FOURTH SECTION
CASE OF
SZUBERT v. POLAND
(Application no.
22183/06)
JUDGMENT
STRASBOURG
5 July 2012
This
judgment is final but it may be subject to editorial revision.
In the case of Szubert v. Poland,
The European Court of Human Rights (Fourth Section), sitting as
a Committee composed of:
Päivi Hirvelä, President,
Ledi Bianku,
Zdravka Kalaydjieva, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 14 June 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an
application (no. 22183/06) 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 Tadeusz Szubert
(“the applicant”), on 25 May 2006.
The Polish Government (“the Government”) were
represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of
Foreign Affairs.
On 29 November 2010
the application was communicated to the Government.
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 1964 and lives in Płock.
On 30 May 2004 the applicant was arrested. Two
days later, on 1 June 2004 the Gostynin District Court decided to remand him in
custody.
By a judgment of 27 June 2005 the Płock Regional
Court found the applicant guilty of manslaughter and other offences and sentenced
him to 25 years’ imprisonment. On 3 November 2005 the Warsaw Court of
Appeal upheld the first-instance judgment.
On an unspecified later date the court granted
the applicant’s request to assign a legal-aid lawyer to the case for the
purposes of filing a cassation appeal with the Supreme Court.
In a letter of 6 February 2006 the applicant’s
legal-aid lawyer informed the Warsaw Court of Appeal that she had found no
grounds on which to lodge a cassation appeal.
By a letter of 7 February 2006 the Registry of
the Warsaw Court of Appeal forwarded the legal-aid lawyer’s statement to the
applicant. The letter read as follows:
“The Registry of the Warsaw Court of Appeal ... forwards,
enclosed, a copy of a letter of your legal-aid lawyer, for your information.
Please be informed that the time-limit for lodging a cassation appeal expires
on 13 February 2006.”
This Warsaw Court’s of Appeal letter, together
with the legal-aid lawyer’s letter of 6 February 2006, were served on the
applicant on an unspecified date after 7 February 2006.
II. RELEVANT DOMESTIC LAW AND PRACTICE
The relevant domestic law and practice
concerning the procedure for lodging cassation appeals in criminal cases 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, 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 ON ACCOUNT OF DENIAL OF ACCESS TO THE SUPREME COURT
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. This complaint falls to be examined
under Article 6 § 1 taken together with Article 6 § 3 (c) of the
Convention. Those provisions, in so far as relevant, read as follows:
“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 Court recalls that the Government has
already relied on the same arguments in the case of Dombrowski v. Poland
(no. 9566/10, judgment of 18 October 2011). In this case, the Court rejected
the Government’s objection, considering that in order to comply with the exhaustion
requirement set out in Article 35 § 1 of the Convention the applicant should
not have been required to embark on further attempts to obtain legal assistance
or to seek retrospective leave to lodge a cassation appeal out of time (see §§
17-20 and §§ 26-28). The Court adopts these
findings and conclusions for the purposes of the instant case. Accordingly, it
rejects the Government’s objection based on non-exhaustion of domestic
remedies.
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.
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, § 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 the area
of effective access to the Supreme Court in the context of criminal proceedings
(Kulikowski v. Poland, no. 18353/03,
Antonicelli v. Poland, no. 2815/05, 19 May 2009; Arciński
v. Poland, no. 41373/04, 15 September 2009).
In the present case the court informed the
applicant about the legal‑aid lawyer’s refusal by a letter of 7 February
2006. In the court’s letter accompanying that refusal the applicant was
informed that the time-limit for lodging a cassation in his case would expire
on 13 February 2006, while in the light of the Supreme Court’s case-law (see § 13)
it began to run anew on the date on which this letter was served on the
applicant, to expire only thirty days later. The failure to provide the
applicant with correct information in this respect, 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.
The Court observes that the procedural framework
governing the availability 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 the fairness requirement, 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A. Alleged unfairness of the proceedings
The applicant
complained, relying on Article 6 of the Convention, that his criminal
trial had been unfair in that the courts had wrongly assessed evidence and
erred in establishing the facts, as a result of which he had been wrongfully
convicted.
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).
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.
B. Alleged violation of Article 5 § 4 of the
Convention
The applicant complained that he had not been
served with the detention order of 1 June 2004, as a result of which he had
been deprived of a possibility to appeal against it, in breach of Article 5 § 4
of the Convention.
However, the Court
notes that the applicant failed to provide any evidence to support his
complaint. 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
The applicant claimed 200,000 euros (EUR) in
respect of pecuniary and non-pecuniary damage.
The Government submitted that the claims should
be rejected as exorbitant and inconsistent with the Court’s established
case-law.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, it awards the applicant EUR 2,000 in
respect of non‑pecuniary damage (see Dombrowski v. Poland, cited
above, § 35).
B. Costs and expenses
The applicant did not make any claim for 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 UNANIMOUSLY
1. Declares the
complaint concerning the denial of access to the Supreme Court admissible and
the remainder of the application inadmissible;
2. Holds that
there has been a violation of Article 6 § 1 in conjunction with Article 6
§ 3 (c) of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months, EUR 2,000 (two thousand euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable, to be converted into the currency
of the respondent State 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 5 July 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Päivi
Hirvelä
Deputy Registrar President
