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FOURTH
SECTION
CASE OF SUBICKA v. POLAND
(Application
no. 29342/06)
JUDGMENT
STRASBOURG
14
September 2010
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 Subicka 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 24 August 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application no. 29342/06 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
Iwona Subicka (“the applicant”), on 6 July
2006.
- The
applicant, who had been granted legal aid, was represented by M. K.
Gotkowicz, a lawyer practising in Gdansk. 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 of the Convention
that she had been denied effective access to a court.
- On
25 September 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 1954. She lives in Gdańsk-Zaspa.
- By
a judgment of 30 March 2006 the Gdańsk Regional Administrative
Court dismissed the applicant's appeal against a second instance
administrative decision by which she had been refused a monthly
social assistance benefit. This judgment, with its written reasons,
was served on the applicant on 28 April 2006.
- On
an unspecified later date the applicant was granted, by a decision of
an official of the court's registry, legal aid for the purposes of
lodging a cassation appeal with the Supreme Administrative Court.
- By
a further decision of a registry official given on 25 April 2006 the
registry requested the local Bar Association to assign a legal-aid
lawyer to the case. That order was complied with on 12 June
2006.
- On
19 June 2006 the Gdańsk Bar informed the court that Mr M. S.
had been assigned to the case. Mr M.S. was so informed on 20 June
2006.
- On
21 June 2006 he examined the case file and found that the time-limit
for lodging a cassation appeal had expired on 28 May 2006.
- By
a letter to the court dated 1 July 2006 the lawyer informed the court
that he saw no legal grounds on which he could draft a cassation
appeal. He presented a detailed legal analysis of the case and an
explanation why he considered that legal grounds for a cassation
appeal did not obtain. He further observed that in the circumstances
of the case he could not, in any event, be required to prepare an
appeal, having been served with the judgment after the time-limit for
its submission had already expired.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. Legal aid in proceedings before the administrative courts
- Legal
aid can be granted under section 246 read together with section 247
of the Act on Procedure before Administrative Courts if a party to
the proceedings demonstrates that he or she is unable to cover the
relevant costs and the case has no prospects of success whatsoever. A
decision on the request to grant legal aid can be issued either by
the court or by an official from the court registry. Pursuant to
section 244 of the Act, a grant of legal aid covers exemption from
court fees and the appointment of a qualified representative. A
representative is assigned to the case by a subsequent decision of
the local Bar Association or other relevant professional
organisation.
2. The cassation appeal in administrative proceedings
- Section
173 of the Act on Procedure before Administrative Courts provides
that a cassation appeal can be lodged against a judgment of the
regional administrative court.
- Pursuant
to section 175, a cassation appeal should be prepared and lodged with
the court by an advocate, legal counsel, a tax adviser or a patent
agent. An appeal brought by a party him- or herself shall be
rejected. Under section 177 § 1, the thirty-day time-limit
for lodging a cassation appeal with the Supreme Administrative Court
starts to run on the day on which a judgment of the Regional
Administrative Court, together with its written grounds, has been
served on the party concerned or his or her representative, if the
party is legally represented.
3. Retrospective leave to appeal or to submit pleadings out of time
- Pursuant
to section 86 of the Law on the Procedure before Administrative
Courts, a party to the proceedings may request retrospective leave to
take a procedural step outside the prescribed time limit. Under
section 87, this step shall be performed simultaneously with the
act of lodging the request for leave and within seven days from the
removal of the impediment which had prevented the party from taking
this step.
4.Calculation of the time-limit for the lodging of a cassation appeal
- In
a number of decisions the administrative courts have held that the
running of the time-limit for lodging a cassation appeal is not
affected in any way by a request for legal aid and its subsequent
grant. The time-limit starts to run on the date when the party was
served with the decision of the regional administrative court with
its written grounds. They referred to what they considered to be the
established case-law of the Supreme Administrative Court (the Supreme
Administrative Court's decision, Naczelny Sąd Administracyjny
- hereinafter referred to as NSA – see decisions NSA, II OZ
393/05 of 24 June 2005; I OZ 160/08 of 14 March 2008, II OZ
1036/07 of 19 October 2007; II OZ 318/07 of 13 April 2007; the
Olsztyn Regional Administrative Court, II SA/Ol 711/07 of 14 January
2008).
