeal. This might lead to a situation where
lawyers subsequently assigned to the case only learned about their
appointments after the time limit for lodging the cassation
appeal had expired.
- The
Supreme Administrative Court has, on numerous occasions, addressed
this problem. As a result, a body of case-law has been developed to
the effect that in situations where a legal-aid lawyer has been
appointed after the time-limit for lodging a cassation appeal had
expired and he or she is willing to prepare it, the administrative
courts could grant leave for submitting a cassation appeal out of
time. Under the case law of the Supreme Administrative Court the
day on which the impediment for lodging the cassation appeal ceased
to exist is defined as the day on which the lawyer has
had a genuine possibility to prepare it. Thus, the seven day
time limit begins to run only after the legal-aid lawyer
has had sufficient time to study the file.
The
Court notes that this jurisprudential approach resulted from the
administrative courts’ concern about the difficulties
encountered by legally-aided parties and can be said to be compatible
with the Convention standards as regards ensuring fair access to the
cassation procedure (see also Subicka v. Poland (no. 2), nos.
34043/05 and 15792/06, § 10, 21 June 2011).
The Court is of the view, in line with its case-law referred
to above and also in line with the many judgments of the Polish
administrative courts summarised above (see paragraphs 15-16 above)
that the determination of the time-limit for legally aided parties
should be made in a manner compatible with effective access to the
highest administrative court and which ensured equal treatment for
parties represented by lawyers appointed under legal aid scheme and
by privately hired lawyers.
- Turning
to the circumstances of the present case, the Court observes that the
legal-aid lawyer was assigned to the case on 3 June 2008. He
obtained the authorisation to act on the applicant’s behalf on
10 June 2008. The administrative court found that it was only on the
following day that the seven-day time limit for lodging a cassation
appeal had started to run. The Court notes that the Regional
Administrative Court, in its decision of 10 July 2008, and
subsequently the Supreme Administrative Court in its decision of 4
September 2008, had due regard to difficulties which could have
arisen for legally-aided parties in the proceedings concerning
lodging of cassation appeals. The Court is satisfied that the
beginning of that time-limit was determined by the administrative
courts in the manner most advantageous for the applicant and with due
regard being had to the necessity of alleviating the situation of
legally-aided parties arising from the difficulties to examine the
case and prepare a cassation appeal within the time limits set
out by the applicable procedural law.
- The
Court therefore concludes, having regard to the circumstances of the
case seen as a whole, that in the particular circumstances of the
present case there has been no violation of Article 6 § 1
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION AS REGARDS THE ADMISSIBILITY AND ASSESSMENT OF THE
EVIDENCE
- The
applicant complained that the domestic authorities had wrongly
assessed the evidence and, as a result, had failed to establish the
facts of the case correctly. They had wrongly applied domestic law
and had given erroneous judgments.
- The
Court reiterates that, 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 Schenk
v. Switzerland, 12 July 1988, §§ 45-46,
Series A no. 140, and García Ruiz v. Spain
[GC], no. 30544/96, ECHR 1999-I, § 28).
- It
follows, even assuming that in the circumstances of the present case
the applicant can be said to have exhausted the domestic remedies,
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.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning access to the
Supreme Administrative Court admissible and the remainder of the
application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı George
Nicolaou
Deputy Registrar President
