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FOURTH
SECTION
CASE OF SZPARAG v. POLAND
(Application
no. 17656/06)
JUDGMENT
STRASBOURG
5 October
2010
This
judgment is final but it may be subject to editorial revision.
In the case of Szparag 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. 17656/06) 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, Mr Zbigniew Szparag (“the
applicant”), on 12 April 2006.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs. .
- On
22 June 2009 the President of the Fourth Section decided to give
notice of 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
- The
applicant was born in 1976. He is currently serving a prison sentence
in Wołów prison.
- On
23 August 2005 the Kłodzko District Court convicted the
applicant of sexual abuse of a minor and sentenced him to five years'
imprisonment. The applicant appealed.
- On
20 February 2006 the Świdnica Regional Court upheld the
first instance judgment. On a later unknown date the applicant
requested that a legal aid lawyer be assigned to the case to
prepare a cassation appeal. On 10 April 2006 the court allowed
his request. The court's decision was served on the applicant on 20
April 2006.
- By
a letter to the court dated 11 May 2006 the lawyer refused to prepare
a cassation appeal, finding no grounds for it. This letter was
subsequently forwarded by the court to the applicant.
- On
6 June 2006 the applicant requested the court to assign a new
legal aid lawyer to the case. In letters to the applicant dated
14 June and 10 July 2006 the court refused to do so. The
court referred to the legal-aid lawyer's refusal of 11 May 2006.
- Neither
in the letter accompanying the lawyer's refusal of 11 May 2005
nor in its later letters the court informed the
applicant of his further procedural rights.
B. Other proceedings
- On
an unknown date in 2005 the applicant instituted criminal proceedings
alleging that correspondence sent by him to courts, prosecutors and
other authorities had been destroyed by prison officers. On 22 August
2005 the Kłodzko District Prosecutor refused to institute
proceedings in the case. On 30 November 2005 the Kłodzko
District Court upheld the decision of the Kłodzko District
Prosecutor.
- On
an unknown date in 2006 the applicant, who was serving a prison
sentence, filed a request for temporary leave. On 6 July 2006 the
Gdańsk District Court dismissed his request. On 15 September
2006 the Gdańsk Regional Court dismissed his appeal as
unfounded.
- On
a later date in 2006 the applicant requested the penitentiary judge
to grant him another temporary leave. On 9 October 2006 the judge
refused his request. On 21 December 2006 the Gdańsk Regional
Court dismissed his appeal as unfounded.
- In
2005 the applicant requested that criminal proceedings be instituted
against a judge examining his case, alleging that he had destroyed
certain documents from his case file. On 6 December 2006 the Kłodzko
District Prosecutor refused the request. On 11 February 2008 the
Nysa District Court upheld this decision.
- In
criminal proceedings concerning an assault against the applicant by
his fellow-prisoner, on 29 June 2007 the Kwidzyn District Court
convicted the accused and sentenced him to 10 months' imprisonment.
The court also obliged him to pay the applicant damages in the amount
of PLN 8,000.
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, no. 18353/03, §§ 19-27,
ECHR 2009 ... (extracts) and Antonicelli
v. Poland, no. 2815/05,
§§ 14-22, 19 May 2009).
- In
particular, on 26 February 2002 the Supreme Court examined a
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 defendants
adequate procedural guarantees of access to the Supreme Court within
a reasonable time frame (II KZ 16/08).
- In
its decision of 25 March 1998 the Supreme Court stated that the
refusal of a legal-aid lawyer to lodge a cassation appeal did not
constitute a valid ground for granting retrospective leave to lodge
such an appeal by another lawyer out of time (V KZ 12/98). It
confirmed this ruling in a further decision of 1 December 1999. The
Supreme Court observed that the court could only assign a new
legal-aid lawyer to the case if it were shown that the first lawyer
had been negligent in his or her task of assessing whether a
cassation appeal had any prospects of success. If this were not the
case, a court was not obliged to assign a new legal-aid lawyer to
represent the convicted person and its refusal was not subject to
appeal (III KZ 139/99). The Supreme Court reiterated its position in
a number of other decisions (e.g. II KZ 11/02, II KZ 36/02).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION
WITH ARTICLE 6 § 3 (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 avail himself
of the applicable domestic remedies. He should have hired a lawyer of
his own choice with a view to submitting a cassation appeal on his
behalf. Had a relevant time-limit already expired by the time when a
privately hired lawyer lodged such an appeal, it would have been open
to the applicant to request a retrospective leave to appeal out of
time.