In
its decision no. II FZ 651/07 of 18 January 2008 the Supreme
Administrative Court held that a request for leave to appeal out of
time was the only method by which a cassation appeal submitted after
the expiry of the time limit by a legally-aided applicant could
be admitted for examination.
- When
legal aid has been granted and the time-limit for the submission of a
cassation appeal has already expired, it is open to the legally-aided
party to submit the appeal together with a request for leave to
appeal out of time made under sections 86 and 87 of the Law on the
Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31
January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases
the courts stated that such a request should be submitted within
seven days from the date on which the lawyer obtained a power of
attorney from the party, which date is considered as the date on
which the impediment to lodging an appeal ceased to exist (e.g. the
Białystok Regional Administrative Court, II SAB Bk 27/07 of 10
April 2008), or from the date when the lawyer could obtain effective
access to the case file (e.g. the Poznań Regional Administrative
Court, IV SA/Po 865/06 of 13 November 2007).
18.
In a number of its recent decisions the Supreme Administrative Court
acknowledged the difficulties which legally-aided parties experienced
in connection with lodging their cassation appeals against judgments
of the first-instance administrative courts. It expressed the view
that they should not be penalised for the fact that their
requests for legal aid were not processed speedily enough.
It analysed relevant case-law of the administrative courts and
noted that the manner in which the beginning of the
time-limit for lodging cassation appeals was determined had led
to divergent results. It held that it was necessary to determine
that moment in a manner compatible with the effective access to the
highest administrative court and equal for parties represented
by lawyers appointed under the legal-aid scheme and by privately
hired lawyers. The court held that the time-limit for a legally-aided
party started to run only on the day when a legal-aid lawyer had a
genuine possibility of lodging the cassation appeal; not when he or
she was informed of having been assigned to the case. The court was
of the view that the latter approach was far too rigorous and
rendered the effective enjoyment of legal assistance granted under
the legal-aid system illusory. In any event, the cassation appeal had
to be lodged within thirty days from the day on which the party was
informed of the appointment of the legal-aid lawyer (I FZ 569/06 of 8
December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March
2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ
376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of
9 December 2009; I FZ 30/09 of 2 March 2009).
5. 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 in civil proceedings. It replied to the question in
the affirmative, having noted that issues involved in the grant of
legal aid concerned not only the proper administration of justice,
but also touched on human rights, and the right of access to a court
in particular. The mere fact that it was necessary for a cassation
appeal to be lodged by a qualified representative was not open to
criticism.
- The
court observed 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.
- This
resolution was summarised in detail in the Court's judgment in the
case of Zapadka v. Poland, no. 2619/05, §§ 38-43, 15
December 2009.
6. Case-law of the Supreme Court concerning criminal proceedings
- On
26 February 2002 the Supreme Court changed its previous position
concerning the date on which the time limit for lodging a
cassation appeal started to run. It 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 a right to take other measures to seek legal
assistance necessary for an 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 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 OF
THE CONVENTION
- The
applicant complained that as a result of the legal-aid lawyer's
refusal to prepare and lodge a cassation appeal with the Supreme
Administrative Court she had been denied access to that court. She
referred to Article 6 § 1 of the Convention which, in
so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
- The
Government argued, firstly, that the application was incompatible
ratione personae with the provisions of the Convention. Any
disagreements that might have arisen between the applicant and the
legal aid lawyer could not incur the liability of the State. The
public authorities did not exercise any direct control over lawyers'
methods of work and could not impose on a legal aid lawyer an
obligation to draw up a cassation appeal.
- The
Government further submitted that the applicant had failed to exhaust
relevant domestic remedies. She could have complained to the local
Bar Association under section 28 of the Bar Act about the lawyer's
alleged negligence. She should also have brought a civil action for
compensation against him or requested leave to lodge a cassation
appeal with the Supreme Administrative Court out of time.
- The
applicant disagreed. She submitted that the circumstances of the case
had engaged the State's responsibility, because the State had failed
to put in place a coherent system of procedural provisions governing
the granting of legal aid and ensuring the efficient functioning of
the system in practice.
