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FIRST
SECTION
CASE OF
SIAŁKOWSKA v. POLAND
(Application
no. 8932/05)
JUDGMENT
STRASBOURG
22
March 2007
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 Siałkowska v. Poland,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs F. Tulkens,
Mrs N. Vajić,
Mr A.
Kovler,
Mrs E. Steiner,
Mr L. Garlicki, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 15 February 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 8932/05) 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 Krystyna Siałkowska
(“the applicant”), on 28 February 2005.
- The
applicant, who had been granted legal aid, was represented by
Ms Bogdana Słupska-Uczkiewicz, a lawyer practising in
Wrocław. The Polish Government (“the Government”)
were represented by their Agent, Mr Jakub Wołąsiewicz.
- The
applicant complained under Article 6 § 1 of the Convention that
the proceedings had been unfair in that she had been denied effective
access to a court. She referred to the fact that the lawyer appointed
under applicable legal aid scheme had failed to undertake the
necessary steps to represent her interest effectively in that he had
refused to bring the cassation appeal to the Supreme Court against a
judgment of the appellate court.
- The
application was allocated to the First Section of the Court (Rule 52
§ 1 of the Rules of Court). Within that Section, the
Chamber that would consider the case (Article 27 § 1 of the
Convention) was constituted as provided in Rule 26 § 1.
-
The Chamber decided that in the interests of the proper
administration of justice, the proceedings in the present case should
be conducted simultaneously with those in the case of Staroszczyk
v. Poland (application no. 59519/00).
- The
applicants and the Government each filed further written observations
(Rule 59 § 1). In addition, third-party comments were received
from the Council of Bars and Law Societies of Europe and from the
Helsinki Foundation for Human Rights, which had been given leave by
the President to intervene in the written procedure (Article 36
§ 2 of the Convention and Rule 44 § 2).
- A
hearing took place in public in the Human Rights Building,
Strasbourg, on 15 June 2006 (Rule 54 § 3).
There appeared before the Court:
(a) for the Government
Mr Jakub Wołąsiewicz,
Ambassador, Agent,
Ms Małgorzata Kosicka, Legal Expert, Counsel,
Ms Eliza Suchożebrska, Third Secratary, Adviser;
(b) for the applicants
Mr Wojciech Hermeliński,
Ms Bogdana Słupska-Uczkiewicz, Counsel.
The Court heard addresses by Mr Jakub Wołąsiewicz, Mr
Wojciech Hermeliński, Ms Bogdana Słupska-Uczkiewicz and Ms
Eliza Suchożebrska.
- By
a decision of 15 June 2006, following the hearing on admissibility
and the merits, the Court declared the application partly admissible.
It joined the examination of the Government's objections as regards
incompatibility ratione personae and exhaustion of domestic
remedies to the merits of the case.
- The
applicants and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1950 and lives in Wrocław.
- After
the applicant's husband had died in September 2002, she instituted
proceedings in which she claimed her widow pension.
- By
a decision of 3 October 2002, the social insurance authority
dismissed her request.
- On
4 March 2003 the Wroclaw Regional Court dismissed her appeal against
this decision. On 2 September 2004 the Wroclaw Court of Appeal
dismissed her further appeal.
- The
appellate court observed that the findings of fact made by the social
insurance authority were correct. The applicant and her husband had
de facto separated in 1994. He had been living since then with
another woman. The applicant had not been receiving any maintenance
payments from him. When he had fallen ill, she had not been taking
care of him and she had been informed of his poor health only in
March 2002. The court considered that the lower court had not erred
when it assessed the testimony of one witness, who had submitted that
the couple had been living together, as not being credible. The
appellate court concluded that the legal requirements for granting a
widow pension were not complied with.
- The
applicant requested that legal aid for the purposes of lodging a
cassation appeal with the Supreme Court be granted to her and her
request was allowed. The court requested the local Bar Association to
assign a lawyer to the case and advocate Z.W. was so assigned on
17 September 2004.
- The
copy of the judgment of the appellate court was served on Z.W. on
9 November 2004.
- By
a written opinion of one page and a half dated 3 December 2004
Z.W. advised the applicant that, in his view, a cassation appeal
against the judgment of the appellate court did not offer reasonable
prospect of success. He referred to the written grounds of the
judgment of the appellate court by which that court had explained why
the applicant had not complied with the requirements of the
applicable law, and considered that in the light of the evidence
examined by the courts, there were no grounds on which to argue that
the second-instance judgment was in breach of the law. Consequently,
he did not draw up the cassation appeal.
- The
opinion contained the following paragraph:
“I would like to stress that the judgment of the
Wroclaw Court of Appeal of 2 September was served on me on 9
October (sic) 2004 and that the thirty-day time-limit for the
lodging of a cassation appeal expires on 9 December 2004.”
- On
6 December 2004 the applicant had a meeting with the lawyer at his
office. He gave her his opinion and informed her that he saw no
grounds on which to prepare a cassation appeal in her case. On the
same occasion the applicant was served with the copy of the appellate
court's judgment with its written grounds.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant provisions of the Constitution
- Article
45 of the Constitution, insofar as relevant, reads:
“Everyone shall have the right to a fair and
public hearing of his case, without undue delay, before a competent,
impartial and independent court. ...”
- Article
17 of the Constitution, insofar as relevant, reads:
“By means of a statute, associations may be
created within a profession in which the public repose confidence,
and such professional associations shall concern themselves with the
proper practice of such professions in accordance with, and for the
purpose of protecting, public interest.”
B. Legal aid
- Pursuant
to Article 5 of the Code of Civil Procedure, a court should give all
necessary procedural instructions to a party acting without a lawyer
and, in particular should indicate the consequences of that party's
acts or failures to act.
- Article
113 § 1 of the Code of Civil Procedure provides that a party to
the proceedings may ask the court competent to deal with the case to
grant him or her an exemption from court fees provided that he
submits a declaration to the effect that the fees required would
entail a substantial reduction in his and his family's standard of
living.
- Pursuant
to Article 117 of the Code, persons exempted from the court fees may
request that legal aid be granted to them. The court will then
request the relevant District Bar Association or the District Chamber
of Legal Advisers to assign an advocate or a legal adviser to the
claimant's case.
