On
6 June 2005 the Katowice Court of Appeal refused to entertain
a cassation appeal filed by the applicant himself as it did not
comply with the applicable formal requirements.
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 originating 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 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
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
Government argued that the Katowice Court of Appeal had informed the
applicant about his legal-aid lawyer’s refusal and held that
the time-limit for lodging a cassation appeal would start to run
anew, starting on the date on which the refusal had been served on
the applicant. They reiterated that the mere fact that a legal aid
lawyer could refuse to represent a defendant in proceedings before
the highest court could not be said to be, of itself, tantamount to a
denial of legal assistance which would have been incompatible with
the State’s obligations under Article 6 of the Convention.
Furthermore, in case of a lawyer’s refusal to draft a cassation
appeal, the State Parties were not obliged to provide assistance by
successive legal-aid lawyers.
The
applicant disagreed.
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).
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; Antonicelli v. Poland, no. 2815/05, § 30-37, 19 May
2009; Jan Zawadzki v. Poland, no. 648/02, § 15-16, 6 July
2010). It adopts those principles for the purposes of the instant
case.
In
the present case the applicant was served with the lawyer’s
refusal on 14 March 2005. The Court notes in this connection that the
procedural framework governing the making available of legal aid for
a cassation appeal in criminal cases 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).
In
the present case, the court’s note accompanying that refusal
contained detailed information concerning his procedural rights. In
particular, the Court of Appeal informed the applicant, in compliance
with the case-law of the Supreme Court (see paragraph 15 above), that
on the date of the service of that refusal the thirty-day time-limit
for lodging a cassation appeal started to run anew. Hence, the Court
is of the view that the court took appropriate steps to inform the
applicant of his procedural situation.
The Court is aware that at the same time the court
informed the applicant that after the first legal-aid lawyer’s
refusal to prepare a cassation appeal a second legal-aid lawyer would
not be assigned to the case. However, the Court has already held that
Article 6 of the Convention does not confer on the State an
obligation to ensure assistance by successive legal-aid lawyers for
the purposes of pursuing legal remedies which have already been found
not to offer reasonable prospects of success. In the present case the
first lawyer appointed under the legal-aid scheme found no legal
grounds on which to prepare a cassation appeal. In the absence of
indications of negligence or arbitrariness on the lawyer’s part
in discharging her duties, the State can be said to have complied
with its obligations to provide effective legal aid to the applicant
in connection with the cassation proceedings (Kulikowski v.
Poland, cited above, § 68).
The
foregoing considerations are sufficient to enable the Court to
conclude that the applicant was not put in a position in which he was
left without adequate legal representation such as to impair his
effective access to a court in breach of the Convention.
There
has accordingly been no violation of this provision.
II. OTHER VIOLATIONS 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 the 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.
Lastly,
the applicant complained under Article 3 that his detention amounted
to inhuman treatment, and under Article 6 § 2 that his detention
violated the principle of the presumption of innocence.
Having
examined all the material in its possession and regardless of other
possible grounds of inadmissibility, the Court finds nothing in the
case file which might disclose any appearance of a violation of the
provisions relied on.
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.
FOR THESE REASONS, THE COURT
Declares unanimously the complaint concerning
access to the Supreme Court admissible and the remainder of the
application inadmissible;
Holds by six votes to one that there has been no
violation of Article 6 § 1 in conjunction with Article
6 § 3 (c) of the Convention.
Done in English, and notified in writing on 12 April 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 dissenting opinion of Judge Mijović
is annexed to this judgment.
N.B.
T.L.E
DISSENTING OPINION OF JUDGE MIJOVIĆ
As
emphasised in my previous
concurring/dissenting opinions in seven 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 a legally-aided person on the ground that the
claim has no reasonable prospects of success, as a general one, which
affects not only criminal but also civil and administrative
proceedings. To avoid repetition, I refer to the detailed reasoning
set out in those opinions.
