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FOURTH
SECTION
CASE OF SUBICKA v. POLAND (No. 2)
(Applications
nos. 34043/05 and 15792/06)
JUDGMENT
STRASBOURG
21 June
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 Subicka v. Poland
(no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
Ledi Bianku,
Zdravka
Kalaydjieva,
Nebojša Vučinić,
judges,
and Lawrence Early, Section Registrar,
Having
deliberated in private on 31 May 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 15792/06 and
34043/05) 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 Iwona Subicka (“the applicant”), on 8 April
2005 and 23 August 2005, respectively.
- The
applicant, who had been granted legal aid, was represented by Mr K.
Gotkowicz, a lawyer practising in Gdansk. The Polish Government (“the
Government”) were represented by their Agent, Mr J. Wołąsiewicz
of the Ministry of Foreign Affairs.
-
The applicant complained under Article 6 § 1 of the Convention
that the proceedings had been unfair in that she had been denied
effective access to a court. She referred to the fact that the
lawyers appointed under the legal-aid scheme had failed to represent
her interests effectively in that they had refused to lodge with the
Supreme Administrative Court cassation appeals against judgments
given by the regional administrative court.
- On
25 September and 10
October 2007 the President of the Fourth Section decided to
give notice of the applications to the Government.
- Given that the present two applications concerned two
sets of proceedings raising a similar subject matter, the Court
decided that the applications should be joined (see Rule 42 § 1
of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954. She lives in Gdańsk Zaspa.
A. Application no. 15792/06 - the first set of
administrative proceedings
- By
a judgment of 22 February 2006 the Gdańsk Regional
Administrative Court dismissed the applicant’s appeal against a
second-instance administrative decision by which she had been refused
a monthly social assistance benefit.
- On
8 March 2006 the applicant was granted, by a decision of a registry
official, the assistance of a legal-aid lawyer for the purposes of
lodging a cassation appeal with the Supreme Administrative Court.
- On
10 March 2006 the judgment of 22 February 2006, together with
its written grounds, was served on the applicant. On 14 March 2006
the decision on the grant of legal aid was served on her.
- On
12 April 2006 the registry of the court requested the Gdańsk Bar
Association to assign a lawyer to her case.
- On
20 April 2006 the Bar Association informed the court that Mr J.B.
had been assigned to represent the applicant. On 25 April the Bar
Association informed the applicant accordingly and requested her to
grant him an authority to act.
- By
a letter of 5 May 2006 the lawyer informed the applicant that he had
found no legal grounds on which he could draft a cassation appeal. On
8 May 2006 he informed the court thereof.
B. Application no. 34043/0 - the second and third
sets of administrative proceedings
1. The second set of administrative proceedings
- By
a judgment of 11 February 2004 the Gdańsk Regional
Administrative Court dismissed the applicant’s appeal against a
second-instance administrative decision by which she had been refused
a monthly social assistance benefit.
- This
judgment, together with its written grounds, was served on the
applicant on 5 March 2004. She was informed that the thirty day
time limit for lodging a cassation appeal started to run on the
date on which the judgment together with its written grounds was
served on the party. It was therefore to expire on 4 April 2004.
- On
10 March 2004 the applicant was granted legal aid by a decision of a
registry official. This decision was sent to the applicant shortly
afterwards.
- On
25 March 2004 the local Bar Association informed the court in writing
that Ms B. K.–Z. had been assigned to represent the
applicant. Shortly afterwards the applicant was served with a copy of
this letter.
- By
a letter dated 30 March 2004 the lawyer informed the court that she
saw no grounds on which to prepare a cassation appeal. She did not
inform the applicant about her refusal.
- The
applicant contacted the lawyer by phone on 6 July 2005. She was
informed about the lawyer’s refusal to prepare a cassation
appeal.
- On
7 July 2005 the applicant complained to the Gdańsk Bar
Association that the lawyer had failed to inform her about her
refusal to prepare a cassation appeal against the judgment. She
argued that the lawyer should have made reasonable efforts to inform
her, as her legal aid client, of her decision. She submitted
that she had learnt about the refusal a long time after the expiry of
the time-limit for the lodging of a cassation appeal and only because
she herself had contacted the lawyer.