C. The cassation appeal
- At
the material time, a party to civil proceedings could lodge a
cassation appeal with the Supreme Court against a judicial decision
of a second-instance court which terminated the proceedings.
- Under
Article 393 4 § 1 of the Code of Civil Procedure a
cassation appeal had to be lodged with the court that had given the
relevant decision within one month from the date on which the
decision with its written grounds was served on the party concerned.
Cassation appeals which were not lodged by an advocate or a legal
adviser would be rejected.
- Article
393 1 of the
Code as applicable at that time listed the grounds on which a
cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the
following grounds:
1) a breach of substantive law by its
erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that
defect could significantly affect the outcome of the case.”
- Article
393 3 specified
the requirements of a cassation appeal. It read in its relevant part:
Ҥ 1. A cassation appeal should
include:
1) an indication of the decision under appeal
together with information as to whether the appeal is lodged against
this decision in its entirety or in part only;
2) an indication of the grounds for the
cassation appeal;
3) arguments showing that its examination
would be justified;
4) a motion to have the decision under appeal
quashed or amended, specifying also the scope of the motion.”
- Article
393 4 read as
follows:
“A second-instance court rejects in a hearing held
in camera a cassation appeal lodged after a prescribed time-limit or
which is inadmissible on other grounds (...).”
- The
reasons justifying the examination of a cassation appeal by the
Supreme Court could be inferred a contrario from Article 393
of the Civil Code of Procedure which, as applicable at that time,
read, in its relevant part:
“1. The Supreme Court may refuse to
entertain the cassation appeal, if:
i) there is no appearance of any significant
legal issue in the case,
ii) there is no need for the interpretation
of provisions raising serious doubts or causing discrepancies in the
courts' case law,
iii) the appeal is manifestly ill-founded.
2. Paragraph 1 shall not apply if the
judicial decision challenged manifestly breached the law or where the
proceedings are invalid in law.”
D. Judgment of the Constitutional Court of 31 March
2005
- In
its judgment of 31 March 2005 the Constitutional Court examined a
number of constitutional complaints in which the complainants argued
essentially about certain provisions of Article 393 of the Code of
Civil Procedure, also insofar as they regulated the conditions that
cassation appeals had to comply with.
- The
Court observed, inter alia, that certain terms describing the
conditions which cassation appeals had to meet under Article 393
et seq. of the Code (“important legal issue”,
“provisions raising serious doubts or causing discrepancies in
the courts' case law”, “arguments showing that
examination of the cassation appeal would be justified”) were
drafted in the broadest terms. It noted that the judicial practice
regarding their application had given rise to serious
interpretational difficulties and discrepancies in the case law
of the Polish courts.
E. Relevant provisions of the Bar Act
- Article
1 of the Bar Act of 1982, as amended, reads, insofar as relevant:
“1. The Bar is
established to provide legal assistance, co-operate in protecting a
person's rights and freedoms as well as to formulate and apply the
law.
2. The Bar is organized as
a self-governing association.
3. An advocate whilst
executing his/her professional duties is accountable only to the
law.”
- Article
3 of the Act provides as follows:
“The general tasks of the professional Bar Council
are as follows:
1) creation of conditions
for the performance of the Bar's statutory tasks,
2) representation of the
Bar and protection of its rights,
3) supervision over the
observance of the rules regulating the practice of the profession,
4) development of professional skills and training of
advocates,
5) determination and promotion of professional ethics
and ensuring their observance,
6) management (...) of the Bar's
assets.”
- Article
28 of the Act reads:
“1. An advocate may only refuse
to provide legal assistance for important reasons of which he must
notify the interested party. Any doubts as to whether to provide
legal assistance or refuse to do so shall be resolved by the local
Bar Council, and in situations where time is of the essence, by the
Dean of that Council.
2. In cases where legal assistance is
granted on the basis legal regulations concerning legal aid, only the
entity appointing the advocate to represent the client may decide to
relieve him or her from providing legal assistance.”
- Under
Article 21 § 3 of the Act, an advocate shall provide legal aid
services in the jurisdiction of a court where he or she has its
office.
- Lawyers
are bound to act in accordance with rules of professional and ethical
conduct enacted by the Bar Association. They may be held accountable
for professional misconduct or a breach of ethical principles in the
proceedings before the bar disciplinary court.
38. Under
Article 57 of the Body of Ethical Rules adopted by the
National Bar Council on 10
October 1998, when an advocate, either privately hired by the client
or appointed under legal aid scheme, considers that submission of an
appeal in a case offers no reasonable prospect of success and the
client disagrees with his or her view, the lawyer shall give notice
of termination of the power of attorney terminate the representation,
or notify the refusal to the body which appointed him or her.
F. Resolution of the Supreme Court of 2000 (III CZP
14/00)
- In
2000 the Supreme Court issued a resolution in reply to a legal
question whether a legal aid lawyer could refuse to lodge a cassation
appeal. It replied to the question in the positive.
- The
court observed that issues involved in the legal aid concerned not
only proper administration of justice, but also touched on human
rights, and a right of access to a court in particular. Nevertheless,
there was no comprehensive and coherent regulation of legal aid
available under Polish law.
- The
mere fact that it was necessary for a cassation appeal to be lodged
by a qualified representative was not open to criticism. However, a
certain conceptual confusion was to be noted in the provisions
governing legal aid as a whole, mostly because the legislator had
failed to harmonise the relevant provisions of civil and criminal
procedure. In particular, the scope of legal aid lawyers' obligations
when legal representation was mandatory was not directly addressed by
provisions of civil procedure. This was so partly because the
essential body of law concerning civil procedure had been enacted in
1964, while the provisions on mandatory legal representation for the
purposes of the cassation appeal had been introduced in 1996, when
this new kind of appeal had been created.
- As
a result, the scope of legal aid lawyers' obligations to provide a
party to the proceedings with “legal aid” in civil
proceedings was unclear. In particular, the provisions on the
lawyers' legal aid obligations in connection with cassation
proceedings before the Supreme Court lacked clarity. The court noted
that the judicial practice regarding the application of relevant
provisions had given rise to serious difficulties of interpretation
and discrepancies in the case-law of the Polish courts.
