FOURTH SECTION

CASE OF JĘDRZEJCZAK v. POLAND

(Application no. 56334/08)

JUDGMENT

STRASBOURG

11 January 2011

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

In the case of Jędrzejczak v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	Ján Šikuta, President,
	Lech Garlicki,
	Vincent A. de Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 6 December 2010,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 56334/08) 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 Janusz Jędrzejczak (“the applicant”), on 14 November 2008.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On 7 September 2009 the President of the Fourth Section decided to give notice of the application to the Government.
4.  In accordance with Protocol No. 14, the application was allocated to a Committee.
THE FACTS
I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1958 and lives in Bialystok.
6.  In 2007 the applicant filed a motion for a disability pension with the Social Security Board. Subsequently, the Board found that he was not entitled to it.
7.  On 13 November 2007 the Białystok Regional Court refused to grant the pension to the applicant.
8.  On 7 May 2008 the Białystok Court of Appeal dismissed the applicant's appeal. The judgment was served on the applicant on 15 May 2008. By a decision of 27 May 2008 the Court of Appeal allowed the applicant's request for a legal-aid lawyer to be assigned to the case for the purposes of cassation proceedings.
9.  On 2 June 2008 a lawyer was assigned by the Regional Bar Council to represent the applicant. The lawyer was informed by the Bar at the same time that the time-limit for lodging a cassation appeal was to expire on 15 July 2008.
10.  In her letter to the court of 23 June 2008 the lawyer stated that she had found no points of law on which a cassation appeal could be based in the applicant's case.
11.  On 9 July 2008, upon the applicant's request, the Court of Appeal transmitted the lawyer's letter to him. The applicant filed a motion to be granted a second legal-aid lawyer. The motion was dismissed on 15 July 2008, the court finding that the applicant had already been granted a legal‑aid lawyer.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
12.   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, 22 March 2007; Staroszczyk v. Poland, no. 59519/00, 22 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.
13.  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. Under 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.
14.  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;
15.  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
16.  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
17.  The Court notes that the application 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
18.  The applicant submitted that he had been unfairly prevented from having his case brought before and examined by the Supreme Court.
19.  The Government, who were invited to submit observations on the case, did not do so.
20.   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.
21.  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.
22.  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.
23.  The Court further notes that the applicable domestic regulations do not specify 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 May 2008. 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 was granted on 27 May 2008. However, the decision on the grant of legal aid did not affect the running of the time‑limit, which was to expire on 15 July 2008. On 2 June 2008 a lawyer was assigned by the Regional Bar Council to represent the applicant. On 23 June 2008 the legal-aid lawyer informed the court that she had found no grounds on which to prepare a cassation appeal.
24.  The Court observes that, had the applicant been promptly informed of the lawyer's refusal, he would have still had three weeks before the expiry of the time-limit. However, it was only after sixteen days, on 9 July 2008, that the Court of Appeal transmitted the refusal to the applicant.
It further notes that under the domestic law applicable at the relevant time the legal‑aid lawyers were not obliged to inform also the represented party about their refusal to prepare a cassation appeal.
25.   The Court reiterates 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).
26.  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).
27.  In the present case, when the applicant was informed by the court about the legal-aid lawyer's refusal, the time‑limit for the submission of a cassation appeal to the Supreme Court was to expire in six days. Subsequently the applicant unsuccessfully requested that another legal-aid lawyer be assigned to the case. The Court is of the view that the authorities cannot be criticised for refusing to grant him assistance of a second legal‑aid lawyer. It has already found, in the context of criminal proceedings, that Article 6 of the Convention does not confer on the State an obligation to ensure assistance by successive legal-aid lawyers for the purposes of pursuing legal remedies which have already been found not to offer reasonable prospects of success (see Antonicelli v. Poland, § 43; Kulikowski v. Poland, § 68). It has also held that the same principle holds true in the context of civil cassation. To hold otherwise would result in imposing on the State, for the purposes of civil proceedings, a more far-reaching procedural obligation in respect of legal aid than that applicable to criminal cases. This would be incompatible with its case-law (see Del Sol v. France, cited above, § 20; Smyk v. Poland, cited above, § 61). However, the court's negative response was served on the applicant on 15 July 2008, the date on which the time-limit was to expire. In any event, even had the applicant not renewed his request for legal aid, he was informed of the legal‑aid lawyer's refusal only six days before the time-limit was to expire. Hence, he was left with so little time to have a cassation appeal prepared and lodged with the Supreme Court case as to be deprived of a realistic opportunity of having his case brought to and argued before that (compare and contrast with Smyk v. Poland, cited above, where after the refusal to assign a second legal‑aid lawyer to the case the applicant had twenty-four days left).
28.  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.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
29.  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
30.  The applicant claimed 10,000 euros (EUR) in respect of pecuniary and non‑pecuniary damage. The Government did not submit their comments.
31.  The Court, having regard to awards made in similar cases against Poland, referred to above (see paragraph 14), awards the applicant EUR 1,000 in respect of non-pecuniary damage.
B.  Default interest
32.  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 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, within three months 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;

4.  Dismisses the remainder of the applicant's claim for just satisfaction.
Done in English, and notified in writing on 11 January 2011, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Ján Šikuta
	Deputy Registrar	President