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FOURTH
SECTION
CASE OF ARCIŃSKI v. POLAND
(Application
no. 41373/04)
JUDGMENT
STRASBOURG
15 September 2009
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 Arciński v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 25 August 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 41373/04) against the Republic
of Poland lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Polish national, Mr Wojciech Arciński
(“the applicant”), on 15 November 2004.
- The
applicant, who had been granted legal aid, was represented by Ms M.
Gąsiorowska, a lawyer practising in Warsaw. The Polish
Government (“the Government”) were represented by their
Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- The
applicant complained under Article 6 § 1 read together with
Article 6 § 3 (c) of the Convention that he had been deprived of
access to the Supreme Court.
- On
20 November 2007 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1945. He is currently serving a prison sentence
in Płock prison.
- Since
1997 the applicant lived with his partner in her apartment in Płock.
On 22 March 2002 she was found dead in the apartment. She had serious
head injuries and broken ribs. The applicant protested his innocence.
On 7 February 2003 the Płock District Prosecutor lodged a bill
of indictment against the applicant with the Płock Regional
Court. The applicant was charged with murder.
- On
28 April 2003 the Płock Regional Court gave a judgment in the
case. The court found the applicant guilty of murder and sentenced
him to eleven years' imprisonment.
- On
30 June 2003 the applicant appealed to the Warsaw Court of Appeal. He
argued that the first instance court had failed to examine all
the relevant circumstances of the case.
- On
7 October 2003 the appellate court quashed the judgment and remitted
the case to the first instance court for re examination,
having regard to certain procedural shortcomings in the proceedings.
- On
16 December 2003 the Płock Regional Court gave a judgment and
again convicted the applicant of murder. The applicant was sentenced
to eleven years' imprisonment. The applicant appealed. On
16 April 2004 the appellate court upheld the contested judgment.
- Throughout
the judicial proceedings the applicant was represented by a legal-aid
lawyer.
- On
28 June 2004 the court served the written grounds of the judgment on
the applicant and assigned a legal-aid lawyer for the purpose of
cassation proceedings.
- By
a letter of 26 July 2004 the lawyer informed the court that he had
not found any grounds on which to prepare a cassation appeal.
- On
29 July 2004 the appellate court forwarded the lawyer's refusal to
the applicant and informed him that the time-limit for lodging the
cassation appeal was to expire on 30 July 2004.
- On
an unspecified date the applicant requested the court to assign a new
legal aid lawyer. The court refused to do so.
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 Kulikowski v. Poland and Antonicelli v. Poland.
- In
particular, on 26 February 2002 the Supreme Court examined a
particular situation where a legal-aid lawyer had refused to
represent a convicted person for the purposes of cassation
proceedings, finding that a cassation appeal would offer no prospects
of success. It held that in such a situation the appellate court was
obliged to instruct the defendant that the time-limit for lodging a
cassation appeal started to run only on the date on which the
defendant was served with the lawyer's refusal and not on the earlier
date when the judgment of the appellate court was served on the
defendant himself. It stated that it was not open to doubt that a
defendant faced with a legal-aid lawyer's refusal had the right to
take other measures to seek legal assistance necessary for effective
lodging of a cassation appeal (III KZ 87/01). The Supreme Court
reiterated its position in a decision of 6 May 2008 and in a
number of similar decisions given in 2008. It observed that there had
been certain discrepancies in the judicial practice as to the manner
in which the time-limit in such situations was calculated, but the
strand of the case-law launched by the decision given in February
2002 was both dominant and correct, and also accepted by doctrine as
providing to the defendants adequate procedural guarantees of access
to the Supreme Court within a reasonable time frame (II KZ 16/08).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION
WITH ARTICLE 6 § 1 (c ) OF THE CONVENTION
- The
applicant complained that as a result of the legal-aid lawyer's
refusal to draft a cassation appeal he had been denied effective
access to the Supreme Court. He relied on Article 6 § 1 taken
together with Article 6 § 3 (c) of the Convention.
Those provisions, in so far as relevant, read:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;”
A. Admissibility
- The
Government argued that the applicant had failed to exhaust all the
remedies available under Polish law as required by Article 35 §
1 of the Convention. He should have submitted an action for damages
to a civil court, claiming just satisfaction for a breach of his
personal rights and loss of opportunity resulting from the lawyer's
refusal to prepare and lodge the cassation appeal.
- They
further argued that after the refusal of legal assistance from
another legal-aid lawyer the applicant should have lodged his own
cassation appeal. Under decisions of the Supreme Court adopted in
April 2005 and in March 2007 (V KZ 12/2005 and III KZ 15/2007
respectively) the court would have been obliged to summon him to
rectify the shortcomings of that appeal by submitting another one,
prepared and signed by a lawyer. That would have opened the way for
the applicant to have his case examined by the Supreme Court.