- By
a letter of 16 August 2005 the Gdańsk Bar Association informed
the applicant that it had investigated her complaint. It stated that
the lawyer had been assigned to represent the applicant on 17 March
2004. She had examined the case file and found no grounds on which to
prepare a cassation appeal. She subsequently informed the court of
her refusal. In these circumstances, there were no grounds for
accepting that the lawyer’s conduct had been negligent.
2. The third set of administrative proceedings
- By
two judgments of 25 May 2005 the Gdańsk Regional Administrative
Court dismissed the applicant’s appeal against the two
second-instance administrative decisions by which she had been
refused a monthly social assistance benefit. She requested to be
granted legal aid.
- By
a decision of 4 July 2005 the registry of the court granted her
request.
- On
6 July 2005 the judgments, together with their written grounds, were
served on the applicant. She was informed that the thirty day
time limit for lodging cassation appeals started to run on the
date on which the judgments together with their written grounds were
served on the party.
- On
25 July 2005 the registry of the court requested the Gdańsk Bar
Association to assign a lawyer to the case.
- By
a letter of 28 July 2005 the Bar Association informed the court in
writing that Mr K. M. had been assigned to represent the applicant
for the purposes of the cassation proceedings. A copy of this letter
was also sent to the applicant.
- By
a legal opinion of 10 August 2005 the lawyer informed the court that
he had found no grounds on which to prepare a cassation appeal
against the judgments of 25 May 2005. The same opinion was sent on
the same date to the applicant and to the Regional Bar Association.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
relevant domestic law and practice concerning the procedure for
lodging cassation appeals with the Supreme Administrative Court
against judgments of the Regional Administrative Courts are stated in
the Court’s judgment in the case of Subicka v. Poland,
no. 29342/06, §§ 12 21, 14 September
2010.
- In
particular, in its decision no. II FZ 651/07 of 18 January
2008 the Supreme Administrative Court 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 by a legally-aided
applicant could be admitted for examination.
- When
legal aid has been granted and the time-limit for the submission of a
cassation appeal has already expired, it is open to the legally-aided
party to submit the appeal together with a request for leave to
appeal out of time made under sections 86 and 87 of the Law on the
Procedure before Administrative Courts (e.g. NSA FZ 754/04 of
31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In
certain cases the courts stated that such a request should be
submitted within seven days from the date on which the lawyer
obtained a power of attorney from the party, which date is considered
as the date on which the impediment to lodging an appeal ceased to
exist (e.g. the Białystok Regional Administrative Court, II SAB
Bk 27/07 of 10 April 2008), or from the date when the lawyer could
obtain effective access to the case file (e.g. the Poznań
Regional Administrative Court, IV SA/Po 865/06 of 13 November
2007).
- In
a number of its recent decisions the Supreme Administrative Court
acknowledged the difficulties which legally-aided parties experienced
in connection with lodging their cassation appeals against judgments
of the first-instance administrative courts. It expressed the view
that they should not be penalised for the fact that their
requests for legal aid were not processed speedily enough.