- The
court observed that the issue of possible conflict between the
opinion of a party granted legal aid and a lawyer assigned to
represent him or her for the purpose of cassation proceedings had not
been directly addressed by the applicable law. It further noted that
the notion of legal assistance could not be identified with a simple
obligation of a lawyer to act in accordance with the client's wishes.
The role of a legal aid lawyer had rather to be understood as
obliging him or her to provide legal advice to the party, including
as to the prospects of success offered by a cassation appeal against
a given judgment.
- The
constitutional role of the Supreme Court, the highest judicial
authority, was also an argument in favour of a conclusion that a
legal aid lawyer was not compelled by the will of the party to have a
cassation appeal lodged if such an appeal was bound to fail. In case
of a disagreement between the party and the lawyer, it was open to
the party to complain to the local Bar under Article 28 of the Bar
Act. The Bar could then appoint a new lawyer who could lodge a
cassation appeal, requesting at the same time to be granted leave to
appeal out of time under Article 169 of the Code of Civil Procedure.
It was true that the practice of the Supreme Court was not coherent
in that in some cases it had been rejecting such requests and in
other it accepted them. However, it did not prevent the parties from
having recourse to this course of action.
G. Retrospective leave to appeal out of time
- Pursuant
to Article 169 of the Code of Civil Procedure, a party to the
proceedings may ask for retrospective leave to perform a procedural
measure outside the prescribed time limit; this measure shall be
performed simultaneously with lodging the request.
H. Service of court correspondence
- Article
133 § 3 of the Code of Civil Procedure reads, insofar as
relevant:
“3. If a legal representative or a person
authorised to receive court correspondence on behalf of a party has
been appointed in a case, the court correspondence shall be served on
these persons.”
- Pursuant
to the case-law of the Supreme Court, if 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 him or her (III CRN 324/72; I UZ, 65/04).
III. RELEVANT NON-CONVENTION MATERIAL
A. Code of Conduct of the Council of Bars and Law
Societies of Europe
- The
Council of Bars and Law Societies of Europe has adopted a Code of
Conduct in the European Union.
- Its
Article 1 provides that a lawyer must serve the interests of justice
as well as those whose rights and liberties he or she is trusted to
assert and defend and it is his or her duty not only to plead his or
her client's case but also to be his or her adviser.
- A
lawyer's function therefore lays on him or her a variety of legal and
moral obligations, sometimes appearing to be in conflict with each
other, towards the client, the courts and other authorities before
whom the lawyer pleads his or her client's case or acts on his or her
behalf; the legal profession in general and each fellow member of it
in particular; the public for whom the existence of a free and
independent profession, bound together by respect for rules made by
the profession itself, is an essential means of safeguarding human
rights in face of the power of the state and other interests in
society.
- Pursuant
to Article 3.1.2 of the Code, a lawyer shall advise and represent his
or her client promptly, conscientiously and diligently.
- Under
Article 3.1.4 a lawyer shall not be entitled to exercise his or her
right to withdraw from a case in such a way or in such circumstances
that the client may be unable to find other legal assistance in time
to prejudice being suffered by the client.
B. Recommendations of the Council of Europe
1. Recommendation
No. R (81) 7 of the Committee of Ministers to Member States on
measures facilitating access to justice
- This
recommendation, insofar as most relevant, reads:
“4. No litigant should be prevented from being
assisted by a lawyer. The compulsory recourse of a party to the
services of an unnecessary plurality of lawyers for the need of a
particular case is to be avoided. Where, having regard to the nature
of the matter involved, it would be desirable, in order to facilitate
access to justice, for an individual to put his own case before the
courts, then representation by a lawyer should not be compulsory.”
2. Recommendation No. R (93) 1 of the Committee of
Ministers to Member States on effective access to the law and to
justice for the very poor
- The
Recommendation, in its most relevant parts, provides:
“Recalling that in addition to the right of access
to the law and to justice provided for in Article 6 of the European
Convention on Human Rights, the other provisions of the Convention
and particularly Articles 2, 3 and 8 are equally applicable to the
very poor, as are the other legal instruments of the Council of
Europe such as the European Social Charter;
Considering that this recommendation is intended to
improve, especially with regard to the very poor, existing legal
advice and legal aid systems, and therefore to complement existing
machinery with regard to the other categories of people for which the
systems were designed.
Recommends that the governments of member states:
1. Facilitate access to the law for the very poor (“the
right to the protection of the law”) by:
[...]
b. promoting legal advice services for the very poor;
[...]
3. Facilitate effective access to the courts for the
very poor, especially by the following means:
[...]
c. recognising the right to be assisted by an
appropriate counsel, as far as possible of one's choice, who will
receive adequate remuneration;
[...]
e. simplifying the procedure for granting legal aid to
the very poor, [...]”
3. Recommendation No. R (2000) 21 of the Committee of
Ministers to Member States on the freedom of exercise of the
profession of lawyer
- The
Recommendation provides, inter alia:
“The Committee of Ministers, under the terms of
Article 15.b of the Statue of the Council of Europe, [...]
Underlining the fundamental role that lawyers and
professional associations of lawyers also play in ensuring the
protection of human rights and fundamental freedoms; [...]
Considering that access to justice may require persons
in an economically weak position to obtain the services of lawyers,
Recommends the governments of member States to take or
reinforce, as the case may be, all measures they consider necessary
with a view to the implementation of the principles contained in this
Recommendation.
[...]
1. All necessary measures should be taken to respect,
protect and promote the freedom of exercise of the profession of
lawyer without discrimination and without improper interference from
the authorities or the public, in particular in the light of the
relevant provisions of the European Convention on Human Rights.
[...]
1. All necessary measures should be taken to ensure that
all persons have effective access to legal services provided by
independent lawyers,
2. Lawyers should be encouraged to provide legal
services to persons in an economically weak position.
3. Governments of member States should, where
appropriate to ensure effective access to justice, ensure that
effective legal services are available to persons in an economically
weak position, in particular to persons deprived of their liberty.
