FOURTH SECTION

CASE OF KRAMARZ v. POLAND

(Application no. 34851/07)

JUDGMENT

STRASBOURG

5 October 2010

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

In the case of ,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Giovanni Bonello, President,
	Lech Garlicki,
	Ján Šikuta, judges,
and Fatoş AracıDeputy Section Registrar,
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. 34851/07) 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 Józef Kramarz (“the applicant”), on 7 June 2004.
2.  The applicant, who had been granted legal aid, was represented by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  The applicant complained, in particular, that he had been deprived of access to the Supreme Court.
4.  On 5 March 2009 the President of the Fourth Section decided to communicate the complaint concerning the alleged denial of access to the Supreme Court to the Government. It was also decided that the Court 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.  The applicant was born in 1953 and lives in Dębica.
7.  The applicant was a party to civil proceedings concerning division of co-ownership of a certain plot of land. The proceedings were instituted in 2001. On 12 February 2003 the Lwówek Slaski District Court awarded the plot to a certain M.K. and ordered that  to the applicant.
8.  On 9 October 2003 the Jelenia Góra Regional Court partly amended the first‑instance decision increasing the amount awarded to the applicant and dismissed the remainder of his appeal.
9.  On 14 October 2003 the applicant requested to be served with written grounds to that judgment. On 12 December 2003 the court served him with them and the thirty‑day time‑limit for lodging of a cassation appeal started to run.
10.  By a letter of 12 December 2003, served on the court on 18 December 2003, the applicant requested that a legal‑aid lawyer be assigned to the case to prepare a cassation complaint. On the same day the court requested the applicant to submit a statement of his financial situation in order to be able to examine his request.
11.  On 6 January 2004 the Jelenia Góra Regional Court granted the applicant's request for legal aid. On 13 January 2004 the Wałbrzych Bar Association assigned a legal‑aid lawyer to the case.
12.  On 16 and 20 January 2004 the applicant and the lawyer had a telephone conversation. In a letter to the lawyer dated 20 January 2004 the applicant explained in a detailed manner the legal context of the case and the reasons for which he was of the view that a cassation complaint offered prospects of success.
13.  In a letter to the court dated 22 January 2004 the lawyer explained in detail why she saw no grounds on which to prepare a cassation complaint in the applicant's case.
14.  On 3 March 2004 the legal-aid lawyer sent a copy of his opinion to the applicant. It was served on the applicant on 8 March 2004. On 8 March 2004 also the court sent the lawyer's opinion to the applicant.
15.  On 30 August 2007 the applicant requested the Lwówek Slaski District Court to exempt him from costs of making copies of documents in the case-file. On 6 September 2007 the Lwówek Slaski District Court dismissed the applicant's request as unfounded. The court established that the applicant owned property of 4,16 ha and the proceedings had ended in 2003 so he had enough time to collect founds for that purpose. On 12 October 2007 the Jelenia Góra Regional Court dismissed the applicant's interlocutory appeal.
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.  In particular, 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;
18.  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
I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
19.  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
20. The Government submitted that the applicant had failed to exhaust relevant domestic remedies. She should have brought a civil action for compensation against the legal‑aid lawyer. They were of the view that a civil action was an effective remedy where a lawyer, either legal aid or privately hired, was negligent in carrying out his or her duties regarding legal representation in judicial proceedings. They also referred to a complaint to the local Bar Association under Article 28 of the Bar Act.
The applicant disagreed. He submitted that a complaint to the local bar could have been effective only in situations where a lawyer's refusal was given in circumstances allowing for doubts to arise as to the compatibility of that refusal with the ethical principles governing the exercise of the profession. No such doubts had arisen in the present case. For the same reason, the applicant could not possibly have sought civil compensation from the lawyer as the lawyer's conduct could not have been said to amount to tort.
21.   The Court observes that the remedies referred to by the Government were merely of a retrospective character. They could only, and if the applicant had been successful, have resulted either in the courts granting damages or in the Bar Association finding the lawyer at fault. Such retrospective measures alone were not sufficient to ensure effective access to a court competent to determine the applicant's civil rights and obligations. The Court therefore rejects the Government's objection (see Zapadka v. Poland, referred to above, § 50; Bąkowska v. Poland, referred to above, § 36).
22.  The Court further 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
1.	The parties' arguments
23.  The applicant submitted that the lawyer's refusal had made it impossible for the applicant to proceed further with his case. The Supreme Court had accepted, by way of a resolution given in 2000, that a legal aid lawyer could refuse to lodge a cassation appeal. However, the existing regulations did not properly address a situation of a legally‑assisted party whose lawyer declined to prepare a cassation appeal. This legislative lacuna had negatively affected the applicant's position. The applicant had been informed of the legal-aid lawyer's refusal after the time-limit had already expired.
In so far as the Government referred to the possibility of seeking retrospective leave to appeal out of time, the applicant emphasised that there had been serious divergences in the manner in which the courts had handled such requests, both as to the determination of event triggering the running of the time-limit de novo and as to the granting or refusal of such requests. These divergences had been reviewed and acknowledged by the Supreme Court in its resolution of 17 February 2009 (see paragraph 18 above). The relevant request had therefore not offered any reasonably foreseeable prospects of success to the applicant as the application by the courts of the relevant provisions of the Code of Civil Procedure at the material time had been haphazard. It had only been the resolution of February 2009 which offered to the courts guidance as to the proper manner of handling such requests, in a way which would have respected the procedural fairness and the parties' rights to avail themselves of legal assistance under the legal‑aid scheme. The applicant referred to the Court's judgments in the cases of Siałkowska v. Poland, no. 8932/05,  March 2007; Del Sol v. France, no. 46800/99, ECHR 2002‑II and Gnahoré v. France, no. 40031/98, ECHR 2000‑IX and stressed that the State were obliged to display diligence so as to secure to persons amenable to the law the genuine and effective enjoyment of the rights guaranteed under Article 6 of the Convention.
24.  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.
25.  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.
26.  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.
27.  The Government further submitted the case‑law of the Polish civil courts indicated that retrospective leave to appeal out of time could be granted where legal aid for the purposes of lodging a cassation appeal had been given, but the legal‑aid lawyer could not comply with all the relevant formalities within that time-limit. Had the applicant requested such leave, it was likely that her request would have been granted.
2. The Court's assessment
28.  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.
29.  The Court first 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 Smyk v. Poland, referred to above, § 63). 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, is to expire.
30.  The situation is significantly different where, as in the present case, a party 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 the non-represented party. 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 courts have repeatedly held that his or her request for legal aid does not affect the running of the time‑limit. A 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). In the present case the second-instance judgment, together with its written grounds, was served on the applicant on 12 December 2003. It was on that date that the thirty-day time-limit for lodging the cassation appeal started to run. Subsequently, the applicant's request for legal aid, served on the court on 18 December 2003, was granted on 6 January 2004. However, the decision on the grant of legal aid did not affect the running of the time-limit, which was to expire on 12 January 2004. The Court further observes that the legal-aid lawyer sent his refusal to the applicant on 3 March 2004 and on 8 March 2004 the court also sent a copy of that refusal to the applicant. The applicant was therefore left with no realistic opportunity of having his case brought to and argued before the Supreme Court by the legal-aid lawyer within the time‑limit provided for by law (see Siałkowska v. Poland, no. 8932/05, §§ 115‑116,22 March 2007).
32.  The Court further notes that it has already dealt with the question of whether legally-aided parties finding themselves in such situation were left with no other procedural possibilities to have cassation appeals lodged in the context of criminal as well as civil procedure. As far as the former 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. 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).
33.  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, the service on the party of information that a legal‑aid lawyer refused to prepare the appeal does 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 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, 28 July 2009).
34.  The Court further observes that the existing case-law only offers a solution to the situation where a legal-aid lawyer is ready to prepare a cassation appeal, but the deadline for doing so has already expired (see paragraph 17 above). The Government were unable to indicate any consistent domestic case-law addressing situations where, as in the applicant's case, the legal-aid lawyer refused to lodge a cassation appeal well after the original deadline had expired.
35.  This produces a situation of legal uncertainty for legally‑aided applicants as to whether after legal‑aid lawyer's refusal they had had any possibility to pursue the proceedings. In that context, it should be stressed that uncertainty – be it legislative, administrative or arising from practices applied by the authorities – is an important factor to be taken into account in assessing the State's conduct (see, among other authorities, no. 30658/05, § 33, ECHR 2007-... (extracts); Plechanow v. Poland, no. 22279/04, § 103, 7 July 2009). The Court is of the view that this uncertainty is sufficient for a finding of a violation of the applicant's right of access to court on account of the absence of clear rules governing the consequences of the legal-aid lawyer's refusal occurring after the deadline for lodging a cassation appeal had already expired.
36.  Having regard to the above considerations, the Court concludes that in the present case there has been a violation of Article 6 § 1 of the Convention.