- The
applicant did not address this issue.
- The
Court first observes that the compensatory remedy referred to by the
Government was merely of a retroactive character. It could only, and
only if the applicant had been successful, have resulted in the
courts granting damages to him. Such a retrospective measure alone
would not have been sufficient to ensure an effective access to the
Supreme Court.
- As
regards the argument that the applicant should have submitted his own
cassation appeal, the Court considers that the Government's
preliminary objection under this head is closely linked to the merits
of the applicant's complaint. Accordingly, it decides to join its
examination to the merits of the case.
- 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
1. The parties' submissions
- The
applicant submitted that the applicant had been granted legal aid for
the purposes of lodging a cassation appeal. Under the applicable
domestic law the lawyer could refuse to do so if he found no grounds
on which to challenge the judgment of the second-instance court. The
law provided for a thirty day time limit for lodging a
cassation appeal, but there was no time-limit for a lawyer to
formulate such a refusal. In order for an 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 lodge a cassation appeal and the opportunity for
a party to the proceedings to request the court to replace that legal
aid lawyer, fully respecting the independence of the legal
profession.
- The
applicant further submitted that it was true that under Polish law a
cassation appeal against a second-instance judgment of a criminal
court was an extraordinary remedy, hence the grounds for such an
appeal were limited. It was not possible to lodge such an appeal
against each and every judgment of the appellate court. Legal
representation was mandatory for the lodging of a cassation appeal.
However,
parties to criminal proceedings should have an effective access to
the Supreme Court in the context of cassation proceedings. They
should be promptly informed of the existence of grounds for an
appeal, or that they have been refused a legal-aid lawyer. It was the
courts' role to check whether the clients of legal aid lawyers
were kept promptly informed.
The
applicant further submitted that in his case the appellate court had
forwarded the lawyer's refusal to him only one day before the
relevant time limit expired. Moreover, the court had refused to
assign a new legal-aid lawyer to the case. In consequence, the
applicant had had no real chance of having his case brought before
the Supreme Court.
- The
Government submitted that the applicant had been represented by a
legal-aid lawyer from an early stage of the proceedings.
Subsequently, the court of appeal had acknowledged the need for the
applicant to obtain legal assistance for the purposes of the
cassation proceedings, granted him legal aid and instructed him as to
the relevant procedure. The lawyer had had thirty days to examine the
prospects of success offered by a cassation appeal in the applicant's
case. There had been no indications of any negligence on his part in
that examination and the Court of Appeal, when examining the
applicant's request to assign another legal-aid lawyer to the case,
had confirmed it. The applicable legal provisions in force at the
material time had obliged the legal-aid lawyer to act diligently and
failure to do so could be regarded as giving rise to his or her civil
liability in tort.
- The
Government argued that the legal-aid lawyer's refusal had been
notified to the applicant. Any disagreements that might have arisen
between the applicant and the lawyer in connection with the issue of
the lodging of the cassation appeal with the Supreme Court could not
be regarded as giving rise to liability on the part 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 lawyers' working methods 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.
- They
further submitted that the applicant had not been denied access to a
court nor had the refusal to prepare and lodge a cassation appeal
been tantamount to deprivation of the right to a fair hearing or of
access to court. Under Polish law a cassation appeal was an
extraordinary remedy, essentially intended to guarantee uniformity of
application of statutes by criminal courts and not the direct
protection of individual rights. In any event, the State was not
obliged to ensure legal aid in every case. Moreover, the applicant's
case had been examined by two levels of courts with full jurisdiction
as to the facts and law.
2. Principles established by the Court's case-law
a) The scope of the State's liability
ratione personae under the Convention
- The
Court first notes that the guarantees in paragraph 3 of Article 6
are specific aspects of the right to a fair trial in criminal
proceedings as set forth in paragraph 1 of the same Article.
Accordingly, the applicant's complaint will be examined under these
provisions taken together (see, among other authorities, Benham
v. the United Kingdom, judgment of 10 June 1996,
Reports of Judgments and Decisions 1996-III, p. 755,
§ 52, and Bobek
v. Poland, no. 68761/01, § 55, 17 July
2007).
- The
Court observes 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 Artico v. Italy,
judgment of 30 May 1980, Series A no. 37, p. 18, § 36;
Daud v. Portugal, judgment of 21 April 1998, Reports
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; and Cuscani v. the
United Kingdom, no. 32771/96, § 39, 24 September
2002).