4. Lawyers' duties towards their clients should not be
affected by the fact that fees are paid wholly or in part from the
public funds.”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS
1. Incompatibility ratione personae with the provisions
of the Convention
- The
Government first argued that the application was incompatible ratione
personae with the provisions of the Convention. In the present
case the court had acknowledged the need for the applicant to be
represented by a legal aid lawyer and such a lawyer had been assigned
to the case. However, any disagreements that might have arisen
between the applicant and the lawyer in connection with the issue of
lodging of the cassation appeal had not incurred the liability of the
State. The lawyer had been a member of an independent and
self governing professional association, which adopted its own
rules of conduct and disciplinary regulations. The public authorities
did not exercise any direct control over the methods of the lawyers'
work and could not impose on a legal aid lawyer an obligation to draw
up a cassation appeal.
- It
followed from the independence of the legal profession that the
conduct of the defence was essentially a matter between the defendant
and his counsel, whether counsel be appointed under a legal aid
scheme or be privately financed, and, as such, could not, other than
in special circumstances, incur the State's liability under the
Convention. The Government referred to the Court's case law in
similar cases (Artico v. Italy, judgment of 13 May 1980,
Series A no. 37, § 18; Daud v. Portugal, judgment of
21 April 1998, Reports of Judgments and Decisions 1998-II,
§ 33). They reiterated that special guarantees required
with regard to defence rights in criminal proceedings were not
applicable in the same way in civil proceedings (Skrobol
v. Poland, no. 44165/98, dec. 8 July 2003).
- The
applicant disagreed with the Government and maintained that the State
could not be regarded as not bearing any responsibility for the
conduct of legal aid cases such as this concerned in the present
case.
-
The Court notes that there is a close link between the Government's
preliminary objection and the applicant's above complaint under
Article 6 of the Convention. For this reason, in its decision on
the admissibility of the application it joined the examination of
this objection to the merits of the case (see paragraph 8 above). The
Court confirms its approach.
2. Non-exhaustion of domestic remedies
- The
Government furthermore argued that the applicant had failed to
exhaust all the remedies available under Polish law as required by
Article 35 § 1 of the Convention.
- Firstly,
they submitted that if the applicant had been dissatisfied with the
legal assistance she received from the officially appointed lawyer,
it had been open to her to make a complaint to the local Bar
Association under Article 28 of the Bar Act and to ask that
another lawyer be assigned to her case. If the local Bar Association
had shared her doubts regarding the soundness of the lawyer's refusal
to draw up a cassation appeal, it could have appointed another lawyer
to represent her. Even assuming that this new lawyer would not have
had time to submit a cassation appeal within the time-limit provided
for by law, he or she could have done that after the expiry of that
time-limit and, at the same time, requested retrospective leave to
appeal out of time.
- Secondly,
the applicant could have appointed a lawyer of her own choice for the
purposes of representing her before the Supreme Court.
- Thirdly,
the applicant could also have requested the Minister of Justice, the
Prosecutor General or the Ombudsman, to lodge a cassation appeal on
her behalf within six months from the date of the service of the
judgment.
- Having
regard to the subsidiary character of the supervision carried out by
the European Court of Human Rights, the Government concluded that the
application should be rejected for failure to exhaust relevant
domestic remedies.
- The
applicant submitted that, having been served by her legal aid lawyer
with the copy of the second-instance judgment on 6 December
2004, she had believed that the thirty-day time-limit for lodging a
cassation appeal had started to run, according to information
provided for by Z.W, on 9 October 2004. Accordingly, she had
been convinced that it had expired on 9 November 2004. Even assuming
that she had known that on 6 December she had still had three
days within which to lodge a cassation appeal, she did not have any
realistic opportunity to have a legal aid lawyer assigned to the case
within such a short time and to have the appeal lodged on her behalf.
- The
Court notes that there is a close link between the Government's
preliminary objection and the applicant's above complaint under
Article 6 of the Convention. For this reason, in its decision on
the admissibility of the application it joined the examination of
this objection to the merits of the case (see paragraph 8 above). The
Court confirms its approach.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
the proceedings in her case had been unfair in that she had been
denied effective access to the court.
Article
6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
1. The parties' submissions
- The
Government pointed out that the applicant's request for legal aid for
the purposes of legal assistance in connection with the cassation
proceedings had been granted by the appellate court. The State had
thereby discharged its obligations under Article 6 of the Convention
to ensure effective access to a court by acceding to the applicant's
request for legal aid.
- Having
carefully considered her case, the lawyer had refused to prepare a
cassation appeal on her behalf and provided a reasonable explanation
of the reasons for his decision. In this connection, the Government
emphasised that the notion of legal aid, within the meaning of the
applicable provisions of domestic law and of the resolution of the
Supreme Court of 21 September 2000, was not limited to carrying out
instructions of a client. Its essence consisted in providing legal
advice to the parties according to the lawyer's best knowledge.
Hence, a decision not to pursue the applicant's case further also
fell within the ambit of the notion of legal aid.
- The
legal opinion of 6 December 2004 prepared by Z.W. had been aimed at
securing proper administration of justice in the cassation
proceedings before the Supreme Court. The Government emphasised that
this opinion had been extensively reasoned. The legal aid lawyer had
stressed that in the circumstances of the case there had been no
factual or legal grounds on which to lodge a cassation appeal.
- The
Government further recalled that a State could not be held
responsible for every shortcoming on the part of a lawyer appointed
for legal aid purposes (Artico v. Italy, judgment of
13 May 1980, Series A no. 37, § 36). It
followed from the independence of the legal profession from the State
that the conduct of defence
was essentially a matter between the defendant and his
counsel, whether counsel be appointed under a legal aid scheme or be
privately financed (Kamasinski v. Austria, judgment of
19 December 1989, Series A no. 168, § 65).
- Lastly,
the Government argued that a cassation appeal was an extraordinary
remedy by which it was possible to challenge final judicial
decisions. The recourse to this remedy should be limited to
exceptional cases, the more so as the applicant's case had been
examined by two levels of courts with full jurisdiction as to the
fact and law.
- The
Government concluded that the system under which a legal aid lawyer
could refuse to lodge a cassation appeal was compatible with the
requirements of Article 6 § 1 of the Convention.