II.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
37.  The applicant complained that the 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.
38.  T
39.  The applicant further complained that the outcome of the proceedings amounted to a breach of Article 1 of Protocol No. 1 to the Convention in that he was deprived of certain rights of pecuniary value.
The Court recalls that the deprivation of property referred to in the second sentence of the provision relied on by the applicant is primarily concerned with the formal expropriation of assets for public purposes and that a judicial decision on a claim as to which of two litigants is the owner of certain property according to the rules of private law can never be seen as constituting an unjustified State interference with the property rights of the losing party, as it is the very function of the courts to determine such disputes ( (dec.) 31138/96, 14.9.99, No. /, Dec. 4.7.1983, DR 33, p. 247[257]; and Nos. 8588/79 and 8589/79, Dec. 12.10.1982, D.R. 29, p. 64[82]). The same applies to proceedings, such as in the instant case, in which civil courts rule on the parties' private law obligations.
40.  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
41.  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
42.  The applicant claimed 200,000 euros (EUR) in respect of pecuniary and non-pecuniary damage.
43.  The Government did not submit their comments.
44.  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, having regard to awards made in similar cases against Poland, referred to above (see paragraph 16), it awards the applicant EUR 1,000 in respect of non-pecuniary damage.
B.  Costs and expenses
45.  The applicant also claimed EUR 3,000 as reimbursement of legal fees incurred in the proceedings before the Court and EUR 93 concerning costs borne in these proceedings.
46.  The Government did not comment.
47.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, the Court notes that the applicant sufficiently substantiated that most of these sums had been actually and necessarily incurred, by submitting relevant invoices and other evidence. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sum of EUR 3,093 covering legal fees, costs and expenses for the proceedings before the Court.
C.  Default interest
48.  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 applicant's complaint under Article 6 § 1 of the Convention concerning the right of access to court admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 6 § 1 of the Convention;

3.  Holds
(a)  that the respondent State is to pay the applicant the following amounts, to be converted into Polish zlotys at the rate applicable on the date of settlement:
(a)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  EUR 3,093 (three thousand and ninety-three euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(c)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts 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 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Giovanni Bonello	Deputy Registrar	President