- The
applicant further submitted that in the light of the established
case-law of the Supreme Court and the Supreme Administrative Court, a
refusal to prepare a cassation appeal could not by itself be regarded
as negligence in respect of which she could seek damages before a
civil court. Hence, such a refusal could not give rise for the
applicant to any ground for a well-founded complaint about the
lawyer's conduct, let alone to a civil liability claim offering any
reasonable prospects of success.
- The
Court observes that the remedies referred to by the Government were
merely of a retrospective character. They could only, and if the
applicant had been successful, have resulted either in the courts
granting damages or in the Bar Association finding the lawyer at
fault. Such retrospective measures alone were not sufficient to
ensure effective access to a court competent to determine the
applicant's civil rights and obligations. The Court therefore rejects
the Government's
objection as to
non-exhaustion of domestic remedies.
- The
Court further considers that the Government's objection that the
application was incompatible ratione personae with the
provisions of the Convention is closely linked to the substance of
the applicant's complaint under Article 6 § 1. Its
examination should therefore be joined to the merits of the case (see
Siałkowska v. Poland, no. 8932/05, § 59,
22 March 2007).
- The
Court concludes therefore that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has
been established. It must therefore be declared admissible.
B. Merits
- The parties' submissions
- The
applicant submitted that in the circumstances of the case her access
to court had been restricted and proved illusory. This was because
under Polish law there were no coherent procedural regulations
regarding the obligations of legal-aid lawyers in connection with
cassation appeals. The regulations and relevant judicial practices
were different for civil, administrative and criminal proceedings.
The resolution of the Supreme Court given in 2000 (see paragraphs 18
– 20 above) by which that court had sought to alleviate
difficulties which had arisen in connection with the functioning of
the legal-aid system in the context of cassation proceedings, was not
applicable to proceedings before the administrative courts. By
creating such confusion as to the rights and obligations of legal aid
lawyers and their clients, the State had failed to comply with its
duty to properly regulate access to the courts, including the
administrative courts.
The
applicant submitted that the domestic law should create a universally
binding regulatory framework governing the provision of legal-aid
services for the preparation of cassation appeals. Ideally, such a
framework would provide that the time limit for lodging a
cassation appeal did not start to run until the legal-aid lawyer had
been appointed.
- The
applicant argued that in the proceedings before the administrative
courts the time-limit for lodging a cassation appeal started to run
on the date when the judgment of the regional administrative court
was served on the party concerned. It was open to that party to apply
for legal aid afterwards. However, when legal aid was subsequently
granted and a legal aid lawyer was assigned to the case already
after the expiry of the thirty-day time-limit or just before it, he
or she could only ask for retrospective leave to appeal out of time.
- The
applicant referred to the Court's finding of a violation of the
Convention in the case of Siałkowska v. Poland,
referred to above. She emphasised that when making its finding the
Court relied on the fact that the domestic law had failed to regulate
the provision of legal aid in the context of cassation proceedings
with requisite clarity. The same lack of clarity characterised the
provision of legal aid in proceedings before the administrative
courts. The State had therefore failed in its duty to ensure the
requisite balance between, on the one hand, the effective enjoyment
of access to justice and, on the other, the independent functioning
of the legal profession.
- The
Government submitted that the mere fact that it was necessary for a
cassation appeal to be lodged by a qualified representative was not
open to criticism. They further referred to the ruling of the Supreme
Court given in September 2000. That court had held that a lawyer
assigned to a case under the legal aid scheme was entitled to
refuse to lodge a cassation appeal in civil proceedings, if he or she
was of the view that this remedy offered no reasonable prospects of
success.
- The
Government further submitted that in the instant case the regional
court had granted legal aid to the applicant. The lawyer had
subsequently examined the case and given a legal opinion explaining
in detail why, in his view, there were no legal grounds on which to
prepare a cassation appeal against the judgment of the regional
court. He had informed the court, the Bar Association and the
applicant of the reasons for his refusal. There had been no
indication that the lawyer had been negligent in his handling of the
applicant's case. Hence, the State had properly discharged its
obligation to provide legal aid to the applicant.