- Nevertheless, assigning counsel to represent a party
to the proceedings does not in itself ensure the effectiveness of the
assistance (see Imbrioscia v. Switzerland,
judgment of 24 November 1993, Series A no. 275, § 38).
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, taking the proceedings as a whole,
the legal representation may be regarded as practical and effective
(see, mutatis mutandis, Artico, cited above, § 33;
Goddi v. Italy, judgment of 9 April 1984, Series A
no. 76, p. 11, § 27; Rutkowski, cited
above; Staroszczyk, cited above, §§ 121-122;
and Siałkowska, cited above, §§ 99-100).
b) Access to court
- The
Court further emphasises the importance of the right of access to a
court, having regard to the prominent place held in a democratic
society by the right to a fair trial (see Airey v. Ireland,
judgment of 9 October 1979, Series A no. 32, p. 12-13,
§ 24). A restrictive interpretation of that right would not
be consonant with the object and purpose of this provision (see De
Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86,
§ 30). However, this right is not absolute, but
may be subject to limitations; these are permitted by implication,
since the right of access by its very nature calls for regulation by
the State (see Edificaciones March Gallego S.A. v. Spain,
judgment of 19 February 1998, 1998 I, § 34, and
Garcia Manibardo v. Spain, no. 38695/97, § 36).
In this respect, the Contracting States enjoy a certain margin of
appreciation, although the final decision as to the observance of the
Convention's requirements rests with the Court. It must be satisfied
that the limitations applied do not restrict or reduce the access
left to the individual in such a way or to such an extent that the
very essence of the right is impaired. Furthermore, a limitation will
not be compatible with Article 6 § 1 if it does not pursue a
legitimate aim and if there is not a reasonable relationship of
proportionality between the means employed and the aim sought to be
achieved (see Ashingdane v. the United Kingdom, judgment of
28 May 1985, Series A no. 93, p. 24, § 57,
and Prince Hans-Adam II of Liechtenstein v. Germany [GC],
no. 42527/98, § 44, ECHR 2001-VIII, mutatis
mutandis).
- The
Convention does not compel the Contracting States to set up courts of
appeal or of cassation. However, where such courts do exist, the
guarantees of Article 6 must be complied with. The manner in which
this provision applies to courts of appeal or of cassation depends on
the special features of the proceedings concerned and account must be
taken of the entirety of the proceedings conducted in the domestic
legal order and the court of cassation's role in them. Given the
special nature of the court of cassation's role, which is limited to
reviewing whether the law has been correctly applied, the Court is
able to accept that the procedure followed in such courts may be more
formal (see Meftah and Others v. France [GC],
nos. 32911/96, 35237/97 and 34595/97, § 41, ECHR
2002 VII; Staroszczyk, cited above, § 125; and
Siałkowska, cited above, § 104). 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 its obligation to provide parties to criminal
proceedings with legal aid, when this is provided for 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 (see R.D. v. Poland,
nos. 29692/96 and 34612/97, § 44, 18 December 2001).
3. Application of the principles to the facts of the
case
- Turning
to the circumstances of the present case, the Court observes that the
Polish law of criminal procedure requires that a person whose
conviction has been upheld by an appellate court should be assisted
by a lawyer in the preparation of his or her cassation appeal against
a judgment given by that court. The Court reiterates that the
requirement that an appellant be represented by a qualified lawyer
before a court of cassation cannot, in itself, be seen as contrary to
Article 6. This requirement is clearly compatible with the
characteristics of the Supreme Court as the highest court in Poland
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
Vacher v. France, judgment of 17 December 1996, Reports
1996-VI, pp. 2148-49, §§ 24 and 28, and
Staroszczyk, cited above, § 128).
- The
Court further notes that in the present case the appellate court sent
its judgment with a written statement of reasons to the applicant on
28 June 2004. On the same date it assigned P.R. as legal aid
lawyer for the lodging of a cassation appeal. The judgment was served
on the lawyer on 30 June and on the applicant on 2 July 2004. By
a letter of 26 July 2004, received by the court on 28 July 2004,
the lawyer informed the court that he had not found any legal grounds
on which to prepare a cassation appeal in the applicant's case.
