FOURTH SECTION

CASE OF SZPARAG v. POLAND

(Application no. 17656/06)

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. 17656/06) 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 Zbigniew Szparag (“the applicant”), on 12 April 2006.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. .
3.  On 22 June 2009 the President of the Fourth Section decided to give notice of 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).
4.  In accordance with Protocol No. 14, the application was allocated to a Committee.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
A. Criminal proceedings against the applicant
5.  The applicant was born in 1976. He is currently serving a prison sentence in Wołów prison.
6.  On 23 August 2005 the Kłodzko District Court convicted the applicant of sexual abuse of a minor and sentenced him to five years' imprisonment. The applicant appealed.
7.  On 20 February 2006 the Świdnica Regional Court upheld the first‑instance judgment. On a later unknown date the applicant requested that a legal‑aid lawyer be assigned to the case to prepare a cassation appeal. On 10 April 2006 the court allowed his request. The court's decision was served on the applicant on 20 April 2006.
8.  By a letter to the court dated 11 May 2006 the lawyer refused to prepare a cassation appeal, finding no grounds for it. This letter was subsequently forwarded by the court to the applicant.
9.  On 6 June 2006 the applicant requested the court to assign a new legal‑aid lawyer to the case. In letters to the applicant dated 14 June and 10 July 2006 the court refused to do so. The court referred to the legal-aid lawyer's refusal of 11 May 2006.
10.  Neither in the letter accompanying the lawyer's refusal of 11 May 2005 nor in its later letters the court informed the applicant of his further procedural rights.
B. Other proceedings
11.  On an unknown date in 2005 the applicant instituted criminal proceedings alleging that correspondence sent by him to courts, prosecutors and other authorities had been destroyed by prison officers. On 22 August 2005 the Kłodzko District Prosecutor refused to institute proceedings in the case. On 30 November 2005 the Kłodzko District Court upheld the decision of the Kłodzko District Prosecutor.
12.  On an unknown date in 2006 the applicant, who was serving a prison sentence, filed a request for temporary leave. On 6 July 2006 the Gdańsk District Court dismissed his request. On 15 September 2006 the Gdańsk Regional Court dismissed his appeal as unfounded.
13.  On a later date in 2006 the applicant requested the penitentiary judge to grant him another temporary leave. On 9 October 2006 the judge refused his request. On 21 December 2006 the Gdańsk Regional Court dismissed his appeal as unfounded.
14.  In 2005 the applicant requested that criminal proceedings be instituted against a judge examining his case, alleging that he had destroyed certain documents from his case file. On 6 December 2006 the Kłodzko District Prosecutor refused the request. On 11 February 2008 the Nysa District Court upheld this decision.
15.  In criminal proceedings concerning an assault against the applicant by his fellow-prisoner, on 29 June 2007 the Kwidzyn District Court convicted the accused and sentenced him to 10 months' imprisonment. The court also obliged him to pay the applicant damages in the amount of PLN 8,000.

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 Kulikowski v. Poland, no. 18353/03, §§ 19-27, ECHR 2009‑... (extracts) and Antonicelli v. Poland, no. 2815/05, §§ 14-22, 19 May 2009).
17.  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).
18.  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 § 1 IN CONJUNCTION WITH ARTICLE 6 § 3 (c ) OF THE CONVENTION
19.  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
20.   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. Had a relevant time-limit already expired by the time when a privately hired lawyer lodged such an appeal, it would have been open to the applicant to request a retrospective leave to appeal out of time.
21.  The applicant disagreed.
22.  The Court notes that legal representation was mandatory for the purposes of preparing a cassation appeal. However, in the applicant's case the courts, by granting the applicant legal aid, acknowledged his lack of financial resources. In such circumstances, the Court considers that the applicant should not therefore have been required to embark on further attempts to obtain legal assistance with a view to lodging a cassation appeal for the purposes of exhaustion of domestic remedies (see Seliwiak v. Poland, no. 3818/04, § 47, 21 July 2009). In so far as the Government argued that a privately hired lawyer could have subsequently sought retrospective leave to appeal out of time, the Court considers that the Government's preliminary objection under this head is closely linked to the merits of the applicant's complaint. Accordingly, it decides to join its examination to the merits of the case.
23.  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
24.  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 submitted the legal-aid lawyer was independent in the exercise of her obligations. Independence of legal profession was crucial for effective functioning of fair administration of justice. It was not the State's role to oblige a lawyer, whether appointed under legal-aid scheme or not, to lodge a remedy contrary to his or her opinion regarding the prospects of success for such a remedy. The responsibility of the State was to ensure a requisite balance between, on the one hand, effective enjoyment of access to justice and the independence of the legal profession on the other. They referred to the Court's judgment in the case of Siałkowska v. Poland, no. 8932/05, § 112,22 March 2007).
In the present case the legal‑aid lawyer had acted with requisite diligence. She had prepared her opinion together with grounds for it within a short time. The courts examined the applicant's requests to be granted legal assistance under legal‑aid scheme twice and found nothing to reproach the legal-aid lawyer for.
25.  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,  judgment of 10 June 1996, 1996-III, p. 755, § 52, and , 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, 2009‑... (extracts); Antonicelli v. Poland, no. 2815/05,  May 2009; Arciński v. Poland, no. 41373/04,  September 2009). It adopts those principles for the purposes of the instant case.
26.  In the present case the court informed the applicant about the legal-aid lawyer's refusal by a letter of unknown date. In its further letters the court refused to appoint a new lawyer under legal‑aid scheme. The court referred to the legal‑aid lawyer's refusal of 11 May 2006.
The court's letters did not contain any information concerning the applicant's procedural rights. In particular, the court did not inform him that under the case-law of the Supreme Court, adopted in 2002, the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was served with the legal-aid lawyer's refusal. 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. In so far as the Government argued that the applicant should have hired a lawyer and that the lawyer could have requested retrospective leave to appeal out of time, the Court notes that the applicant had no way of knowing when the time-limit started to run.
The Court observes 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, 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”.
27.  Accordingly, having regard to the above deficiency, there has been a violation of Article 6 § 1 in conjunction with of the Convention.

II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
28.  The applicant complained under Article 6 of the Convention about the outcome and unfairness of all sets of proceedings, summarised in paragraphs 10 – 14 above.
29.  However, even assuming that this provision of the Convention is applicable to the proceedings concerned, 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  [GC], no. 30544/96, § 28, ECHR 1999-I, with further references).
30.  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.
31.  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
32.  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.”
33.  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.
34.  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.
35.  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.   to the  the Government's preliminary objection based on non-exhaustion of domestic remedies;

2.  Declares admissible the applicant's complaint concerning lack of access to a court and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c);

4.  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 5 Octobre 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Giovanni Bonello
	Deputy Registrar	President