- The
applicant submitted that the compatibility of the legal aid system in
civil cases in Poland, and in particular the issue of refusals to
lodge cassation appeals by legal aid lawyers should be seen against a
general background governing cassation appeals introduced into the
Code of Civil Procedure in 1996 as applicable at the material time.
She drew the Court's attention to Articles 393, 393 1
and 393 3 of
that Code as applicable at the material time which, read together,
defined conditions under which cassation appeals were deemed fit to
be examined by the Supreme Court.
- The
applicant argued that, given that these provisions were drafted in
very broad terms, a decision whether a cassation appeal complied with
the conditions they defined was of a highly discretionary nature. A
decision whether to accept a cassation appeal for examination was
normally given by the Supreme Court within the framework of a
so-called judicial pre-assessment of the cassation appeal. Under the
applicable legal provisions as they stood at that time, a single
judge of the Supreme Court was empowered to give such a decision.
Moreover, the law did not provide for an obligation to provide
reasons for it.
- Following
the adoption of these provisions in 2001, a judicial practice had
developed under which many cassation appeals were rejected by
unmotivated decisions of the Supreme Court, given by a single judge.
- The
applicant emphasised that this judicial practice had seriously
limited access to the Supreme Court and resulted in many cases being
rejected by that court. In addition, under the legal aid provisions
it had been possible for a legal aid lawyer to carry out an
assessment of prospects of success of cassation appeal before it was
even drawn up. It had often been the case that legal aid lawyers,
bearing in mind serious difficulties in having a cassation appeal
declared admissible and accepted for examination by the Supreme
Court, had been refusing to represent legal aid clients, arrogating
thereby for themselves a judicial function which should have been
carried out by that Court itself. As a result of a combination of
these factors, access to the Supreme Court had become unduly
restricted.
- The
applicant further submitted that although, regard being had to the
independence of the legal profession, the State could not be held
responsible for acts and decision of legal aid lawyers, it fell to
the State to ensure effective access to justice. An effective
exercise of the right of access to a court required that the legal
aid system should be organised in such a way as to make access to
legal aid both transparent and effective.
2. The third parties' submissions
a) The Council of Bars and Law Societies
of Europe
- The
Council of Bars and Law Societies of Europe recalled that Article 6
§ 1 of the Convention embodied the “right to a
court”, of which the right of access, that is, the right to
institute proceedings before a court in civil matters, constituted
one aspect (Tinnelly & Sons Ltd and Others and McElduff and
Others v. the United Kingdom, judgment of 10 July 1998,
Reports of Judgments and Decisions 1998 IV, § 72).
In some circumstances, professional legal assistance was necessary to
ensure that an individual enjoys the right to a court. This
requirement could be fulfilled by the grant of legal aid. Article 6 §
1 might sometimes compel the State to provide for the assistance of a
lawyer when such assistance proved indispensable for an effective
access to court either because legal representation was rendered
compulsory, as was done by the domestic law of certain Contracting
States for various types of litigation, or by reason of the
complexity of the procedure or of the case (Airey v. Ireland,
judgment of 9 October 1979, Series A no. 32, § 26).
- Should
a legal aid board determine that legal assistance was crucial for the
proper conduct of a case, the right to effective access to a court
demanded that such representation be provided. Such was the situation
also when successive lawyers refused to act on the party's behalf
(Bertuzzi v. France, no36378/97, §§ 27
- 32, CEDH 2003 III)
- The
Council of Bars and Law Societies of Europe believed, taking into
account the Court's case-law and the Code of Conduct it had adopted
and having regard to the general principles by which justice had to
be governed, that the Member States of the Council of Europe were
under a general obligation to secure that the system under which a
citizen was entitled to obtain legal aid provided effective
representation in judicial proceedings.
- The
Council stressed that access to justice should be equal for all
citizens. This principle could only be enforced if the equality of
arms in the exercise of defence rights was guaranteed. Indeed, the
principle of equality of arms was an aspect of a right to a fair
hearing within the meaning of Article 6 § 1 of the Convention.
This obligation was particularly important in those civil cases, in
which – as the present case – a litigant had had a State
body as an opposite party.
- Legal
aid was one of the means to have the objective of fair access to
justice realised. The Court held in its case-law that legal aid
served the purpose of ensuring effective access to justice. In
allowing citizens with very low financial means to be able to have
recourse to legal aid assistance, the legal aid institutions allowed
them to obtain legal advice and identify legal remedies appropriate
to their situation. To this effect, legal aid should be adequate and
effective.
- There
were various systems of legal aid in State Parties. Although legal
aid institutions were responsible to ensure a satisfactory end
result, i.e. adequate and timely appointment of a lawyer, the final
obligation to ensure that the legal aid system, seen as a whole, was
effective, is to be discharged by the State. This requirement of
effectiveness was of a crucial importance, as the procedural
requirements had to be respected by the legal aid lawyer so that the
client's interests were well represented. While it was true that the
guarantees of Article 6 § 1 of the Convention were not as
extensive as those of Article 6 § 3 of the Convention, the
requirements of a fair hearing called for legal aid to be available
also in civil cases.
- The
Council further submitted that procedures similar to cassation appeal
procedure before the Polish Supreme Court existed, albeit with
different characteristics defined by laws governing civil procedure,
in several State Parties. In those countries in which all lawyers
were entitled to plead before the cassation court, as was the case in
Poland, the principles governing legal aid had to take into
consideration the specificity of such procedures. As cassation
appeals normally provided a legal framework specially designed for
the purposes of judicial review of the lawfulness of decisions given
by lower courts, special strict condition of admissibility applied to
them. Lawyers were by definition best placed to judge whether any
given case offered prospect of success before a cassation court. This
discretion was a vital element of the independence of the legal
profession and implied that the lawyer should freely take a decision
not to submit an appeal to the court of cassation if he or she were
of the view that relevant legal grounds for doing so did not obtain
in the case.
- However,
it logically followed from the principle of effectiveness of legal
aid that the beneficiary of legal aid should have a reasonable
possibility of requesting for another legal aid lawyer to replace the
first one, within a reasonable time frame and taking into
consideration the special characteristics of the cassation procedure.