- The
Court further reiterates that although admissibility conditions for
appeals are necessary to ensure legal certainty and a proper
administration of justice, and litigants should normally expect those
rules to be applied, a particularly strict interpretation of a
procedural rule may deprive an applicant of the right of access to a
court (see Běleš and others v. Czech Republic,
no. 47273/99, § 60, 12 November 2002; Zvolský and
Zvolská v. Czech Republic, no. 46129/99,
12 November 2002; and Kemp and Others v. Luxembourg,
no. 17140/05, § 42, 24 April 2008, mutatis
mutandis)
- In
this connection, the Court observes that the Supreme Court in a
series of decisions noted the difficulties which could arise for the
defendant in securing effective access to the cassation court where
the grant of legal aid for the purposes of cassation proceedings had
been made but the legal-aid lawyer subsequently concluded that a
cassation appeal offered no prospects of success. The Supreme Court
has examined the manner in which the beginning of the relevant
time-limit should be determined in such special circumstances. It
held, in its decision of 26 February 2002, that following a legal-aid
lawyer's refusal to prepare a cassation appeal the event triggering
the running of the relevant time-limit should be established in such
a way as to accommodate the defendant's situation so as not to
deprive him of the practical possibility of having his or her case
examined by the Supreme Court. Hence, it held that the time-limit for
lodging a cassation appeal started to run only on the date on which
the defendant was informed of the lawyer's refusal, not when the
lawyer was served with the judgment of the second instance
court.
- The
Court further notes that in 2008 the Supreme Court stated that this
strand of the case-law was not only correct as providing adequate
procedural guarantees to the defendant, but also represented a clear
reflection of the prevailing judicial practice.
- In
the present case the applicant was served with the lawyer's refusal
on 29 June 2004. The Court notes the Government's submission
that under the case-law of the Supreme Court the time-limit for
lodging of a cassation appeal started to run on the date on which the
judgment of the appellate court with its written grounds had been
served on the applicant's legal-aid lawyer. However, it observes that
in the light of the decision of the Supreme Court summarised in
paragraph 27 above the thirty-day time-limit started to run when the
applicant himself was served with the lawyer's refusal. Moreover, the
Court further notes that under the Supreme Court's decision of
22 February 2002 the Warsaw Court of Appeal was obliged to
instruct the applicant that the time-limit for lodging a cassation
appeal started to run only on the date when he was served with the
lawyer's refusal.
-
The Court observes that the Court of Appeal failed to comply with
that obligation. The failure to inform the applicant, who was at that
time no longer not represented by a lawyer, of his procedural rights
meant that he had no way of knowing that he had a new time-frame
within which to find a lawyer who might be persuaded to file a
cassation appeal on his behalf. The Court notes in this connection
that the procedural framework governing the making available of legal
aid for a cassation appeal in criminal cases, as described above, is
within the control of the appellate courts. When notified of a
legal-aid lawyer's refusal to prepare a cassation appeal, it is
entirely appropriate and consistent with fairness requirements, that
an appeal court indicate to an appellant what further procedural
options are available to him or her. The Supreme Court's case-law
stresses this point. However, in the instant case this requirement
was not complied with, with the result that the applicant's right of
access to the Supreme Court was not secured in a “concrete and
effective manner”.
- Accordingly,
having regard to the above deficiency, there has been a violation of
Article 6 § 1 in conjunction with Article 6
§ 3 (c) of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained, relying on Article 6 of the Convention, that
the proceedings had been unfair in that the courts had wrongly
assessed evidence, erred in establishing the facts of the case and
incorrectly applied applicable domestic law.
- However,
the Court reiterates that, according to Article
19 of the
Convention, its duty is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as they
may have infringed rights and freedoms protected by the Convention.
Moreover, 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 García Ruiz v. Spain [GC], no.
30544/96, § 28, ECHR 1999-I, with further references).
- In
the present case, even assuming that the requirement of exhaustion of
domestic remedies was satisfied, the Court notes that the applicant
did not allege any particular failure to respect his right to a fair
hearing on the part of the relevant courts. Indeed, his complaints
are limited to a challenge to the result of the proceedings.
Assessing the circumstances of the case as a whole, the Court finds
no indication that the impugned proceedings were conducted unfairly.
It
follows 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.
IV. 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 15,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested his claim.
- 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 1,000
under this head.
B. Costs and expenses
- The
applicant, who had received legal aid from the Council of Europe in
connection with the presentation of his case, did not make any claim
for reimbursement of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the applicant's complaint
concerning lack of access to a court and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article
6 § 1 of the Convention in conjunction with Article 6 § 3
(c);
3. Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 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 15 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the concurring opinion of Judge Mijović
is annexed to this judgment.
F.A.
N.B.
CONCURRING OPINION OF JUDGE MIJOVIĆ
As
it was emphasised
in my previous concurring opinions in two recent cases,
as well as in the joint dissenting opinion in Smyk v. Poland,
I see the problem of the refusal of lawyers appointed under legal aid
schemes to represent legally aided persons on the ground that
the claim has no reasonable prospects of success, as the general one,
related not only to criminal, but also to both civil and
administrative proceedings.
To avoid repetition, I refer to the detailed reasoning of those
opinions.
