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FOURTH
SECTION
CASE OF KRAMARZ v. POLAND
(Application
no. 34851/07)
JUDGMENT
STRASBOURG
5
October 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Kramarz v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ján Šikuta, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34851/07) 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 Józef Kramarz (“the applicant”), on 7 June
2004.
- The
applicant, who had been granted legal aid, was represented by Ms B.
Słupska-Uczkiewicz, a lawyer practising in Wrocław. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant complained, in particular, that he had been deprived of
access to the Supreme Court.
- On
5 March 2009 the President of the Fourth Section decided to
communicate the complaint concerning the alleged denial of access to
the Supreme Court to the Government. It was also decided that the
Court would rule on the admissibility and merits of the application
at the same time (Article 29 § 1 of the Convention).
- In
accordance with Protocol No. 14, the application was allocated to a
Committee. The Government objected to the examination of the
application by a Committee. After having considered the Government's
objection, the Court rejects it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1953 and lives in Dębica.
- The
applicant was a party to civil proceedings concerning division of
co-ownership of a certain plot of land. The proceedings were
instituted in 2001. On 12 February 2003 the Lwówek Slaski
District Court awarded the plot to a certain M.K. and ordered that a
certain amount should be paid to the applicant.
- On
9 October 2003 the Jelenia Góra Regional Court partly amended
the first instance decision increasing the amount awarded to the
applicant and dismissed the remainder of his appeal.
- On
14 October 2003 the applicant requested to be served with written
grounds to that judgment. On 12 December 2003 the court served him
with them and the thirty day time limit for lodging of a
cassation appeal started to run.
- By
a letter of 12 December 2003, served on the court on 18 December
2003, the applicant requested that a legal aid lawyer be
assigned to the case to prepare a cassation complaint. On the same
day the court requested the applicant to submit a statement of his
financial situation in order to be able to examine his request.
- On
6 January 2004 the Jelenia Góra Regional Court granted
the applicant's request for legal aid. On 13 January 2004 the
Wałbrzych Bar Association assigned a legal aid lawyer to
the case.
- On
16 and 20 January 2004 the applicant and the lawyer had a telephone
conversation. In a letter to the lawyer dated 20 January 2004 the
applicant explained in a detailed manner the legal context of the
case and the reasons for which he was of the view that a cassation
complaint offered prospects of success.
- In
a letter to the court dated 22 January 2004 the lawyer explained in
detail why she saw no grounds on which to prepare a cassation
complaint in the applicant's case.
- On
3 March 2004 the legal-aid lawyer sent a copy of his opinion to
the applicant. It was served on the applicant on 8 March 2004. On
8 March 2004 also the court sent the lawyer's opinion to the
applicant.
- On
30 August 2007 the applicant requested the Lwówek Slaski
District Court to exempt him from costs of making copies of documents
in the case-file. On 6 September 2007 the Lwówek Slaski
District Court dismissed the applicant's request as unfounded. The
court established that the applicant owned property of 4,16 ha and
the proceedings had ended in 2003 so he had enough time to collect
founds for that purpose. On 12 October 2007 the Jelenia Góra
Regional Court dismissed the applicant's interlocutory appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the procedure for
lodging cassation appeals with the Supreme Court against judgments of
the appellate courts are stated in the Court's judgments in the cases
of Siałkowska v. Poland, no. 8932/05, 22 March
2007; Staroszczyk v. Poland, no. 59519/00, 22 March
2007; Smyk v. Poland, no. 8958/04, 28 July
2009; Zapadka v. Poland, no. 2619/05, 15 December 2009;
Bąkowska v. Poland, no. 33539/02, 12 January
2010.