Short deadlines applicable in the cassation proceedings could in
certain cases render such change of lawyers difficult, but the legal
aid scheme should allow such a change of counsel before the
applicable deadline expired.
- In
conclusion, the Council submitted that the State Parties were obliged
to see to it that an effective mechanism of legal aid allowed
adequate access to justice. The State Parties were responsible for
ensuring that the system worked efficiently. It was for the Court to
examine on case-to-case basis whether this had indeed been the case
in various individual situations. However, no State Party should bear
the responsibility for actions of lawyers, acting as members of
independent bar associations. Only where the legal aid scheme did not
adequately meet the conditions of effectiveness, should the role
played by the State be assessed by the Court, in order to determine
whether the State had taken all measures to ensure fair access to
justice.
- In
order for the effective access to justice to be compatible with the
requirements of Article 6 § 1 of the Convention, a balance
should be struck between the possibility for a lawyer to refuse to
represent a client and the opportunity for a party to the proceedings
to request either a bar association or the court, as the case may be,
to replace a lawyer by another one, in full respect of the
independence of the legal profession.
b) The Polish Helsinki Foundation for
Human Rights
- The
Polish Helsinki Foundation for Human Rights submitted that in civil
cases, lack of legal aid could hinder resolution of disputes having
an impact on civil rights and obligations of individuals. Taking into
account the broad scope of cases considered as „civil”
and their importance for individuals, the need for professional legal
aid in civil proceedings was substantial for guaranteeing the access
to court. The possibility to refuse the preparation of a cassation
appeal by the advocate had an important impact on the access to legal
aid and consequently on the right to a court.
- The
Code of Civil Procedure did not normally provide for mandatory legal
representation. However, the lodging of a cassation appeal required
mandatory assistance of an advocate or legal advisor.
- Nonetheless,
an ex officio advocate or legal advisor were not obliged by
law to prepare and to submit a cassation appeal in every and each
case assigned to them. They could refuse to do so in two situations.
Firstly, pursuant to Article 28 of the Bar Act, a lawyer could give
notice on termination of power of attorney when he or she considered
that an “important reasons” prevent him or her from
further representing the client. He or she had to notify the Regional
Bar Council of this refusal.
- Secondly,
under Article 57 of the Body of Ethical Rules and Dignity of Advocate
Profession an advocate could refuse to prepare a cassation appeal if
he or she was of the opinion that there were no reasonable
prospects of its success.
- This
principle that a legal aid lawyer could refuse to draw up a cassation
appeal had been confirmed by the resolution of the Supreme Court of
28 September 2000. The Supreme Court had stated therein that
such a refusal could only be justified by “important reasons”
within the meaning of Article 28 of the Bar Act. In civil cases it
was only the Regional Bar Council who was competent to countenance
such a refusal. The Supreme Court had also observed that this notion
of “important reasons” had not been defined by law. It
had been of the view that Article 57 of the Body of Ethical Rules and
Dignity of Advocate Profession, insofar as it referred to the lack of
prospects of success of this remedy, should serve as a basis for
interpretation of this notion.
- The
Foundation further stressed that the legal provisions concerning
refusal of legal assistance, applicable at the material time, had
been unclear and provoked serious difficulties of interpretation.
Until the Supreme Court's resolution of 2000 even the case law
of the Supreme Court in that matter had been divergent.
- When
a lawyer refused to draw up a cassation appeal, he or she should
notify his or her decision to the local Bar Council. However, there
had been no detailed rules determining what information or grounds
should be specified in such notice. The commentaries to the Civil
Procedure Code highlighted that under the applicable law there had
been no direct possibility to control the legitimacy of the legal aid
advocate's refusal. If a client disagreed with the lawyer's decision,
he or she could complain to the local Bar Council. However, there
were no regulations in force which would have governed the procedure
of examination of such complaints by the Bar. There were no further
instruments allowing the party to obtain any answer from the Bar
Council, or to obtain assistance of another legal aid lawyer for the
purposes of preparation of the appeal.
- Moreover,
while the refusal to prepare and submit a cassation appeal had to be
justified, there had been no standards determining the manner and
scope of such justification to be provided for by a lawyer.
- The
Foundation concluded that the applicable regulations, including the
Code of Civil Procedure, had failed to safeguard access to the
Supreme Court in case of an arbitrary refusal to prepare and to
submit the cassation appeal by a lawyer. The party had not had at its
disposal any remedy or procedure to review the legitimacy of the
lawyer's decision. Furthermore, a thirty-day time limit for the
lodging of a cassation appeal as applicable at the material time had
been relatively short. When a legal aid lawyer had refused to draw up
a cassation appeal, the party had not had enough time to lodge with
the court a new motion for the appointment of another lawyer. The
procedure of appointment of a legal aid lawyer had been too long to
make it possible for a new lawyer to submit the cassation appeal
within the time limit.
- Lastly,
it was argued that the costs of legal representation within the legal
aid scheme were covered out of the State budget. Hence, the State
should have had, at least to some degree, a possibility of reviewing
lawyers' refusals to prepare cassation appeals in civil cases.
3. Principles established by the Court's case-law
a) The scope of the State's liability
ratione personae under the Convention
- The Court notes at
the outset that the responsibility of the Contracting
Parties is incurred by the actions of their organs. A lawyer, even if
officially appointed, cannot be considered to be an organ of the
State. Given the independence of the legal profession from the State,
the conduct of the case is essentially a matter between the defendant
and his or her counsel, whether counsel be appointed under a legal
aid scheme or be privately financed, and, as such, cannot, other than
in special circumstances, incur the State's liability under the
Convention (see, mutatis mutandis, Artico
v. Italy, judgment of 30 May 1980, Series A no. 37,
p. 18, § 36; Daud v. Portugal
judgment of 21 April 1998, Reports of Judgments and
Decisions 1998-II, p. 749, § 38; Tuziński v. Poland
(dec), no. 40140/98, 30.03.1999; Rutkowski v. Poland
(dec.), no. 45995/99, ECHR 2000 XI).
