FOURTH SECTION

CASE OF TOMCZYKOWSKI v. POLAND

(Application no. 34164/05)

JUDGMENT

STRASBOURG

17 April 2012

This judgment is final. It may be subject to editorial revision.

In the case of Tomczykowski v. Poland,
The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:
	George Nicolaou, President,
	Ledi Bianku,
	Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 27 March 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 34164/05) 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 Bogdan Tomczykowski (“the applicant”), on 16 September 2005.
2.  The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.
3.  On 28 June 2010 the application was communicated to the Government.
4.  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
5.  The applicant was born in 1962 and lives in Lublin.
6.  By a judgment of 19 November 2003 the Lublin Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision of 25 March 2003 by which the second-instance authority had refused to acknowledge that the applicant’s ailment was of an occupational character.
7.  This judgment was served on the applicant on 27 January 2004.
8.  On 27 February 2004 the applicant requested to be granted legal aid.
9.  On an unspecified date the Lublin Bar Association refused to assign a lawyer to the case. Subsequently, on 26 March 2004 it allowed the applicant’s request after the Supreme Administrative Court had instructed it that it had no right to refuse.
10.  On 19 November 2004 the lawyer assigned to the case had effective access to the case-file.  On 1 December 2004 the lawyer lodged a cassation appeal together with a request for retrospective leave to appeal out of time with the Lublin Administrative Court.
11.  By a decision of 1 April 2005 that court rejected the cassation appeal. It noted that the seven-day time-limit for lodging a request for leave to appeal out of time had started, at the latest and if counted in a manner most advantageous to the applicant, on the day when the legal-aid lawyer had had an opportunity to have effective access to the case file. In the present case that time-limit had started to run on 19 November 2004, while the request had been lodged with the court on 1 December 2004. It had therefore to be rejected for failure to comply with the time-limit.
12.  The lawyer appealed. On 1 April 2005 the Supreme Administrative Court upheld the contested decision and shared the legal view expressed by the regional court.
II.  RELEVANT DOMESTIC LAW AND PRACTICE
13.  The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 12‑21, 14 September 2010.
14.  In particular, in its decision no. II FZ 651/07 of 18 January 2008 the Supreme Administrative Court 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 by a legally-aided applicant could be admitted for examination.
15.  When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legally‑aided party to submit the appeal together with a request for leave to appeal out of time made under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007).
16.  In a number of its recent decisions the Supreme Administrative Court acknowledged the difficulties which legally-aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. It analysed relevant case‑law of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legal‑aid scheme and by privately hired lawyers. The court held that the time-limit for a legally-aided party started to run only on the day when a legal-aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case. The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal-aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legal‑aid lawyer (I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009).
THE LAW
ALLEGED VIOLATION OF ARTICLE 6 §1 OF THE CONVENTION
A.  Admissibility
17.  The applicant complained that he had been denied access to the Supreme Administrative Court because it had rejected his cassation appeal. He referred to Article 6 § 1 which, in so far as relevant, provides as follows;
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
18.  The Court notes that the application 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
19.  The applicant complained that he had been denied access to the Supreme Court.
20.  The Court has already had occasion to set out at length the relevant principles derived from its case-law in this area (Siałkowska v. Poland, no. 8932/05, §§ 99-107, 22 March 2007; Smyk v. Poland, no. 8958/04, §§ 54-59, 28 July 2009; Zapadka v. Poland, no. 2619/05, §§ 57‑61, 15 December 2009). It adopts those principles for the purposes of the instant case.
21.   The same question arises in the context of the present case as that examined by the Court in the cases referred to above, namely whether the applicant was deprived of access to the Supreme Administrative Court.
22.  The Court observes that it has already dealt with this question in the context of criminal as well as civil procedure before the Polish courts.
23.  As far as criminal procedure 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 (the Supreme Court, decision II KZ 16/08 of 20 February 2002). 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). Subsequently, in 2008 the Supreme Court also stated that the strand of the case‑law based on that approach was correct as providing adequate guarantees to the defendant by indicating in an unequivocal way the date on which the time‑limit started to run.
