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FOURTH
SECTION
CASE OF DOMBROWSKI v. POLAND
(Application
no. 9566/10)
JUDGMENT
STRASBOURG
18 October 2011
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 Dombrowski v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
George
Nicolaou,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 27 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 9566/10) 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 Jarosław Dombrowski
(“the applicant”), on 22 January 2010.
- 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
7 July 2010 the President of the Fourth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
- 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 decided that the case should be examined by a Chamber.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970.
- On
25 September 2008 the Łódź Regional Court convicted
the applicant of attempted murder and sentenced him to 9 years’
imprisonment. On 11 December 2008 the Łódź Court of
Appeal quashed the first instance judgment and remitted the
case. On 3 March 2009 the Łódź Regional Court found
the applicant guilty of causing grievous bodily harm and sentenced
him to 5 years’ imprisonment. The applicant’s lawyer
appealed. By a judgment of 4 June 2009 the Łódź
Court of Appeal upheld the first instance judgment.
- Throughout
the judicial proceeding the applicant was represented by a legalaid
lawyer.
- By
a letter of 3 August 2009 the lawyer informed the court that he had
not found any grounds on which to prepare a cassation appeal.
- By
a letter of 7 August 2009 the court forwarded the lawyer’s
statement to the applicant. The letter read as follows:
“The Registry of the Łódź Court
of Appeal forwards [...] a copy of a statement of your legal-aid
lawyer, advocate Mr P.K., submitted in accordance with
Article 84 § 3 of the Code of Criminal
Procedure, for your information.”
- The
letter as well as the opinion were served on the applicant on
12 August 2009.
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 (II KZ
16/08) and in a number of similar decisions given in 2008.
- 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 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:
“1. 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. It was also open to him
to request that another legal aid lawyer be assigned to the
case. Had the time limit for lodging the appeal already expired
by the time the request had been granted, it would have been open to
the applicant to request 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 the applicant should have requested that another
legal-aid lawyer be assigned to him, the Court observes, having
regard to the case-law of the Supreme Court (see paragraph 15 above),
that a refusal of a legal-aid lawyer to prepare a cassation appeal
was not a valid ground on which the courts would assign another
lawyer to the case. As regards the Government’s argument
concerning 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 and he was left in
uncertainty as to his legal position.
- The
Government argued that the applicant should have requested
retrospective leave to appeal out of time. Such leave can only be
granted if the non-compliance with a time-limit occurred “outside
the applicant’s power” within the meaning of Article 126
§ 1 of the Code of Criminal Proceedings (“the Code”).
The Government submitted that there was well established
case-law of the domestic courts, regarding a failure to comply with a
time-limit which was due to the lack of instruction from the trial
court as being “outside the applicant’s power”. The
Government referred, in particular, to two decisions of the Supreme
Court, of 26 February 2009 (IV KZ 5/09) and
16 July 2009 (III KZ 58/09).
- The
Government concluded their submissions by arguing that given the
possibility of seeking a renewal of the time-limit for lodging a
cassation appeal after a legal-aid lawyer’s refusal and leave
to appeal out of time, a refusal by the legal-aid lawyer does not
deprive a party of access to the Supreme Court. Even if a court
failed to inform the applicant of the two above-mentioned procedural
mechanisms, a party would receive all the necessary information from
a lawyer, and the applicant would certainly seek another lawyer’s
assistance given that a cassation appeal could only be lodged by a
professional lawyer.
- 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 7 August 2009. The court’s
letter accompanying that refusal did not contain any information
concerning his 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
requested retrospective leave to appeal out of time, the Court notes,
firstly, that the time-limit for lodging the cassation appeal started
to run again and thus there was no need to seek retrospective leave.
Secondly, as to the possibility of requesting another legal-aid
lawyer, the Government admitted that this remedy could only be
effective if the first lawyer appointed in the case was negligent.
Thirdly, the courts informed the applicant of the legal aid
lawyer’s refusal, but failed to inform him of his procedural
rights.
- The
Court further 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, the Court concludes that there
has been a violation of Article 6 § 1 in conjunction
with Article 6 § 3 (c)
of the Convention and the Government’s objection
based on non-exhaustion of domestic remedies (see paragraph 19 above)
must accordingly be rejected.
II. 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.
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, costs and expenses
- The
applicant sought compensation for pecuniary and non pecuniary
damage in the amount of 5,000 euros (EUR). He did not make any claims
for reimbursement of costs and expenses.
- The
Government contested these claims.
- 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 2,000 under this head. The Court does not discern
any causal link between the violation of Article 6 and any financial
loss which the applicant might have suffered. Thus, there is no need
to award compensation for pecuniary damage.
B. 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
- Joins to the merits the Government’s
preliminary objection based on non-exhaustion of domestic remedies
and 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) and dismisses in consequence the Government’s
above-mentioned objection;
- 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 2,000
(two 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 18 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinions are
annexed to this judgment:
(a) concurring
opinion of Judge Mijović;
(b) separate
opinion of Judge De Gaetano.
N.B.
T.L.E.