- The
Government stressed that the notion of legal aid was not to be
understood as providing legal representation in proceedings in all
cases. It also comprised the provision of legal advice on the
prospects of success offered by a given legal remedy in the
particular context of each case. The lawyers' tasks could not be
perceived as following uncritically their clients' instructions and
wishes. Hence, the lawyer's refusal to appeal had served the purpose
of securing the proper administration of justice by the Supreme
Administrative Court.
- The
Government further argued that after the lawyer's refusal the
applicant could have lodged a cassation appeal together with a
request for leave to submit the appeal out of time, provided for by
section 87 of the Law on the Procedure before Administrative Courts
(see paragraph 15 above). The established practice and case-law of
the administrative courts provided that a protracted examination of
the motion for the grant of legal aid constituted a basis on which
retrospective leave to submit a cassation appeal out of time could
subsequently be granted.
- The
Government concluded that in the present case the refusal to prepare
and submit a cassation appeal against the judgment of the regional
administrative courts and the procedure in which legal aid was
provided as applied to the applicant's case were compatible with the
requirements of Article 6 § 1 of the Convention.
- The Court's assessment
- The
Court has already had occasion to set out at length the relevant
principles derived from its case-law in this area (Siałkowska
v. Poland, no. 8932/05, §§ 99-107, 22 March 2007; Smyk
v. Poland, no. 8958/04, §§ 54-59, 28 July 2009;
Zapadka v. Poland, no. 2619/05, §§ 57-61, 15 December
2009). It adopts those principles for the purposes of the instant
case.
- Turning
to the circumstances of the present case, the Court first observes
that where a party to administrative proceedings is represented by a
lawyer, the procedural time-limits set by the Act on Procedure before
Administrative Courts start to run on the date of the service of
judicial decisions on the lawyer (see paragraphs 14 and 16
above). In such situations no difficulties arise in connection with
establishing the date on which the thirty-day time-limit for lodging
a cassation appeal, applicable at the material time, would expire.
- The
situation is significantly different where a party does not have
legal representation before the Regional Administrative Court, as in
the present case, and is granted legal aid only after the
second instance judgment has been given.
- The
case-law of the Supreme Administrative Court provides that the
time-limit for lodging a cassation appeal starts to run from the date
on which the judgment of the Regional Administrative Court has been
served on the non-represented party (see paragraph 14 above). The
administrative courts have repeatedly held that his or her request
for legal aid did not affect the running of the time limit. A
party who was subsequently granted legal aid was put in a difficult
position, because at the time of service the time-limit has already
started to run. A lawyer subsequently assigned to the case had
therefore less time to examine the case and decide, still within the
time-limit, whether a cassation appeal offered prospects of success
and to prepare an appeal. This may lead to a situation, as happened
in this case, where a lawyer subsequently assigned to the case only
learned about his appointment after the time-limit for lodging the
cassation appeal had expired.
- The
Supreme Administrative Court has, on numerous occasions, addressed
this problem. As a result, a body of case-law has developed to the
effect that in situations where a legal-aid lawyer was appointed
after the time-limit for lodging the cassation appeal had expired,
the administrative courts grant leave for submitting a cassation
appeal out of time
. Under the case-law of the
Supreme Administrative Court the day on which the impediment for
lodging the cassation appeal ceased to exist is defined as the
day on which the lawyer has had a genuine possibility to prepare it.
Thus, the seven-day time-limit begins to run only after the legal-aid
lawyer has had sufficient time to study the file. In any
event, the cassation appeal must be lodged within thirty days from
the day on which the party was informed of the appointment of the
legal-aid lawyer (see paragraph 18 above).
- The
Court is of the opinion that this jurisprudential approach is
compatible with the Convention standards as regards ensuring fair
access to the cassation procedure.
- However,
the Court observes that the applicant's access to the cassation
procedure was limited not because of the shortness of time left for
the legal-aid lawyer to act, but by the refusal of that lawyer to
lodge the cassation appeal. The Court notes that the legal-aid lawyer
informed the applicant about his refusal to lodge the cassation
appeal on 1 July 2006, ten days after he had been assigned to the
case.
Thus,
the question that arises in the present case is whether as a result
of that refusal the applicant was left with no other procedural
possibilities to have the cassation appeal lodged.