24.  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, a legal-aid lawyer’s refusal to prepare it did 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 rather rare 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).
25.  In so far as procedure before the administrative courts is concerned, the Court first observes that where a party to proceedings is represented by a lawyer, the procedural time-limits set by the Act on Procedure before Administrative Courts start to run on the date of the service of judicial decisions on the lawyer. 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, would expire.
26.  The situation is significantly different where a party does not have legal representation before the Regional Administrative Court, as in the present case, and is granted legal aid only after the second‑instance judgment has been given and served on him or her.
27.  The case‑law of the Supreme Administrative Court provides that the time-limit for lodging a cassation appeal starts to run from the date on which the judgment of the Regional Administrative Court has been served on the non-represented party. The administrative courts have repeatedly held that his or her request for legal aid does not affect the running of the time‑limit (see Relevant domestic law above). However, they have also acknowledged that a party who was subsequently granted legal aid was put in a difficult position, because at the time of service the time‑limit had already started to run. A lawyer subsequently assigned to the case had therefore less time to examine the case and decide, still within the time-limit, whether a cassation appeal offered prospects of success and to prepare an appeal. This might lead to a situation where lawyers subsequently assigned to the case only learned about their appointments after the time‑limit for lodging the cassation appeal had expired.
28.  The Supreme Administrative Court has, on numerous occasions, addressed this problem. As a result, a body of case-law has been developed to the effect that in situations where a legal-aid lawyer has been appointed after the time-limit for lodging a cassation appeal had expired and he or she is willing to prepare it, the administrative courts could grant leave for submitting a cassation appeal out of time. Under the case‑law of the Supreme Administrative Court the day on which the impediment for lodging the cassation appeal ceased to exist is defined as the day on which the lawyer has had a genuine possibility to prepare it. Thus, the seven‑day time‑limit begins to run only after the legal‑aid lawyer has had sufficient time to study the file.
The Court notes that this jurisprudential approach resulted from the administrative courts’ concern about the difficulties encountered by legally-aided parties and can be said to be compatible with the Convention standards as regards ensuring fair access to the cassation procedure (see also Subicka v. Poland (no. 2), nos. 34043/05 and 15792/06, § 10, 21 June 2011). The Court is of the view, in line with its case-law referred to above and also in line with the many judgments of the Polish administrative courts summarised above (see paragraphs 15‑16 above) that the determination of the time-limit for legally aided parties should be made in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under legal aid scheme and by privately hired lawyers.
29.  Turning to the circumstances of the present case, the Court observes, firstly, that the judgment of the regional administrative court was served on the applicant on 27 January 2004. Subsequently the applicant submitted his request for legal aid thirty days later, only on 27 February 2004. It has not been shown or even argued that this delay had been justified by any special circumstances for which the applicant could not be held responsible, or that he could not have been aware of the time‑limit within which a cassation appeal had had to be submitted to the court.   Having regard to the delay with which the applicant availed herself of his procedural right, the Court is of the view that he failed to display diligence which should normally be expected from a party to proceedings concerning one’s civil rights and obligations (see Pretto and Others v. Italy, judgment of 8 December 1983, Series A no. 71, pp. 14-15, § 33; Bąkowska v. Poland, no. 33539/02, §§ 53‑34, 12 January 2010, mutatis mutandis).
30.  Furthermore, the Court observes that the legal-aid lawyer submitted the cassation appeal together with the request for leave to appeal out of time on 1 December 2004, after the expiry of the seven-day time-limit, the beginning of which was determined by the administrative courts in the manner most advantageous for the applicant and with due regard being had to the necessity of alleviating the situation of legally-aided parties arising from the difficulties to examine the case and prepare a cassation appeal within the time-limits set out by the applicable procedural law.
31.  The Court therefore concludes, having regard to the circumstances of the case seen as a whole, that in the particular circumstances of the present case there has been no violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Declares the application admissible;

2.  Holds that there has been no violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 17 April 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	George Nicolaou
	Deputy Registrar	President