- In
particular, the Supreme Court has repeatedly held that a request for
leave to appeal out of time was the only method by which a cassation
appeal submitted after the expiry of the time limit could be
admitted for examination (21 April 1997, II CZ 38/97;
27 September 2001, II UZ 51/01). In a further series of
decisions the Supreme Court considered that it would be unfair for
the legally-aided party to be penalised for the fact that legal aid
applications could not be processed quickly enough to make it
possible for a cassation appeal to be lodged within a period of
thirty days counted from the day of service of the judgment on the
party. The parties waiting for legal-aid services cannot be held at
fault for shortcomings in the system. A party who was obliged to have
recourse to legal aid should not be put in a worse situation than
that of a person who did not seek it. A request to appeal out of time
should therefore be submitted within seven days from the date on
which the legal-aid lawyer could obtain effective access to the case
file or had an effective possibility of drafting an appeal (4 March
2005, II UZ 72/04; 27 June 2000, I CZ 62/00), or from the date
when the lawyer was informed that he had been assigned to the case by
the local Bar Association (11 October 2001, IV CZ 163/01;
17 November 1998, II UZ 122/98; 11 October 2001, IV CZ
163/01;
- In
a resolution adopted by a bench of seven judges of the Supreme Court
on 17 February 2009 (III CZP 117/08) that court acknowledged that
there had been discrepancies in the manner in which the beginning of
the seven-day time limit for submitting an application for leave to
appeal out of time by legally-assisted parties had been determined.
The court was of the view that applications for leave served the
purpose of making access to the Supreme Court for legally-aided
parties genuine and effective. Hence, the beginning of the time-limit
could not be determined in a mechanical manner in all cases. The
courts should instead examine the circumstances of individual cases
as a whole and determine that date bearing in mind the genuine
possibility for a lawyer to examine the case and prepare a cassation
appeal.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
he had been denied access to the Supreme Court.
Article 6
§ 1 reads, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
relevant domestic remedies. She should have brought a civil action
for compensation against the legal aid lawyer. They were of the
view that a civil action was an effective remedy where a lawyer,
either legal aid or privately hired, was negligent in carrying out
his or her duties regarding legal representation in judicial
proceedings. They also referred to a complaint to the local Bar
Association under Article 28 of the Bar Act.
The
applicant disagreed. He submitted that a complaint to the local bar
could have been effective only in situations where a lawyer's refusal
was given in circumstances allowing for doubts to arise as to the
compatibility of that refusal with the ethical principles governing
the exercise of the profession. No such doubts had arisen in the
present case. For the same reason, the applicant could not possibly
have sought civil compensation from the lawyer as the lawyer's
conduct could not have been said to amount to tort.
-
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 (see Zapadka
v. Poland, referred to above, § 50; Bąkowska
v. Poland, referred to above, § 36).
- The
Court further notes that this complaint 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' arguments
- The
applicant submitted that the lawyer's refusal had made it impossible
for the applicant to proceed further with his case. The Supreme Court
had accepted, by way of a resolution given in 2000, that a legal aid
lawyer could refuse to lodge a cassation appeal. However, the
existing regulations did not properly address a situation of a
legally assisted party whose lawyer declined to prepare a
cassation appeal. This legislative lacuna had negatively affected the
applicant's position. The applicant had been informed of the
legal-aid lawyer's refusal after the time-limit had already expired.
In so
far as the Government referred to the possibility of seeking
retrospective leave to appeal out of time, the applicant emphasised
that there had been serious divergences in the manner in which the
courts had handled such requests, both as to the determination of
event triggering the running of the time-limit de novo and as
to the granting or refusal of such requests. These divergences had
been reviewed and acknowledged by the Supreme Court in its resolution
of 17 February 2009 (see paragraph 18 above). The relevant request
had therefore not offered any reasonably foreseeable prospects of
success to the applicant as the application by the courts of the
relevant provisions of the Code of Civil Procedure at the material
time had been haphazard. It had only been the resolution of February
2009 which offered to the courts guidance as to the proper manner of
handling such requests, in a way which would have respected the
procedural fairness and the parties' rights to avail themselves of
legal assistance under the legal aid scheme. The applicant
referred to the Court's judgments in the cases of Siałkowska
v. Poland, no. 8932/05, 22 March 2007; Del Sol
v. France, no. 46800/99, ECHR 2002 II and Gnahoré
v. France, no. 40031/98, ECHR 2000 IX and stressed that the
State were obliged to display diligence so as to secure to persons
amenable to the law the genuine and effective enjoyment of the rights
guaranteed under Article 6 of the Convention.
