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FOURTH
SECTION
CASE OF BALCER v. POLAND
(Application
no. 19236/07)
JUDGMENT
STRASBOURG
5
October 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Balcer 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. 19236/07) 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, Ms Regina Balcer (“the
applicant”), on 28 April 2007.
- The
applicant was represented by Ms G. Kalinowska-Jarzyńska, a
lawyer practising in Poznań. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
- The
applicant complained that she had been deprived of access to the
Supreme Court.
- On
5 March 2009 the President of the Fourth Section decided to
communicate the application to the Government. It was also decided
that the Committee 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 1952 and lives in Rogoźno.
- After
the applicant's husband had died in April 2002, she instituted
proceedings in which she claimed her widow's pension. On 25 September
2002 the Poznań Social Security Board dismissed the applicant's
request. On 24 April 2006 the Poznań District Court dismissed
her appeal against that decision. On 11 October 2006 the Poznań
Regional Court dismissed the applicant's further appeal.
- On
13 October 2006 the applicant requested to be served with the written
grounds to that judgment. They were served on her on 6 November 2006.
- On
27 December 2006 the applicant requested the court to assign a
legal-aid lawyer to the case with a view to lodging a cassation
appeal with the Supreme Court.
- On
12 January 2007 the Poznań Regional Court allowed the
applicant's request for legal aid. On 17 January 2007 the Poznań
Bar Association assigned a lawyer to the case. On 23 January 2007 the
Poznań Regional Court informed the applicant accordingly.
- In
a letter to the court dated 9 February 2007 the lawyer explained
that she saw no grounds on which to prepare a cassation complaint in
the applicant's case.
- On
20 March 2007 the court informed the applicant about the lawyer's
refusal and that the time limit for the lodging of a cassation
complaint had expired on 6 January 2007. The court's letter was
served on the applicant on 23 March 2007.
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.
- On
5 February 2005 amendments to the Code of Civil Procedure, adopted on
22 December 2004 (Ustawa o zmianie
ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju
sądów powszechnych),
entered into force. Under the amended text of Article 398
1 § 5, the time limit for lodging a
cassation appeal with the Supreme Court was extended from thirty to
sixty days.
- 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 she 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. She submitted that the remedies referred to by
the Government were not of a judicial character. She argued that a
complaint under 28 of the Bar Act was in no way related to the civil
proceedings in which the party was involved. It could not affect the
running of time-limits provided by applicable provisions of civil
procedure. The party could only, if successful, set in motion
professional proceedings relating to the lawyer's disciplinary
responsibility which had no bearing on his or her procedural position
in the civil proceedings. For the same reason a compensation claim
against the lawyer could not be considered a relevant remedy, capable
of offering appropriate redress.
-
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 applicable law of civil procedure
formulated the admissibility conditions for a cassation appeal in an
excessively strict manner. Moreover, the judicial practice concerning
interpretation of these conditions was divergent and often arbitrary.
As result, most cassation appeals were rejected without there being a
possibility for a lawyer of rectifying their deficiencies as to the
form or content. Consequently, parties were deprived of the
opportunity of having their cases examined by the highest judicial
authority. Difficulties arising in connection with formulation of
cassation appeals resulted in discouraging many lawyers from carrying
out their obligation to represent legally-aided parties to civil
proceedings. This was further compounded by the fact that the Code of
Civil Procedure obliged the Supreme Court to inform the local Bar
Association of every and each cassation appeal rejected for failure
to respect relevant requirements.
The
applicant stressed that the proceedings concerning the lodging of a
cassation appeal with the Supreme Court had to meet the Convention
standards, regardless of the fact that the Convention itself did not
oblige the Contracting Parties to introduce a cassation appeal to a
third-instance court. Due to the shortcomings in the legal regulation
of the cassation proceedings in Poland the applicant's right of
access to court had been breached.
- 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 further 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, e.g., Smyk v. Poland,
referred to above, § 63).
- Where
a party does not have legal representation, 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 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
that party.
- The
Court observes that 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 Polish courts,
including the Supreme Court, have repeatedly held that his or her
request for legal aid does not affect the running of the time-limit.
A legal-aid 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). The Court has already found that the way in which
those regulations were applied in practice were capable of leaving
legally-aided parties with no realistic opportunity of having their
cases brought to the Supreme Court within the time-limit provided for
by law (Siałkowska v. Poland, cited above,
no. 8932/05, §§ 11 - 155). In the present case
the second-instance judgment, together with its written grounds, was
served on the applicant on 6 November 2006. It was on that date that
the sixty-day time-limit for lodging the cassation appeal started to
run.
- However,
the Court observes that subsequently the applicant submitted her
request for legal aid on 27 December 2006, only nine days before the
two-month time limit was to expire. It has not been shown or even
argued that this delay had been justified by any special
circumstances for which the applicant could not be held responsible,
or that she could not have been aware of the time limit within
which a cassation appeal had had to be submitted to the court. The
time limit was to expire on 6 January 2007. The court,
having received her request, examined it speedily and granted her
request on 12 January 2007.
- Having
regard to the delay with which the applicant availed herself of her
procedural right, the Court is of the view that she failed to display
diligence which should normally be expected from a party to civil
proceedings (see Pretto and Others v. Italy, judgment of
8 December 1983, Series A no. 71, pp. 14-15, § 33;
Bąkowska v. Poland, referred to above, § 53-54).
- The
Court therefore concludes that in the particular circumstances of the
present case there has been no violation of Article 6 § 1
of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
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
