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FOURTH
SECTION
CASE OF URBANOWICZ v. POLAND
(Application
no. 40459/05)
JUDGMENT
STRASBOURG
5
October 2010
This
judgment is final but it may be subject to editorial revision.
In the case of Urbanowicz v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a
Committee composed of:
Giovanni Bonello, President,
Lech
Garlicki,
Ján Šikuta, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 14 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
-
The case originated in an application (no. 648/02) 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 Damian Urbanowicz (“the applicant”), on
10 November 2005.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant complained, in particular, that he had been deprived of
access to the Supreme Court.
- On
21 September 2009 the President of the Fourth Section decided to give
notice of this complaint to the Government. Under Article 29 § 3
of the Convention it was decided to examine the admissibility and
merits of the case at the same time.
- 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
- The
applicant was born in 1981.
- On
28 January 2004 the Radom Regional Court convicted the applicant of
murder and sentenced him to 25 years' imprisonment
as a recidivist offender. The applicant
appealed. On 14 April 2005 the Lublin Court
of Appeal upheld the first-instance judgment. On the same day the
applicant's lawyer, who represented him under the legal-aid scheme,
requested the court to prepare written grounds for the judgment of
the appellate court and stated that this request should be regarded
as an announcement of an upcoming cassation appeal against it.
- On
25 April 2005 the same lawyer requested the court to release him from
the obligation to represent the applicant since the applicant had
announced that he had lost confidence in him.
- On
19 May 2005 the applicant lodged with the Lublin Court of Appeal a
motion to have a new legal-aid lawyer assigned to the case. On
13 June 2005 the court allowed his request, assigned Mr J. Ż.
to represent the applicant and ordered the registry to serve the
written grounds of the judgment of 14 April 2005 on the lawyer.
- The
lawyer was served with the grounds on 20 June 2005.
- In
a letter to the applicant, dated 14 July 2005 the Lublin Court of
Appeal informed the applicant that Mr J. Ż. had found no grounds
on which to prepare a cassation appeal. The relevant passage of the
letter read as follows:
“I inform you that the
legal-aid lawyer assigned to prepare a cassation appeal against the
... judgment of 14 April 3005, advocate Mr
J. Ż. submitted a letter to the court that he had found no
grounds, stipulated in Article 523 of the Code of Criminal Procedure,
on which to prepare a cassation appeal in the present case.
Accordingly, I am obliged to inform you that Article 84 of that Code
confers on a defence counsel a right to issue such an opinion and
that no regulations are available which would empower the court to
compel a legal-aid lawyer to prepare a cassation appeal ... Therefore
the Court of appeal will abstain from taking any further measures in
the present case, having found that the convicted person's defence
rights were properly guaranteed through legal-aid assistance having
been granted in 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 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. It was also open to him
to request that another legal-aid lawyer be assigned to the case. Had
the time limit for lodging it already expired by the time when
this request would have been granted, it would have been open to the
applicant to request a retrospective leave to appeal out of time.
- The
applicant disagreed.
- 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 the applicant should have requested that
another legal-aid lawyer be assigned to represent him with a view to
preparing a cassation appeal, the Court observes, having regard to
the case-law of the Supreme Court (see paragraph 15 above), that a
refusal of a legal-aid lawyer to prepare a cassation appeal was not a
valid ground on which the courts would assign another lawyer to the
case. In so far as the Government argued that the applicant should
have requested 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.
- 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
- 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 refrained from submitting their comments on the merits of
the applicant's complaint.
- 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 court informed the applicant about the legal-aid
lawyer's refusal by a letter of 14 July 2005. The court's letter
accompanying that refusal did not contain any information concerning
his 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 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, § 70;
Antonicelli
v. Poland,
cited above, § 45; 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”.
- 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 and the
Government's objection based on non-exhaustion of domestic remedies
(see § 19 above) must accordingly be rejected.
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 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.
- 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.
- 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
- Joins to the merits the Government's preliminary
objection based on non-exhaustion of domestic remedies;
- Declares admissible the applicant's 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 of the Convention in conjunction with Article 6 § 3
(c);
- 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 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni Bonello
Deputy
Registrar President