It analysed relevant case-law of the administrative courts and
noted that the manner in which the beginning of the
time-limit for lodging cassation appeals was determined had led
to divergent results. It held that it was necessary to determine
the relevant time in a manner compatible with effective access to the
highest administrative court and which ensured equal treatment
for parties represented by lawyers appointed under the legal aid
scheme and by privately hired lawyers. The court held that the
time-limit for a legally-aided party started to run only on the day
when a legal-aid lawyer had a genuine possibility of lodging the
cassation appeal and not when he or she was informed of having been
assigned to the case. The court was of the view that the latter
approach was far too rigorous and rendered the effective enjoyment of
legal assistance granted under the legal-aid system illusory. In any
event, the cassation appeal had to be lodged within thirty days from
the day on which the party was informed of the appointment of the
legal-aid lawyer (I FZ 569/06 of 8 December 2006; I FZ
667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II
FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08
of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of
9 December 2009; I FZ 30/09 of 2 March 2009).
THE LAW
I. JOINDER
OF THE APPLICATIONS
- Given their common factual and legal background,
the Court decides that these two applications should be joined
pursuant to Rule 42
§ 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
32. The
applicant complained that as a result of the legal-aid lawyers’
refusals to prepare and lodge cassation appeals with the Supreme
Administrative Court she had been denied access to that court. She
referred to Article 6 § 1 of the Convention which, in
so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
- The
Government argued, firstly, that the application was incompatible
ratione personae with the provisions of the Convention.
Legal-aid lawyers had been assigned to her cases with a view to
examining the prospects of success of a cassation appeal against the
judgments of the Regional Administrative Court. Any disagreements
that might have arisen between the applicant and the lawyers could
not incur the liability of the State. The lawyers were members of an
independent and self governing professional association which
adopted its own rules of conduct and disciplinary regulations. It
followed from the independence of the legal profession that the
conduct of legal representation was essentially a matter between the
represented party and his or her counsel, whether appointed under the
legal-aid scheme or privately financed.
- The
applicant disagreed. She submitted that the circumstances of the case
had engaged the State’s responsibility, because the State had
failed to put in place a coherent system of procedural provisions
governing the granting of legal aid in the context of administrative
proceedings and ensuring the efficient functioning of the system in
practice.
- The
Government further submitted that the applicant had failed to exhaust
relevant domestic remedies. She could have complained to the local
Bar Association under section 28 of the Bar Act about the lawyers’
alleged negligence. She should also have brought a civil action for
compensation against the lawyers concerned. The Government were of
the view that such an action was an effective remedy where the
lawyer, either appointed under the legal-aid scheme or privately
hired, was negligent in carrying out his or her duties regarding
legal representation. It had also been open to the applicant to
request leave to lodge a cassation appeal with the Supreme
Administrative Court out of time.
- The
applicant submitted that in the light of the established case law
of the Supreme Court and the Supreme Administrative Court, a refusal
to prepare a cassation appeal could not by itself be regarded as
negligence giving rise to an action for damages before a civil court.
Hence, the lawyers’ refusals could not be seen as a valid
ground for either a complaint about their conduct, either to be
pursued in disciplinary proceedings or giving rise to civil liability
on the lawyers’ part. In any event, the opinions prepared by
legal-aid lawyers in the present case had been detailed enough. It
could not therefore be said that they had failed in their duty to
properly examine the applicant’s cases.
- In
so far as the Government referred to the compensatory remedies and
argued that the application was incompatible ratione personae
with the provisions of the Convention, the Court reiterates that it
has already examined and rejected such arguments in previous cases
(e.g. Siałkowska v. Poland, no. 8932/05, § 59,
22 March 2007; Subicka v. Poland, referred to above,
§ 28, 14 September 2010). It accordingly dismisses
these objections.
- In
so far as the Government argued that it had been open to the
applicant to request leave to appeal out of time, the Court considers
that such objection is closely linked to the substance of the
applicant’s complaint under Article 6 § 1. Its
examination should therefore be joined to the merits of the case.
- The
Court concludes therefore that the application is not manifestly
ill founded within the meaning of Article 35 § 3
of the Convention. No other ground for declaring it inadmissible has
been established. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
- The
applicant submitted that in the circumstances of the case her access
to court had been restricted and proved illusory. This was because
under Polish law there were no coherent procedural regulations
regarding the obligations of legal-aid lawyers in connection with
cassation appeals. The regulations and relevant judicial practices
were different for civil, administrative and criminal proceedings. By
creating such confusion as to the rights and obligations of legal-aid
lawyers and their clients, the State had failed to comply with its
duty to properly regulate access to the courts, including the
administrative courts.