The
Court observes that it has already dealt with this question in the
context of criminal as well as civil procedure. As far as the former
is concerned, it was established that – under the established
case-law of the Supreme Court – the time limit for lodging a
cassation appeal should run de novo from the day when the
applicant has been informed of the legal-aid lawyer's refusal to
lodge a cassation appeal. This approach was found to satisfy
Convention standards, provided that the applicant has been properly
informed about his/her procedural rights at the time when the
lawyer's refusal was communicated to him or her (Kulikowski
v. Poland, no. 18353/03, § 69-71, ECHR
2009 ... (extracts); Antonicelli v. Poland,
no. 2815/05, § 44-45, 19 May 2009).
In
the context of civil procedure the Court has found that the civil
courts' approach to the calculation of the time-limit for submitting
a cassation appeal is stricter. Thus, a legal-aid lawyer's refusal to
prepare it does not trigger the running of the time-limit de novo.
That approach was regarded by the Court as being incompatible with
Convention standards, save for rather rare situations where the
refusal of the legal-aid lawyer was notified to the applicant well
before the deadline was due to expire (see Smyk v. Poland,
no. 8958/04, §§ 63-65, 28 July 2009).
- The
Court observes that, with respect to the procedure before
administrative courts, the existing case-law only offers a solution
to the situation where a legal-aid lawyer is ready to prepare a
cassation appeal, but the deadline for doing so has already expired
(see paragraph 44 above). The Government were unable to indicate any
domestic case-law addressing situations where, as in the applicant's
case, the legal-aid lawyer refused to lodge a cassation appeal well
after the original deadline had expired.
This produces a situation of legal uncertainty for legally-aided
applicants. In the present case this uncertainty was also highlighted
by the applicant's lawyer who, in his letter of 6 July 2006, stated
that he could not be required to prepare a cassation appeal, given
that he had been served with the judgment after the time-limit for
its submission had already expired (see paragraph 11 above). In that
context, it should be stressed that uncertainty – be it
legislative, administrative or arising from practices applied by the
authorities – is an important factor to be taken into account
in assessing the State's conduct (see, among other authorities, Beian
v. Romania (no. 1),
no. 30658/05, § 33, ECHR 2007-... (extracts); Plechanow
v. Poland, no. 22279/04, § 103, 7 July 2009). The
Court is of the view that this uncertainty is sufficient for a
finding of a violation of the applicant's right of access to court on
account of the absence of clear rules governing the consequences of
the legal-aid lawyer's refusal occurring after the deadline for
lodging a cassation appeal had already expired.
- Hence,
as long as the legislature does not address this problem by adopting
such rules, or, failing that, as long as the case-law of the Supreme
Administrative Court does not offer an adequate solution, the Court
cannot accept that the existing procedural situation is compatible
with the requirements of Article 6 of the Convention.
- Having
regard to the above considerations, the Court concludes that in the
present case there has been a violation of Article 6 § 1
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF ALLEGED UNFAIRNESS
- The
applicant complained that the administrative court had wrongly
assessed the evidence and, as a result, had failed to establish the
facts of the case correctly and had given an erroneous judgment.
- The
Court reiterates that, while Article 6 of the Convention
guarantees the right to a fair hearing, it does not lay down any
rules on the admissibility of evidence or the way it should be
assessed, which, like the establishment of facts, are therefore
primarily matters for regulation by national law and the national
courts (see Schenk v. Switzerland, 12 July
1988, §§ 45-46, Series A no. 140, and García
Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28).
- It
follows 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.
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 damage in the amount of
1,145 euros (EUR) and non pecuniary damage in the amount of
5,000 euros (EUR).
- 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 of access to a court. 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 1,000 under this head.
B. Costs and expenses
- The
applicant, who was granted legal aid for the purposes of the
proceedings before the Court, did not submit a claim for
reimbursement of legal 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
1. Declares admissible the complaint concerning
access to the Supreme Court and the remainder of the application
inadmissible;
- 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, 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 14 September 2010,
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 separate opinion of Judge L.
Mijović is annexed
to this judgment.
N.B.
F.A.
CONCURRING OPINION OF JUDGE MIJOVIĆ
As
emphasised in my previous
concurring/dissenting opinions in six recent cases,
and 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 a 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.