- The
Government first submitted that Article 6 of the Convention did not
explicitly guarantee a right to obtain legal assistance under
legal aid scheme in all civil cases. In any event, in the
present case the applicant had received such assistance free of
charge and his request for legal aid had been processed with all
requisite diligence.
- They
further argued that the applicant's case had been examined at two
levels of jurisdiction. Neither the Convention nor domestic law
guaranteed a right to have a civil case heard at three levels of
jurisdiction. The right to a court was not absolute and could
therefore be subject to certain limitations, in so far as they did
not impair the very essence of that right. In particular, the
criteria of admissibility of appeals to be lodged with the highest
courts could be strict and the procedure more formal than that before
the lower courts, without the requirements of Article 6 of the
Convention being breached thereby. 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 resolution of the Supreme Court given in
September 2000. That court had held that a lawyer assigned to a case
under a 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 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 their clients' instructions and wishes
uncritically and lodging remedies against their better judgment. Nor
was it the role of the State to compel lawyers to do so. Hence, the
lawyer's refusal had served the purpose of securing the proper
administration of justice by the Supreme Court, including ensuring
that the case load of that court would not be unreasonably increased
by unmeritorious cassation appeals.
- The
Government further submitted the case law of the Polish civil
courts indicated that retrospective leave to appeal out of time could
be granted where legal aid for the purposes of lodging a cassation
appeal had been given, but the legal aid lawyer could not comply
with all the relevant formalities within that time-limit. Had the
applicant requested such leave, it was likely that her request would
have been granted.
2. 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 (Staroszczyk
v. Poland, Siałkowska v. Poland, Smyk v. Poland,
Bąkowska v. Poland, Zapadka v. Poland, referred to
above). It adopts those principles for the purposes of the instant
case.
- The
Court first observes that where a party to civil proceedings is
represented by a lawyer, the procedural time-limits set by the Code
of Civil Procedure start to run on the date of the service of
judicial decisions on the lawyer (see Smyk v. Poland,
referred to above, § 63). In such situations no
difficulties arise in connection with establishing the date on which
the thirty-day time-limit for lodging a cassation appeal, applicable
at the material time, is to expire.
- The
situation is significantly different where, as in the present case, a
party is granted legal aid only after the second instance
judgment has been given.
The
case law of the Supreme Court provides that the time limit
for lodging a cassation appeal starts to run from the date on which
the judgment of the appellate court has been served on the
non-represented party. A party who is subsequently granted legal aid
is thereby put in a difficult position, because at the time of
service the time limit has already started to run. The courts
have repeatedly held that his or her request for legal aid does not
affect the running of the time limit. A lawyer subsequently
assigned to the case has therefore less time to examine the case and
decide, still within the time limit, whether a cassation appeal
offers prospects of success and to prepare it.
- The
Court further notes that the applicable domestic regulations do not
specify the time frame within which the applicant should be
informed about the refusal to prepare a cassation appeal (see
Siałkowska, cited above, § 114, Smyk
v. Poland, cited above, § 60). In the present case
the second-instance judgment, together with its written grounds, was
served on the applicant on 12 December 2003. It was on that date that
the thirty-day time-limit for lodging the cassation appeal started to
run. Subsequently, the applicant's request for legal aid, served on
the court on 18 December 2003, was granted on 6 January 2004.
However, the decision on the grant of legal aid did not affect the
running of the time-limit, which was to expire on 12 January
2004. The Court further observes that the legal-aid lawyer sent his
refusal to the applicant on 3 March 2004 and on 8 March 2004 the
court also sent a copy of that refusal to the applicant. The
applicant was therefore left with no realistic opportunity of having
his case brought to and argued before the Supreme Court by the
legal-aid lawyer within the time limit provided for by law (see
Siałkowska v. Poland, no. 8932/05, §§ 115 116,
22 March 2007).
- The
Court further notes that it has already dealt with the question of
whether legally-aided parties finding themselves in such situation
were left with no other procedural possibilities to have cassation
appeals lodged in the context of criminal as well as civil procedure.