- The
applicant argued that in the proceedings before the administrative
courts the time-limit for lodging a cassation appeal started to run
on the date when the judgment of the regional administrative court
with its written grounds was served on the party concerned. It was
open to that party to apply for legal aid afterwards. However, when
legal aid was subsequently granted and a legal-aid lawyer was
assigned to the case after the expiry of the thirty-day time-limit,
he or she could only ask for retrospective leave to appeal out of
time. As the applicable provision of the Act on the Procedure Before
Administrative Courts provided for a seven-day time-limit for taking
procedural steps out of time, the time limit for the actual
preparation of a cassation appeal was then effectively shortened to
only seven days. Moreover, it was left to the court’s
discretion to grant leave or refuse it. That procedural framework was
burdensome and, importantly, also unclear.
- The
applicant submitted that the domestic law should instead create a
universally binding regulatory framework governing the provision of
legal-aid services in the context of preparation of cassation
appeals. Ideally, such a framework would provide that the time-limit
for lodging a cassation appeal did not start to run until the
legal-aid lawyer had been appointed. Such a possibility existed in
Polish law in respect of constitutional complaints and should also be
applied to cassation proceedings.
- The
applicant referred to the Court’s finding of a violation of the
Convention in the case of Siałkowska v. Poland,
no. 8932/05, 22 March 2007. She emphasised that when making
its finding the Court relied on the fact that the domestic law had
failed to regulate the provision of legal aid in the context of
cassation proceedings with the requisite clarity. The same lack of
clarity characterised the provision of legal aid in proceedings
before the administrative courts. In the present cases,
the applicant had not been able to comply with the requirements for
preparing and lodging cassation appeals within the time frame
provided for in law.
- The
Government reiterated that 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 leading ruling of the
Supreme Court given in September 2000. That court had held that a
lawyer assigned to a case under the 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 further submitted that in both the instant cases the
regional court had granted legal aid to the applicant. The lawyers
had subsequently examined the cases and given detailed and
well reasoned legal opinions explaining why, in their view,
there were no legal grounds on which to prepare cassation appeals
against the judgments of the regional court. There had been no
indication that the lawyers had been negligent in their handling of
the applicant’s cases. They had informed the court, the Bar
Association and the applicant of the reasons for their refusals.
Hence, the State had properly discharged its obligation to provide
legal aid to the applicant.
- 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 uncritically their clients’
instructions and wishes. Hence, the lawyers’ refusals to appeal
had served the purpose of securing the proper administration of
justice by the Supreme Administrative Court.
- The
Government further argued that after the lawyers’ refusals the
applicant could have lodged cassation appeals with requests for leave
to submit the appeals out of time, provided for by section 87 of
the Law on the Procedure before Administrative Courts. The
established practice and case-law of the administrative courts
provided that a protracted examination of the motion for the grant of
legal aid constituted a basis on which retrospective leave to submit
a cassation appeal out of time could be granted.
- They
finally argued that in any event the proceedings before the Supreme
Administrative Court instituted by a cassation appeal were of an
extraordinary character. Hence, the restrictions on the right of
access to that court as applied in the applicant’s cases had
served a legitimate aim and had not been disproportionate.
2. The Court’s assessment
(a) General observations
- 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; Zapadka v. Poland, no. 2619/05,
§§ 57 61, 15 December 2009, and Subicka
v. Poland, referred to above, § 40). It adopts those
principles for the purposes of the instant case.
-
The same question arises in the context of the present case as that
examined by the Court in the cases referred to above, namely whether
as a result of refusals to prepare cassation appeals against the
judgments of the Gdańsk Regional Administrative Court the
applicant was deprived of access to the Supreme Administrative Court.
- The
Court observes that it has already dealt with this question in the
context of criminal as well as civil procedure before the Polish
courts.
- As
far as criminal procedure 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 (the Supreme
Court, decision II KZ 16/08 of 20 February 2002). 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). Subsequently,
in 2008 the Supreme Court also stated that the strand of the case-law
based on that approach was correct as providing adequate guarantees
to the defendant by indicating in an unequivocal way the date on
which the time limit started to run.
- 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, a legal-aid
lawyer’s refusal to prepare it did 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
rather rare 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).