- Nevertheless, there may be occasions when the State
should act and not remain passive when problems of legal
representation are brought to the attention of the competent
authorities. It will depend on the circumstances of the case whether
the relevant authorities should take action (see the above-mentioned
Daud judgment, p. 750, §§ 40 42) and
whether, taking the proceedings as a whole, the legal representation
may be regarded as “practical and effective” (see,
mutatis mutandis, Artico v. Italy, cited above,
§ 33; Goddi v. Italy judgment of 9 April 1984,
Series A no. 76, p. 11, § 27; Rutkowski v. Poland,
cited above). Assigning counsel to represent a party to
the proceedings does not in itself ensure the effectiveness of the
assistance (Imbrioscia v. Switzerland, judgment of
24 November 1993, Series A no. 275, § 38).
b) Access to the court
- The
Court further reiterates that it would be inconceivable that Article
6 § 1 should describe in detail the procedural guarantees
afforded to parties in a pending lawsuit without also protecting the
right of access to a court which makes it in fact possible to benefit
from such guarantees. The fair, public and expeditious
characteristics of judicial proceedings are of no value at all if
there are no judicial proceedings (Golder v the United
Kingdom, judgment of 21 February 1975, Series A no. 18,
§ 31-39). The Convention is intended to guarantee not
rights that are theoretical or illusory but rights that are practical
and effective. This is particularly so of the right of access
to the courts in view of 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 the right of access
to a court guaranteed by Article 6 § 1 would not be consonant
with the object and purpose of the provision (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 (Edificaciones March
Gallego S.A. v. Spain, judgment of 19 February 1998,
Reports of Judgments and Decisions 1998 I, § 34;
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, among many other authorities, Stubbings and Others
v. the United Kingdom judgment of 22 October 1996,
Reports 1996 IV, p. 1502, § 50; Tinnelly
& Sons Ltd and Others and McElduff and Others v. the United
Kingdom, judgment of 10 July 1998, Reports of Judgments
and Decisions 1998 IV, § 72; Związek
Nauczycielstwa Polskiego v. Poland, no. 42049/98, 21
September 2004, §§ 28 29).
- 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, for instance in that
it guarantees to litigants an effective right of access to the courts
for the determination of their “civil rights and obligations”
(see, among many other authorities, Levages Prestations Services
v. France, 23 October 1996, Reports 1996-V,
pp. 1544-45, § 44; Poitrimol v. France,
judgment of 23 November 1993, Series A no. 277 A,
§ 13-15).
- The
manner in which Article 6 § 1 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 the Court of Cassation may be more formal
(mutatis mutandis, Meftah and Others v. France [GC],
nos. 32911/96, 35237/97 and 34595/97, § 41, ECHR
2002 VII;
c) Legal aid
- In
this context, the Court points out that there is no obligation under
the Convention to make legal aid available for disputes
(contestations) in civil proceedings, as there is a clear
distinction between the wording of Article 6 § 3 (c), which
guarantees the right to free legal assistance on certain conditions
in criminal proceedings, and of Article 6 § 1, which does
not contain any reference to legal aid (Del Sol v. France,
no. 46800/99, § 20, ECHR 2002 II; Essaadi
v. France, no. 49384/99, § 30, 26 February
2002).
- The Court further reiterates that the requirement
that an appellant be represented by a qualified lawyer before the
court of cassation, such as applicable in the present case, cannot,
in itself, be seen as contrary to Article 6. This requirement is
clearly compatible with the characteristics of the Supreme Court as a
highest court examining appeals on points of law and it is a common
feature of the legal systems in several member States of the Council
of Europe (see, for instance, Gillow v. the United Kingdom,
judgment of 24 November 1986, Series A no. 109, § 69;
Vacher v. France, judgment of 17 December 1996, Reports
of Judgments and Decisions 1996 VI, pp. 2148-49, §§
24 and 28; Tabov v. Poland, § 42). It is for the
Contracting States to decide how they should comply with the fair
hearing obligations arising under the Convention.
- However,
the Court must satisfy itself that the method chosen by the domestic
authorities in a particular case is compatible with the Convention.
In discharging obligation to provide parties to civil proceedings
with legal aid, when it is provided by domestic law, the State must,
moreover, display diligence so as to secure to those persons the
genuine and effective enjoyment of the rights guaranteed under
Article 6 (Del Sol, R.D. v. Poland, nos. 29692/96 and
34612/97, § 44, 18 December 2001). It is also essential for
the legal aid system to offer individuals substantial guarantees to
protect those having recourse to it from arbitrariness (Gnahoré
v. France, no. 40031/98, § 38, ECHR 2000 IX).
4. Application of the principles to the facts of the
case
- Turning
to the circumstances of the present case, the Court observes at the
outset that the Polish law of civil procedure requires that a party
to civil proceedings be assisted by an advocate or legal counsel in
the preparation of his or her cassation appeal against a judgment
given by a second-instance court and that an appeal drawn up by the
party, without legal representation, will be rejected by the court
(see § 26 above). The Court accepts that this
requirement cannot, per se, be regarded as contrary to the
requirements of Article 6 of the Convention.
- The
Court further notes in this connection that in the present case the
Wroclaw Court of Appeal allowed the applicant's request for legal aid
for the purposes of cassation proceedings. Subsequently, the local
bar assigned advocate Z.W to represent the applicant. The copy of the
second-instance judgment was served on him on 9 November 2004. Under
the applicable provisions of the domestic law the thirty day
time-limit for lodging the cassation appeal started to run from that
date (see § 46 above). It was to expire on 9 December
2004.
- The
lawyer advised the applicant, by a written opinion dated 3 December
2004 that, in his view, a cassation appeal against the judgment of
the appellate court did not offer reasonable prospects of success.
Subsequently, he met with the applicant in his office on 6 December
2004. During this meeting he reiterated that he believed that there
were no grounds on which to prepare the appeal.
- In
this connection, the Court emphasises that the independence of the
legal profession is crucial for an effective functioning of the fair
administration of justice. When analysing the scope of the
responsibility of the State for acts of lawyers appointed under legal
aid scheme, the Court must have due regard to the guarantees of such
independence.
