FOURTH SECTION

CASE OF STANISZEWSKI v. POLAND

(Application no. 28157/08)

JUDGMENT

STRASBOURG

5 October 2010

This judgment is final but it may be subject to editorial revision.

In the case of Staniszewski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Fatoş AracıDeputy ,
Having deliberated in private on 14 September 2010;
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 28157/08) 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 Staniszewski (“the applicant”), on 3 June 2008.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  The applicant complained that he had been deprived of access to the Supreme Court.
4.  On 11 May 2009 the President of the Fourth Section decided to communicate the application to the Government. It was also decided that the Committee would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention).
5.  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 rejects it.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
6.  On 14 December 2006 the applicant lodged with the Kłodzko District Court an action against his former employer, concerning his social insurance entitlements.
7.  On 26 April 2007 the Kłodzko District Court dismissed the applicant's action.
8.  On 15 May 2007 the applicant appealed. On 23 October 2007 the Świdnica Regional Court dismissed his appeal.
9.  On 5 November 2007 the applicant was served with the judgment with its written grounds. The court informed him at the same time that he had sixty days as of the date of the service of the judgment (until 5 January 2008) to lodge a cassation appeal.
10.  In his letter of 28 December 2007, received by the court on 31 December 2007, the applicant requested the court to appoint a legal‑aid lawyer for the purposes of lodging a cassation appeal.
11.  On 9 January 2008 the applicant was granted legal aid. In a letter of the same date the court requested the Wałbrzych Regional Bar Association to assign a legal-aid lawyer to the case. This letter was served on the addressee on 14 January 2008. A legal-aid lawyer was assigned to the case on the same day.
12.  In his fax of 25 January 2008 to the Świdnica Regional Court the applicant requested the court to extend the statutory time limit for lodging the cassation appeal in his case. He explained that he had been trying to find a lawyer; to no avail. Finally, he stated that he was “delighted with the legal-aid lawyer assigned to his case, who was superb”.
13.  In a letter of 24 January 2007 to the Świdnica Regional Court, the legal-aid lawyer stated that she had found no points of law on which a cassation appeal in the applicant's case could be based and submitted a legal opinion as to why a cassation appeal did not, in her view, offer any prospects of success. A copy of that letter was sent to the applicant on the next day.
14.  In his letter of 30 January 2008, served on the Świdnica Regional Court on 1 February 2008, the applicant requested that the case be re‑examined by that court. The applicant also applied to have the power of attorney of the defendant enterprise invalidated for the purpose of safeguarding the equality of arms in the proceedings as he intended to present his case to the court without legal representation.
15.  By a letter of 28 February 2008 the President of the Labour Division of the Świdnica Regional Court informed the applicant that there were no grounds on which to envisage a re-examination of the case in which a final and valid judicial decision had been given.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
16.  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 Siałkowska v. Poland, no. 8932/05, March 2007; Staroszczyk v. Poland, no. 59519/00,  March 2007; Smyk v. Poland, no. 8958/04, 28 July 2009; Zapadka v. Poland, no. 2619/05, 15 December 2009; Bąkowska v. Poland, no. 33539/02, 12 January 2010.
17.  On 5 February 2005 amendments to the Code of Civil Procedure, adopted on 22 December 2004 (Ustawa o zmianie ustawy Kodeks postępowania cywilnego oraz ustawy Prawo o ustroju sądów powszechnych), entered into force. the amended text of Article 398 1 § 5, the time‑limit for lodging a cassation appeal with the Supreme Court was extended from thirty to sixty days.
18.  The Supreme Court has repeatedly 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 could be admitted for examination (21 April 1997, II CZ 38/97; 27 September 2001, II UZ 51/01). In a further series of decisions the Supreme Court considered that it would be unfair for the legally-aided party to be penalised for the fact that legal‑aid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within a period of thirty days counted from the day of service of the judgment on the party. The parties waiting for legal-aid services cannot be held at fault for shortcomings in the system. A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it. A request to appeal out of time should therefore be submitted within seven days from the date on which the legal‑aid lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal (4 March 2005, II UZ 72/04; 27 June 2000, I CZ 62/00), or from the date when the lawyer was informed that he had been assigned to the case by the local Bar Association (11 October 2001, IV CZ 163/01; 17 November 1998, II UZ 122/98; 11 October 2001, IV CZ 163/01);
19.  In a resolution adopted by a bench of seven judges of the Supreme Court on 17 February 2009 (III CZP 117/08) that court acknowledged that there had been discrepancies in the manner in which the beginning of the seven-day time limit for submitting an application for leave to appeal out of time by legally-assisted parties had been determined. The court was of the view that applications for leave served the purpose of making access to the Supreme Court for legally-aided parties genuine and effective. Hence, the beginning of the time‑limit could not be determined in a mechanical manner in all cases. The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal.
THE LAW
20.  The applicant complained under Article 6 § 1 of the Convention that he had been denied access to the Supreme Court.