- In
so far as procedure before the administrative courts is concerned,
the Court first observes that where a party to proceedings is
represented by a lawyer, the procedural time-limits set by the Act on
Procedure before Administrative Courts start to run on the date of
the service of judicial decisions on the lawyer. 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, would expire.
- The
situation is significantly different where a party does not have
legal representation before the Regional Administrative Court, 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 Administrative Court provides that the
time-limit for lodging a cassation appeal starts to run from the date
on which the judgment of the Regional Administrative Court has been
served on the non-represented party. The administrative courts have
repeatedly held that his or her request for legal aid does not affect
the running of the time limit (see Relevant domestic law above).
However, they have acknowledged that a party who was subsequently
granted legal aid was put in a difficult position, because at the
time of service the time limit had already started to run. A
lawyer subsequently assigned to the case had therefore less time to
examine the case and decide, still within the time-limit, whether a
cassation appeal offered prospects of success and to prepare an
appeal. This may lead to a situation where lawyers subsequently
assigned to the case only learned about their appointments after the
time limit for lodging the cassation appeal had expired.
- The
Supreme Administrative Court has, on numerous occasions, addressed
this problem. As a result, a body of case-law has developed to the
effect that in situations where a legal-aid lawyer has been appointed
after the time-limit for lodging a cassation appeal had expired and
he or she is willing to prepare it, the administrative courts could
grant leave for submitting a cassation appeal out of time. Under the
case law of the Supreme Administrative Court the day on which
the impediment for lodging the cassation appeal ceased to exist is
defined as the day on which the lawyer has had a
genuine possibility to prepare it. Thus, the seven day
time limit begins to run only after the legal-aid lawyer
has had sufficient time to study the file.
- The
Court further observes that a cassation appeal must, in any event be
lodged, together with a request for retrospective leave to appeal out
of time, within thirty days from the day on which the party was
informed of a legal aid lawyer’s assignment to the case
(see Relevant domestic law above). The Court is of the
opinion that this jurisprudential approach resulted from the
administrative courts’ concern about the difficulties
encountered by legally-aided parties and can be said to be compatible
with Convention standards as regards ensuring fair access to the
cassation procedure. However, this approach does not address
situations where a lawyer refuses to seek retrospective leave to
lodge a cassation appeal after the expiry of the time limit (see
Subicka v. Poland, referred to above, §§ 47048).
(b) Application of these considerations to
the circumstances of the case
(i) The first set of proceedings
- Turning
to the circumstances of the present case, the Court observes that the
judgment of 22 February 2006 was served on the applicant on 10 March
2006. Accordingly, the thirty-day time limit for lodging a
cassation appeal was to expire on 10 April 2006. On 25 April 2006 the
applicant was informed about the assignment of a legal-aid lawyer to
her case. Hence, the thirty–day time limit for lodging a
request for leave to lodge a cassation appeal out of time started to
run on that date. On 5 May 2006 that lawyer informed the applicant of
his refusal to prepare a cassation appeal.
- The
Court is of the view that, in order for the legal framework
regulating the lodging of cassation appeals to be compatible with the
Convention standards, the case-law of the Supreme Administrative
Court summarised above should also be applicable to situations where
after a legal-aid lawyer’s refusal to prepare a cassation
appeal the party wishes to have recourse to the services of another
lawyer. In this connection, the Court notes that on 5 May 2005 the
applicant still had twenty days within which to avail herself of the
possibility of seeking leave to appeal out of time by way of a
privately hired lawyer. It cannot therefore be said that she was put
in a position where her effective access to a court was restricted in
breach of Article 6 § 1 of the Convention (see Smyk v.
Poland, referred to above, § 63 64).
- The
Court accordingly upholds the Government’s preliminary
objection.
- There
was therefore no breach of this provision in respect of the first set
of proceedings.
(ii) The second set of proceedings
- The
Court notes that the judgment of 11 February 2006 was served on
the applicant on 5 March 2006. The time limit for lodging a
cassation appeal was therefore to expire on 5 April 2006. On 25 March
2006 the court was informed about the assignment of a legal-aid
lawyer to her case. It is not in dispute between the parties that the
applicant was informed thereof shortly afterwards. It was open to the
applicant within thirty days from the latter date to seek leave to
appeal out of time.
