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FOURTH
SECTION
CASE OF JAN ZAWADZKI v. POLAND
(Application
no. 648/02)
JUDGMENT
STRASBOURG
6 July
2010
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 Jan Zawadzki v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 15 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 648/02) 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 Jan
Zawadzki (“the applicant”), on 24 August 2001.
- 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
13 July 2009 the President of the Fourth Section decided to give
notice of this complaint to the Government. Under Article 29 § 3
of the Convention it was decided to examine the admissibility and
merits of the case at the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1958 and lives in Hajnówka.
- On
23 August 2000 the Bielsko Podlaskie District Court convicted the
applicant of theft and sentenced him to 2 years'
imprisonment. On 12 December 2000 the
Białystok Regional Court upheld the first instance
judgment.
- On
12 January 2001 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 to the applicant dated 7 February 2001 the Białystok
Regional Court informed him that the legal aid lawyer had found
no grounds on which to prepare a cassation appeal. The applicant was
not informed of the further procedural steps available to him to
lodge a cassation appeal.
- In
reply to the applicant's subsequent three queries as to what his
procedural situation was and whether there was any possibility for
him to pursue the cassation proceedings, in particular by having his
own draft of a cassation appeal signed by another legal-aid lawyer,
on 19 February, 23 and 29 May 2001 the Regional Court
stated that it was not for the court to oblige a legal aid
lawyer to prepare a cassation appeal if he or she had refused to do
so and that it was impossible for a lawyer to sign a cassation appeal
drafted by the defendant.
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).
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
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 did not
submit their comments.
- 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 applicant was served with the lawyer's refusal
on an unspecified date after 7 February 2001. The court's note
accompanying that refusal did not contain any information concerning
his procedural rights. 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.
The
Court notes in this connection 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). 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 § 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.”
- 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
- 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 6 July 2010, 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 concurring opinion of Judge Mijović
is annexed to this judgment.
N.B.
T.L.E.
CONCURRING OPINION OF JUDGE MIJOVIĆ
As
was emphasised in
my previous concurring opinions in three recent cases (Kulikowski
v. Poland, no18353/03,
18 August 2009, Antonicelli
v. Poland, no2815/05,
18 August 2009 and Arciński
v. Poland, 41373/04, 15 September 2009), as well
as in the joint dissenting opinion in Smyk v. Poland,
no8958/04, 28 July 2009, I see the problem of the
refusal of lawyers appointed under a legal-aid scheme 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 both civil and administrative proceedings.
For the purposes of the instant case, I would simply refer to the
detailed reasoning of those opinions.