As far as the former is concerned, it was established that –
under the established case-law of the Supreme Court – the
time-limit for lodging a cassation appeal should run de novo
from the day when the applicant has been informed of the legal-aid
lawyer's refusal to lodge a cassation appeal. This approach was found
to satisfy Convention standards, provided that the applicant has been
properly informed about his/her procedural rights at the time when
the lawyer's refusal was communicated to him or her (Kulikowski
v. Poland, no. 18353/03, § 69-71, ECHR
2009 ... (extracts); Antonicelli v. Poland,
no. 2815/05, § 44-45, 19 May 2009).
- In
the context of civil procedure the Court has found that the civil
courts' approach to the calculation of the time limit for
submitting a cassation appeal was stricter. Thus, the service on the
party of information that a legal aid lawyer refused to prepare
the appeal does not trigger the running of the time-limit de novo.
That approach was regarded by the Court as being incompatible with
Convention standards, save for situations where the refusal of the
legal-aid lawyer was notified to the applicant well before the
deadline was due to expire (see Smyk v. Poland,
referred to above, §§ 63-65, 28 July
2009).
- The
Court further observes that 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 17 above). The Government were unable to
indicate any consistent 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 as to whether after legal aid
lawyer's refusal they had had any possibility to pursue the
proceedings. 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.
- 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained that the courts had wrongly assessed the
evidence and, as a result, had failed to establish the facts of the
case correctly and had given erroneous judgments.
- 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 Schenk
v. Austria,
judgment of 12 July 1988, Series A no. 140, §§ 45-46,
and Garcia Ruiz
v. Spain,
no. 30544/96, Reports
of Judgments and Decisions
1999-I, § 28).
- The
applicant further complained that the outcome of the proceedings
amounted to a breach of Article 1 of Protocol No. 1 to the
Convention in that he was deprived of certain rights of pecuniary
value.
The Court recalls that the deprivation of property referred to in the
second sentence of the provision relied on by the applicant is
primarily concerned with the formal expropriation of assets for
public purposes and that a judicial decision on a claim as to which
of two litigants is the owner of certain property according to the
rules of private law can never be seen as constituting an unjustified
State interference with the property rights of the losing party, as
it is the very function of the courts to determine such disputes
(S.Ö., A.K., Ar.K. and Y.S.P.E.H.V. v. Turkey
(dec.) 31138/96, 14.9.99, No. 10000/82, Dec. 4.7.1983,
DR 33, p. 247[257]; and Nos. 8588/79 and 8589/79,
Dec. 12.10.1982, D.R. 29, p. 64[82]). The same applies to
proceedings, such as in the instant case, in which civil courts rule
on the parties' private law obligations.
- 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 claimed 200,000 euros (EUR) in respect of pecuniary
and non-pecuniary damage.
- The
Government did not submit their comments.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, having regard to awards made in similar cases against
Poland, referred to above (see paragraph 16), it awards the
applicant EUR 1,000 in respect of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 3,000 as reimbursement of legal fees
incurred in the proceedings before the Court and EUR 93
concerning costs borne in these proceedings.
- The
Government did not comment.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the Court notes that
the applicant sufficiently substantiated that most of these sums had
been actually and necessarily incurred, by submitting relevant
invoices and other evidence. Regard being had to the documents in its
possession and to its case-law, the Court considers it reasonable to
award the sum of EUR 3,093 covering legal fees, costs and
expenses for the proceedings before the Court.
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 the applicant's complaint under Article
6 § 1 of the Convention concerning the right of access to court
admissible 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 the following amounts,
to be converted into Polish zlotys at the rate applicable on the date
of settlement:
(a) EUR
1,000 (one thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage;
(b) EUR
3,093 (three thousand and ninety-three euros), plus any tax that may
be chargeable to the applicant, in respect of costs and expenses;
(c) 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 5 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni Bonello Deputy
Registrar President
