FOURTH SECTION

CASE OF KOCUREK v. POLAND

(Application no. 20520/08)

JUDGMENT

STRASBOURG

26 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:
	Ján Šikuta, President,
	Lech Garlicki,
	Vincent Anthony de Gaetano, judges,
and Fatoş AracıDeputy Section Registrar,
Having deliberated in private on 5 October 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 20520/08) 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 Józef Kocurek (“the applicant”), on 8 April 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, in particular, that he had been deprived of access to the Supreme Court.
4.  On 21 September 2009 the President of the Fourth Section decided to communicate this complaint to the Supreme Court 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.  The applicant was born in 1951 and lives in Bielsko - Biała.
7.  On 8 June 2006 the Bielsko-Biała Social Security Board refused to grant the applicant a disability pension. On 20 March 2007 the Bielsko‑Biała Regional Court dismissed his appeal against that decision. On 9 October 2007 the Katowice Court of Appeal dismissed the applicant's further appeal. The judgment was served on the applicant on 15 November 2007 and two-month time-limit for lodging of a cassation appeal started to run on that date.
8.  On 9 November 2007 the applicant requested that a legal‑aid lawyer be assigned to the case for the purposes of lodging a cassation appeal with the Supreme Court. On 27 November 2007 the Katowice Court of Appeal granted his request for legal aid and requested the Katowice Bar Association to assign a lawyer to the case. Subsequently, as the first lawyer assigned by the Bar Association suffered from certain health problems at that time, on 23 January 2008 the Katowice Bar Association assigned another lawyer, Mr J.R., to the case. He was served with the letter informing him of the assignment on 28 January 2008.
9.  Subsequently the lawyer requested the Court of Appeal to serve on him its judgment of 9 October 2007. The judgment with the written grounds was served on him on 14 February 2008.
10.  In a letter to the applicant dated 29 February 2008 the lawyer explained in detail why he had found no grounds on which to prepare a cassation complaint in the case.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
11.  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, July 2009; Zapadka v. Poland, no. 2619/05, December 2009; Bąkowska v. Poland, no. 33539/02, 12 January 2010.
12.  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.
13.  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;
14.  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
15.  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
16.  The Government submitted that the applicant had failed to exhaust relevant domestic remedies. He 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.
17.   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).
18.  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
19.   The applicant submitted that he had been unfairly deprived of access to the Supreme Court.
20.  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.
21.  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.
22.  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.
23.  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
24.  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.
25.  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.
26.  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.
27.  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 15 November 2007. It was on that date that the sixty-day time-limit for lodging the cassation appeal started to run. Subsequently, the applicant's request for legal aid of 9 November 2007, was granted on 27 November 2007. However, the decision on the grant of legal aid did not affect the running of the time-limit, which was to expire on 15 January 2008. The Court further observes that the second legal-aid lawyer, who was assigned to the case after the first one had requested the court to release him from the obligation to represent the applicant, informed the applicant of his refusal by a letter of 29 February 2008. 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).
28.   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).
29.  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, no. 8958/04, §§ 63-65, 28 July 2009).
30.  The Court further observes that the existing case-law only offers a certain, albeit uncertain, 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 13 above).  The Government were unable to provide information on consistent and established judicial practice 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.
31.  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.
32.  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
33.  The applicant complained about the length and the outcome of the proceedings. He further complained, invoking Article 13 of the Convention, that he was deprived of effective remedies as all his appeals had been dismissed.
34.  In so far as the applicant complains about the outcome of the proceedings, 
35lodged a complaint about the excessive length of the proceedings under the 2004 Act on complaints about a breach of the right to a trial within a reasonable time. The Court has examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in Poland (see  (dec.) no. 24549/03, §§ 37-43).
36in the light of all the materials in its possession, and in so far as the matters complained of are within its competence or have not already been addressed in the context of the above finding of a breach of Article 6 § 1 of the Convention, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols (see also , no. 50224/99, § 77, 26 September 2006 and , judgment of 27 April 1988, Series A no. 131, p. 23, § 52).
37.  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
38.  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, costs and expenses
39.   The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. He did not submit his claims in respect of costs and expenses.
40.  The Government did not submit their comments.
41.  The Court, having regard to awards made in similar cases against Poland, referred to above (see paragraph 11), it awards the applicant EUR 1,000 in respect of non-pecuniary damage.
B.  Default interest
42.  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 application partially admissible;

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 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 on 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 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 26 October 2010, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ján Šikuta
	Deputy 	President