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FOURTH
SECTION
CASE OF WŁODARCZYK v. POLAND
(Application
no. 16286/07)
JUDGMENT
STRASBOURG
11 October
2011
This
judgment is final but it may be subject to editorial revision.
In the case of Włodarczyk v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
George Nicolaou, President,
Lech
Garlicki,
Vincent A. De Gaetano, judges,
and
Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 20 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 16286/07)
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 Jerzy Włodarczyk (“the applicant”),
on 20 March 2007.
2. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
29 June 2009 the President of the Fourth Section
decided to give notice of the application to the Government.
- In
accordance with Protocol No. 14, the application was
allocated to a Committee.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and lives in Ozorkow.
- On
20 September 2005 the Łódź Regional Court convicted
the applicant of several counts of robbery and membership of an
organised criminal gang and sentenced him to five
years and eight months’ imprisonment.
- On
21 February 2006 the Łódź
Court of Appeal quashed the first instance judgment and remitted
the case. On 21 July 2006 the Łódź Regional
Court again convicted the applicant and sentenced him
to five years and eight months’ imprisonment.
8. On 9 January 2007 the Łódź
Court of Appeal upheld the first instance judgment. On 24
January 2007 the appellate court sent its judgment, together with its
written grounds, to the applicant. It was served on him on
10 February 2007.
- Meanwhile,
on 7 February 2007 the court assigned a legal aid lawyer to the
case for the purposes of lodging a cassation appeal before the
Supreme Court.
- On
14 February 2007 the applicant requested the court to assign a new
legal-aid lawyer to prepare a cassation appeal.
- In
a letter to the court dated 16 February 2007 the lawyer assigned
to the case informed the court that he had found no grounds on which
to draft a cassation appeal in the applicant’s case. The court
forwarded the letter to the applicant. It was served on him on
26 February 2007. The court did not inform the applicant of his
further procedural rights.
- On
13 March 2007 the Łódź
Court of Appeal refused the applicant’s request to assign a new
legal-aid lawyer to the case.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- 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).
- 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).
- 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
- 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
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- 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 had refused to prepare a cassation appeal in his case and
he had been left in uncertainty as to his legal position.
- The
Government did not submit their comments.
- 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, Benham
v. the United Kingdom, judgment of 10 June 1996,
Reports of Judgments and Decisions 1996-III, p. 755,
§ 52, and Bobek
v. Poland, 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, ECHR
2009 ... (extracts); Antonicelli
v. Poland, no. 2815/05,
19 May 2009; Arciński
v. Poland, no. 41373/04,
15 September 2009). It adopts those principles for the
purposes of the instant case.
- In
the present case the applicant was served with the legal aid
lawyer’s refusal on 26 February 2007. The court’s note
accompanying that refusal did not contain any information concerning
his procedural rights. 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 and to request leave to appeal out of
time.
The
Court notes in this connection 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, § 70;
Antonicelli
v. Poland,
cited above, § 45). 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”.
- Accordingly,
having regard to the above deficiency, there has been a violation of
Article 6 § 1 in conjunction with Article 6
§ 3 (c) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained, relying on Article 6 of the Convention, that
the proceedings had been unfair in that the courts had wrongly
assessed evidence, erred in establishing the facts of the case and
incorrectly applied applicable domestic law.
- However,
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 García Ruiz v. Spain [GC],
no. 30544/96, § 28, ECHR 1999-I, with further
references).
- 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.
- 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
- 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.”
- The
applicant claimed 100,000 euros (EUR) in
respect of pecuniary and non pecuniary damage. He did not make
any claim for reimbursement of costs and expenses.
- The
Government submitted that his claim was excessive and that there had
been no causal link between the circumstances of the case and the
pecuniary damage alleged by the applicant.
- 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, it 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.
- 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
- Declares admissible the complaint concerning
lack of access to a court and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 § 1 in conjunction with Article 6 § 3 of the Convention;
- 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;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı George Nicolaou
Deputy
Registrar President