- However,
the Court notes that the applicable domestic regulations do not make
it obligatory for legal-aid lawyers to inform legally aided
parties of their refusal to prepare cassation appeals. In the present
case, the legal aid lawyer informed the court of her refusal,
but failed to do the same in respect of the applicant. As a result,
the applicant was ultimately informed of the refusal on 6 July
2006, long after she could have sought leave to appeal out of time.
- The
applicant was thereby deprived of the possibility of bringing her
case to the Supreme Court, either with the assistance of a
legally aid lawyer or by a privately hired lawyer.
- The
Court accordingly dismisses the Government’s preliminary
objection.
- There
has therefore been a violation of Article 6 § 1 of the
Convention.
(iii) The third set of proceedings
- The
judgments given by the Gdańsk Regional Administrative Court on
25 May 2005 were served on the applicant on 6 July 2005. The
applicant was informed of the legal-aid lawyer’s assignment to
her case by a letter of 28 July 2005. It was this date which marked
the beginning of the thirty day period within which a motion for
leave to appeal out of time could be filed. The court and the
applicant were informed of the lawyer’s refusal on 10 August
2005.
- The
Court notes that on that latter date the applicant still had eighteen
days within which to avail herself of the possibility of seeking
leave to appeal out of time, as referred to above (see paragraph 60;
compare and contrast with Siałkowska, referred to above,
§§ 114 117, where the applicant had only
three days left, mutatis mutandis).
- It
cannot therefore be said that she was put in a position where her
effective access to a court was restricted in breach of Article 6
§ 1 of the Convention. The Court therefore upholds the
Government’s preliminary objection.
- There
was therefore no violation of this provision.
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that the administrative 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, 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.
Switzerland, 12 July 1988, §§ 45-46, Series A
no. 140, and García Ruiz v. Spain [GC],
no. 30544/96, ECHR 1999-I, § 28).
- 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.
IV. 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 sought compensation for pecuniary damage in the amount of
442 euros (EUR) and non pecuniary damage in the amount of
5,000 euros (EUR).
- The
Government submitted that in so far as the applicant’s claims
related to alleged pecuniary damage, she had failed to adduce any
evidence to show that she had suffered any actual loss. As to
non-pecuniary damage, the Government submitted that the amount
claimed by the applicant was excessive.
- The
Court is of the view that it has not been duly substantiated that the
applicant sustained pecuniary damage as a result of the violation of
her right of access to a court. However, 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.
B. Costs and expenses
- The
applicant, who was granted legal aid for the purposes of the
proceedings before the Court, did not submit a claim for
reimbursement of legal costs and expenses.
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
- Decides unanimously to join the applications;
- Joins unanimously to the merits the
Government’s preliminary objection concerning exhaustion of
domestic remedies by way of seeking leave to appeal out of time;
3. Declares unanimously admissible the applicant’s
complaint concerning access to the Supreme Administrative Court and
the remainder of the application inadmissible;
- Holds by six votes to one that there has been no
violation of Article 6 § 1 of the Convention in respect of the
first and third sets of administrative proceedings and upholds
the Government’s above-mentioned preliminary objection;
- Holds unanimously that there has been a
violation of Article 6 § 1 of the Convention in
respect of the second set of administrative proceedings and dismisses
the Government’s above-mentioned preliminary objection;
- Holds unanimously
(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;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 21 June 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 separate opinion of Judge Mijović
is annexed to this judgment.
N.B.
T.L.E.
PARTLY DISSENTING OPINION OF JUDGE MIJOVIĆ
As
emphasised in my previous
concurring/dissenting opinions in eight 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 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 both civil and administrative
proceedings. That is the reason I voted against the majority’s
decision to hold that there has been no violation of Article 6 §
1 of the Convention in respect of the first and third sets of
administrative proceedings in this applicant’s case.
To
avoid repetition, I refer to the detailed reasoning of those
opinions.