CONCURRING OPINION OF JUDGE MIJOVIĆ
As
emphasised in my previous
concurring/dissenting opinions in ten recent cases,
and in the joint dissenting opinion in Smyk v. Poland,
no. 8954/04, 28 July 2009, 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 civil and administrative proceedings. To
avoid repetition, I refer to the detailed reasoning of those
opinions.
SEPARATE OPINION OF JUDGE De
Gaetano
- I
voted in favour of a violation of Article 6 § 1 when read in
conjunction with Article 6 § 3 (c) only because of the
particular facts of the case set within the context of a peculiar
domestic case-law.
- After
the applicant – who was represented throughout the proceedings
by a legal-aid lawyer – was convicted of grievous bodily harm
and sentenced to imprisonment for five years, and after the Court of
Appeal had upheld the first instance judgment, his legal-aid lawyer
informed the latter court that he had not found any grounds on which
to prepare a cassation appeal. The Court of Appeal informed the
applicant, who was already in prison, of this fact but failed to
inform him of his “procedural rights”, namely that the
time-limit for filing a cassation appeal in the (unlikely) event of
his managing to obtain the services of another lawyer at his
own expense or of a lawyer acting pro bono, commenced to run
(or, more precisely, commenced to run again) from the date on which
that same court had notified him of the legal-aid lawyer’s
refusal. This is the crux of the issue, set out in §§ 25
and 27 of the judgment.
- How
does this requirement to inform about “procedural rights”
square with – if at all – the cardinal rule that everyone
is presumed to know the law, whether substantive or procedural, and
regardless of whether the law is statutory, judge made (or common
law in some jurisdictions) or customary as the case may be?
Because of the fact that this rule is so basic and fundamental, one
finds only cursory references to it in the jurisprudence of the
Commission and the Court, and only in a handful of cases (e.g.
Dello Preite v. Italy (no. 15488/89) Commission decision
25 February 1995; E.E. v. Austria (no. 31697/96) 7 September
1999; Polednová v. the Czech Republic (no. 2615/10)
21 June 2011).
4. In
order to obviate some of the difficulties inherent in, and criticisms
of, the Polish system of cassation appeals,
particularly when convicted prisoners who were represented by
legal-aid lawyers were involved, the Polish Supreme Court, in a
decision handed down on 26 February 2002, changed its previous
position concerning the date from which the time for lodging a
cassation appeal commences to run, and held (i) that when a legal aid
lawyer refused to file a cassation appeal on behalf of a convicted
prisoner because in the lawyer’s view the appeal would offer no
prospects of success, the time-limit for lodging the appeal would
start to run only from the date on which the prisoner was informed by
the Court of Appeal of the legal-aid lawyer’s opinion and not
from the earlier date when the judgment of the appellate court was
served on the prisoner; moreover (ii) it also held that the Court of
Appeal was also specifically to instruct the prisoner of this fact so
that if he wanted to he could take other measures to seek the legal
assistance necessary for the lodging of a cassation appeal (see,
Kulikowsky v. Poland 19 May 2009, § 27). It is against
the backdrop of this specific domestic decision that the
instant case (as well as other similar ones where a violation has
been found on account of the appellate court not having advised the
prisoner about his “procedural rights” in respect of the
cassation appeal, e.g. Jan Zawadzki v. Poland (no.
648/02) 6 July 2010, § 16)) has to be viewed.
5. We
are now in the last quarter of the year of Our Lord 2011. More
than nine years have passed since the decision of the Supreme Court
of Poland which established the “new” procedure as to the
running of the time-limit. In the instant case, the facts mentioned
in paragraph 2, supra, occurred between September 2008 and
August 2009. Has not enough time passed so that this Court could say
that the issue of the time-limit for the filing of a cassation appeal
pursuant to the legal-aid lawyer’s refusal to file the same, is
now well established judge-made law which must be presumed to be
known by one and all? Apparently not. It is important to recall in
this connection that not every or any procedural failing – in
the sense of the non-observance of domestic procedure – will
necessarily amount to a breach of Article 6. One possible
justification for finding – notwithstanding the passage of time
– a violation of Article 6 § 1 in conjunction with Article
6 § 3 (c) is that a person who is in detention is hardly at
liberty to rush headlong into a lawyer’s office to seek his
advice upon receipt of the Court of Appeal’s letter, and that
therefore this person’s “vulnerable” position makes
the requirement that he should be informed of his “procedural
rights” necessary in order to give substance to the said
articles. To my mind this argument is not very convincing, since the
time-limit is not just a matter of a few days or of a couple of
weeks, but of thirty running (calendar) days. What the Court is
possibly trying to say in the instant judgment is that the legal-aid
lawyer’s refusal to file the appeal somehow engages the State’s
additional obligation to provide, free of charge, advice as to the
applicant’s “procedural rights”.
6. Be
that as it may, what is to be avoided is the development of phrases,
like those used in §§ 25 and 27 of the present judgment,
into mantras which, often inadvertently, are then extrapolated to
other situations thereby undermining the principle that everyone is
presumed to know the law.