- In
this context, the Court considers that it is not the role of the
State to oblige a lawyer, whether appointed under legal scheme or
not, to institute any legal proceedings or lodge any legal remedy
contrary to his or her opinion regarding the prospects of success of
such an action or remedy. It is in the nature of things that such
powers of the State would be detrimental to the essential role of an
independent legal profession in a democratic society which is founded
on trust between lawyers and their clients. The Court emphasises that
it is the responsibility of the State to ensure a requisite balance
between, on the one hand, effective enjoyment of access to justice
and the independence of the legal profession on the other.
- In
this connection, the Court notes that the Polish Supreme Court, in
its resolution of September 2000, emphasised that the role of a
legal-aid lawyer had to be understood as obliging him or her to
provide comprehensive legal advice to the party, including as to the
prospects of success offered by a cassation appeal in a given
individual case. It therefore concluded that it was permissible for a
legal aid lawyer assigned to a civil case to refuse to prepare and
lodge a cassation appeal (see §§ 38 43 above).
The Court cannot but endorse this conclusion.
- The
Court is further of the view that when examining the circumstances of
the present case it must have regard to the specific features of the
Polish system of legal aid. In this respect, the Court deems
that the refusal of a legal aid lawyer should meet certain quality
requirements. In this connection, the Court observes that the
applicable domestic regulations did not specify the time-frame within
which the applicant should be informed about the refusal to prepare a
cassation appeal. When the applicant and the lawyer met, the
time-limit for lodging of a cassation appeal was to expire in three
days. The Court is of the view that in the circumstances of the
present case, it would have been impossible for the applicant to find
a new lawyer under the legal-aid scheme.
- Consequently,
the shortness of time left to the applicant to undertake any steps to
have the cassation appeal in her case prepared did not give her a
realistic opportunity of having her case brought to and argued before
the cassation court.
-
In the light of the circumstances of the case seen as a whole, the
Court is of the view that the applicant was put in a position in
which her efforts to have access to a court secured in a “concrete
and effective manner” by way of legal representation appointed
under the legal aid system failed.
- Accordingly,
there has been a breach of Article 6 § 1 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 sought compensation for pecuniary and non-pecuniary damage
in the amount of EUR 25,000.
- The
Government submitted that in so far as the applicant's claims related
to alleged pecuniary damage, she had failed to adduce any evidence to
show that she had suffered any actual loss. As to non-pecuniary
damage, the Government submitted that the amount claimed by the
applicant was excessive.
- The
Court is of the view that it has not been duly substantiated that the
applicant sustained pecuniary damage as a result of the violation of
her right to a fair hearing. However, 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 4,000 under this head.
B. Costs and expenses
- The
applicant, who received legal aid from the Council of Europe in
connection with the presentation of her case, sought EUR 7,000 for
costs and expenses incurred in the proceedings before the Court.
- The
Government considered that the sum was excessive. They asked the
Court to make an award, if any, only in so far as the costs and
expenses concerned had been actually and necessarily incurred and
were reasonable as to quantum.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, regard being had to the information in
its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 3,500 for costs and expenses
involved in the proceedings before it, less EUR 1,928.67 received by
way of legal aid from the Council of Europe.
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
- Dismisses the Government's preliminary
objections;
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent
State at the rate applicable at the date of settlement, together with
any tax that may be applicable:
(i) EUR
4,000 (four thousand euros) in respect of non-pecuniary damage;
(ii) EUR
3,500 (three thousand five hundred euros) in respect of costs and
expenses, less EUR 1,928.67 received by way of legal aid from the
Council of Europe;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 22 March 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention
and Rule 74 § 2 of the Rules of Court, the concurring
separate opinion of Judge Vajić is annexed to this judgment:
S.N.
C.L.R.
CONCURRING OPINION OF JUDGE VAJIĆ
1. I
regret that I am unable to share the reasoning of the majority in the
present case. My finding of a violation is based on reasoning
different from that set out in paragraphs 114 and 115 of the
judgment. I refer in this respect to my concurring opinion in the
case of Staroszczyk v. Poland, judgment of 22 March 2007.
2. In
the majority's view, the main reason for finding a violation in the
present case was due to the fact that
- in the absence of domestic regulations specifying the time-frame
within which clients should be informed of a refusal to prepare a
cassation appeal - the applicant met with her lawyer only three days
before the time-limit for lodging a cassation appeal was due to
expire. The Court was of the view that, in the circumstances of this
case, it would have been impossible for the applicant to find a new
lawyer. Consequently, the brevity of the time remaining to the
applicant to take any steps to have the cassation appeal in her case
prepared and lodged by another lawyer did not give her a realistic
opportunity of having her case brought to and argued before the
cassation court.
- I agree
that there has been a violation of the applicant's right in this
case. However, I should like to point out that it is not necessary
that all the details of a legal aid mechanism be strictly regulated
in domestic law (for example, the time-frame for a refusal to prepare
a cassation appeal). The accessibility, quality and diligence of
advice provided by lawyers should be the same, whether or not
provided under a legal aid scheme. Had the legal aid system
functioned properly and efficiently, making legal aid accessible in
all circumstances, there might have been enough time for the
applicant to take additional steps to seek advice from another lawyer
and to have an appeal prepared, even at a very late stage prior to
the expiry of the time-limit for lodging such appeals. Thus, within
an efficient legal aid system, the lack of time, even if it placed
the applicant in a difficult situation, might not in itself have been
enough to result in a violation of the applicant's right of access to
a court. In this respect, I consider that the situation cannot be
compared to that in the case of Tabor v. Poland
(no. 12825/02, judgment of 27 June 2006), where the Court
did find a violation, in a case where the national court dealt
with the applicant's request for legal aid in a way which left him
without any realistic opportunity of seeking legal assistance of his
choice in lodging a cassation appeal. In the Court's view, the manner
in which the relevant court handled the applicant's request for legal
aid was not compatible with the requirement of diligence (see Tabor
v. Poland, cited above, § 46).
In the
present case, it is instead the existing, albeit defective,
framework of the legal aid mechanism as such, as set out in point
3 of my concurring opinion in Staroszczyk v. Poland (cited
above), which placed the applicant in a position in which “her
efforts to have access to a court secured in a 'concrete and
effective manner' by way of legal representation appointed under the
legal aid system failed” (see paragraph 116 of the
judgment).