- The
applicant disagreed.
- The
Court notes that legal representation was mandatory for the purposes
of preparing a cassation appeal. However, in the applicant's case the
courts, by granting the applicant legal aid, acknowledged his lack of
financial resources. In such circumstances, the Court considers that
the applicant should not therefore have been required to embark on
further attempts to obtain legal assistance with a view to lodging a
cassation appeal for the purposes of exhaustion of domestic remedies
(see Seliwiak v. Poland, no. 3818/04, § 47,
21 July 2009). In so far as the Government argued that a
privately hired lawyer could have subsequently sought retrospective
leave to appeal out of time, 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 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
- The
applicant submitted that he had been granted legal aid for the
purposes of lodging a cassation appeal. However, he had been
ultimately deprived of access to the Supreme Court because that
lawyer refused to prepare a cassation appeal in his case and he was
left in uncertainty as to his legal position.
The
Government submitted the legal-aid lawyer was independent in the
exercise of her obligations. Independence of legal profession was
crucial for effective functioning of fair administration of justice.
It was not the State's role to oblige a lawyer, whether appointed
under legal-aid scheme or not, to lodge a remedy contrary to his or
her opinion regarding the prospects of success for such a remedy. The
responsibility of the State was to ensure a requisite balance
between, on the one hand, effective enjoyment of access to justice
and the independence of the legal profession on the other. They
referred to the Court's judgment in the case of Siałkowska
v. Poland, no. 8932/05, § 112, 22 March
2007).
In
the present case the legal aid lawyer had acted with requisite
diligence. She had prepared her opinion together with grounds for it
within a short time. The courts examined the applicant's requests to
be granted legal assistance under legal aid scheme twice and
found nothing to reproach the legal-aid lawyer for.
- 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).
Furthermore,
the Court has already had occasion to set out at length the relevant
principles derived from its case-law in this area (Kulikowski
v. Poland, no. 18353/03, ECHR
2009 ... (extracts); Antonicelli
v. Poland, no. 2815/05,
19 May 2009; Arciński
v. Poland, no. 41373/04,
15 September 2009). It adopts those principles for the
purposes of the instant case.
- In
the present case the court informed the applicant about the legal-aid
lawyer's refusal by a letter of unknown date. In its further letters
the court refused to appoint a new lawyer under legal aid
scheme. The court referred to the legal aid lawyer's refusal of
11 May 2006.
The
court's letters did not contain any information concerning the
applicant's procedural rights. In particular, the court did not
inform him that under the case-law of the Supreme Court, adopted in
2002, the time-limit for lodging a cassation appeal started to run
only on the date on which the defendant was served with the legal-aid
lawyer's refusal. The failure to clarify the applicant's legal
situation, given that at that time he was not represented by a
lawyer, meant that he had no way of knowing when the time-limit for
lodging a cassation appeal started to run and what steps, if any, he
had at his disposal to pursue the cassation proceedings, for instance
by trying to find another lawyer who might be persuaded to file a
cassation appeal on his behalf. In so far as the Government argued
that the applicant should have hired a lawyer and that the lawyer
could have requested retrospective leave to appeal out of time, the
Court notes that the applicant had no way of knowing when the
time-limit started to run.
The
Court observes 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 (see
Kulikowski v. Poland, cited above, § 70;
Antonicelli
v. Poland,
cited above, § 45; Jan Zawadzki v. Poland,
no. 648/02, § 16, 6 July 2010).
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.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained under Article 6 of the Convention about the
outcome and unfairness of all sets of proceedings, summarised in
paragraphs 10 – 14 above.
-
However, even assuming that this provision of the Convention is
applicable to the proceedings concerned, 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.
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.”
- The
applicant requested the Court to award him just satisfaction and
requested the Court to quantify the proper amount. He did not make
any claim for reimbursement of costs and expenses.
- 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.
- 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
- Joins to the merits the Government's preliminary
objection based on non-exhaustion of domestic remedies;
- Declares admissible the applicant's complaint
concerning lack of access to a court and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in conjunction with Article 6 § 3
(c);
- 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.
Done in English, and notified in writing on 5 Octobre 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni Bonello
Deputy
Registrar President