Article 6 § 1 reads, in so far as relevant:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A.  Admissibility
21.  The Court notes that the application 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
1.	The parties' arguments
22.   The applicant submitted that he had been unfairly deprived of access to the Supreme Court, in breach of the requirements of Article 6 § 1 of the Convention.
23.  The Government first submitted that Article 6 of the Convention did not explicitly guarantee a right to obtain legal assistance under legal‑aid scheme in all civil cases. In any event, in the present case the applicant had received such assistance free of charge and his request for legal aid had been processed with all requisite diligence.
24.  They further argued that the applicant's case had been examined at two levels of jurisdiction. Neither the Convention nor domestic law guaranteed a right to have a civil case heard at three levels of jurisdiction. The right to a court was not absolute and could therefore be subject to certain limitations, in so far as they did not impair the very essence of that right. In particular, the criteria of admissibility of appeals to be lodged with the highest courts could be strict and the procedure more formal than that before the lower courts, without the requirements of Article 6 of the Convention being breached thereby. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism.
25.  They further referred to the resolution of the Supreme Court given in September 2000. That court had held that a lawyer assigned to a case under a 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 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 their clients' instructions and wishes uncritically and lodging remedies against their better judgment. Nor was it the role of the State to compel lawyers to do so. Hence, the lawyer's refusal had served the purpose of securing the proper administration of justice by the Supreme Court, including ensuring that the case load of that court would not be unreasonably increased by unmeritorious cassation appeals.
26.  The Government further submitted that the applicant had failed to act with requisite diligence because he had submitted his request for assistance of a legal-aid lawyer only several days before expiry of two‑month time‑limit. He had therefore contributed by his own conduct to the difficulties concerning access to the Supreme Court in his case.
2. The Court's assessment
27.  The Court has already had occasion to set out at length the relevant principles derived from its case-law in this area (Staroszczyk v. Poland, Siałkowska v. Poland, Smyk v. Poland, Bąkowska v. Poland, Zapadka v. Poland, referred to above). It adopts those principles for the purposes of the instant case.
28.  The Court further observes that where a party to civil proceedings is represented by a lawyer, the procedural time-limits set by the Code of Civil Procedure start to run on the date of the service of judicial decisions on the lawyer (see, e.g., Smyk v. Poland, referred to above, § 63).
29.  Where a party does not have legal representation, 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 Court provides that the time‑limit for lodging a cassation appeal starts to run from the date on which the judgment of the appellate court has been served on that party.
30.  The Court observes that a party who is subsequently granted legal aid is thereby put in a difficult position because at the time of service the time-limit has already started to run. The Polish courts, including the Supreme Court, have repeatedly held that his or her request for legal aid does not affect the running of the time-limit. A legal-aid lawyer subsequently assigned to the case has therefore less time to examine the case and decide, still within the time‑limit, whether a cassation appeal offers prospects of success and to prepare it.
31.  The Court further notes that the applicable domestic regulations do not the time-frame within which the applicant should be informed about the refusal to prepare a cassation appeal (see Siałkowska, cited above, § 114, Smyk v. Poland, cited above, § 60). The Court has already found that the way in which those regulations were applied in practice were capable of leaving legally-aided parties with no realistic opportunity of having their cases brought to the Supreme Court within the time-limit provided for by law (Siałkowska v. Poland, above, no. 8932/05, §§ 11 - 155). In the present case the second-instance judgment, together with its written grounds, was served on the applicant on 5 November 2007. It was on that date that the sixty-day time-limit for lodging the cassation appeal started to run.
32.  However, the Court observes that subsequently the applicant formulated his request for legal aid by a letter dated 28 December 2006. This letter was served on the court on 31 December 2007, only five days before the two-month time limit was to expire. It has not been shown that this delay had been justified by any circumstances for which the applicant could not be held responsible. The applicant had not substantiated his submission made to the domestic courts and concerning his alleged unsuccessful efforts to find a privately hired lawyer for the purposes of lodging of a cassation appeal. Nor has he shown that he could not have been aware of the time‑limit within which a cassation appeal had had to be submitted to the court. The time‑limit was to expire on 5 January 2008. The court, having received his request, examined it speedily and granted it on 9 January 2008.
33.  Having regard to the delay with which the applicant availed himself of his procedural right, the Court is of the view that he failed to display diligence which should normally be expected from a party to civil proceedings (see , judgment of 8 December 1983, Series A no. 71, pp. 14-15, § 33; Bąkowska v. Poland, referred to above, § 53-54).
34.  The Court therefore concludes that in the particular circumstances of the present case there has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 5 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Giovanni Bonello	Deputy Registrar	President