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FOURTH
SECTION
CASE OF TERESA
KOWALCZYK v. POLAND
(Application
no. 23987/05)
JUDGMENT
STRASBOURG
11 October
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Teresa Kowalczyk v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva, judges,
and
Lawrence Early, 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. 23987/05)
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, Ms Teresa Kowalczyk (“the applicant”),
on 8 March 2005.
2. The
applicant was represented by Mr K. Dobrowolski, a lawyer practising
in Zdunska Wola. The Polish Government
(“the Government”) were represented by their Agent, Mr J.
Wołąsiewicz of the Ministry of Foreign Affairs.
- On
25 March 2008 the President of the Fourth Section
decided to give notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Zduńska
Wola.
- The
applicant was made redundant and was dismissed by her employer, a
State-owned company, in January 2001, together with a number of other
persons.
- By
a decision of 4 January 2001, the Zduńska Wola Municipality
granted her a pre-retirement benefit in an amount equivalent to 120
per cent of a basic unemployment benefit as applicable at that time.
Other persons made redundant at the same time received identical
benefits.
- Before
the applicant had been made redundant, a number of meetings were
organised by the local labour administration in Zduńska Wola to
address the situation of the employees who had been dismissed, all of
whom had worked in the same factory. There has been uncertainty at
that time as to how the legal provisions of the 1994 Employment and
Combating Unemployment Act (ustawa o zatrudnieniu i
przeciwdziałaniu bezrobociu) concerning the determination of
the amount of the pre-retirement benefit for persons living in
municipalities with structural unemployment should be interpreted.
The applicant maintains that she and other dismissed persons were
repeatedly told by various officials that in their situation it was
useless to appeal to the administrative courts regarding the amount
of the benefit. Subsequently, six of the applicant’s former
co-workers appealed, but the applicant did not. In August and
September 2002 the Supreme Administrative Court quashed decisions
awarding 120 per cent to those employees and remitted the cases.
- Shortly
afterwards, on 21 October 2002, the Supreme Administrative Court
sitting as a full bench of seven judges and having regard to serious
difficulties arising in connection with the determination of the
amounts of pre-retirement benefit due to persons dismissed within the
framework of large-scale redundancies in municipalities affected by
structural unemployment, issued a resolution aimed at clarifying
these difficulties and resolving the jurisprudential conflicts. The
court held that the dismissed persons were entitled to 160 per cent
of the basic benefit only when they had been made redundant by the
same employer in the context of redundancies exceeding 100 persons;
not when the number of dismissed persons exceeded 100 in a given
municipality as a whole, as the competent authorities had tended to
interpret this provision previously.
- Subsequently,
decisions were given by the local administration that the six
appellants were entitled to 160 per cent of the basic unemployment
benefit.
- On
3 June 2003 the applicant requested the competent municipal authority
to amend the decision given in her case on 4 January 2001 (see
paragraph 6 above). She complained that she had obtained much lower
unemployment benefit than her colleagues who had been dismissed from
the same factory and who had been in an identical factual and legal
situation.
- On
25 June 2003 the Zduńska Wola Starosta refused to amend the
contested decision. It held that in the light of the 2002 resolution
of the Supreme Administrative Court the relevant provisions gave the
applicant a right to obtain only 120 per cent of the basic benefit.
The second instance authority upheld this decision. The
applicant appealed to the Łódź Regional
Administrative Court. She reiterated her complaint that she had been
denied a pre-retirement benefit in the amount obtained by her
colleagues who had been in an identical legal and factual situation.
- The
Łódź Regional Administrative Court, in its judgment
of 7 July 2004, dismissed the applicant’s appeal, finding
that the impugned decision of the appellate authority was in
compliance with the applicable laws. It referred to the Supreme
Administrative Court’s resolution given in October 2002. It
held that under that resolution it had become clear that a higher
pre-retirement benefit was available only to persons who had lost
their employment as a result of dismissals of over one hundred
persons by one employer during a period of three months preceding the
party’s dismissal; not when the number of persons dismissed by
all employers in a given municipality throughout the same period had
exceeded one hundred.
-
On 27 July 2004 the applicant requested legal aid for the
purposes of lodging a cassation appeal with the Supreme
Administrative Court. On 24 August 2004 the court granted her
request. On 17 September 2004 the Regional Bar assigned an
advocate to the applicant’s case. On 29 September the
applicant gave him a power of attorney.
- The
judgment with its written grounds was served on the applicant on 14
September 2004. It was on that date that the thirty-day time-limit
for lodging a cassation appeal with the Supreme Administrative Court
started to run.
- By
a letter of 6 October 2004 the assigned lawyer informed the
applicant that he had found no grounds on which a cassation appeal
could be filed in her case and he refused to prepare such an appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
-
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.
- 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.
- 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 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).
- 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
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
20. The
applicant complained that as a result of the legal-aid lawyer’s
refusal to prepare and lodge a cassation appeal with the Supreme
Administrative Court she had been denied access to that court. She
referred to Article 6 § 1 of the Convention which, in
so far as relevant, reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust
relevant domestic remedies. She could have complained to the local
Bar Association under section 28 of the Bar Act about the lawyer’s
alleged negligence. She should also have brought a civil action for
compensation against the lawyer concerned. The Government were of the
view that such an action was an effective remedy where the lawyer,
either appointed under the legal-aid scheme or privately hired, was
negligent in carrying out his or her duties regarding legal
representation. It had also been open to the applicant to request
leave to lodge a cassation appeal with the Supreme Administrative
Court out of time.
- The
applicant did not submit her comments on the admissibility of the
case.
- In
so far as the Government referred to the compensatory remedies and
argued that the application was incompatible ratione personae
with the provisions of the Convention, the Court reiterates that it
has already examined and rejected such arguments in previous cases
(e.g. Siałkowska v. Poland, no. 8932/05, § 59,
22 March 2007; Subicka v. Poland, referred to above,
§ 28, 14 September 2010). It accordingly dismisses
these objections.
- In
so far as the Government argued that it had been open to the
applicant to request leave to appeal out of time, the Court considers
that such objection is closely linked to the substance of the
applicant’s complaint under Article 6 § 1. Its
examination should therefore be joined to the merits of the case.
- The
Court concludes therefore that the application is not manifestly
ill founded within the meaning of Article 35 § 3
of the Convention. No other ground for declaring it inadmissible has
been established. It must therefore be declared admissible.
B. Merits
- The
applicant submitted that she had never been
informed about her procedural rights in connection with the lodging
of a cassation appeal with the Supreme Administrative Court.
- The
Government argued that the fact that the legal-aid lawyer had refused
to prepare the cassation appeal in the applicant’s case had not
had any negative impact on her situation. She had been informed
thereof early enough to be able to take steps to have her case
examined by the Supreme Administrative Court. The applicant had never
argued that she had been informed of the refusal after the expiry of
the time-limit for doing so. There had been no indication of any
negligence on the part of the legal-aid lawyer in the applicant’s
case. His legal opinion had been duly and extensively reasoned. By
allowing the applicant’s request for legal aid the State had
complied with its obligations to ensure the applicant’s access
to court in the present case.
- 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, cited above; Smyk v. Poland, no. 8958/04,
§§ 54-59, 28 July 2009; Zapadka v. Poland,
no. 2619/05, §§ 57 61, 15 December
2009, and Subicka v. Poland, referred to above, § 40).
It adopts those principles for the purposes of the instant case.
-
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
as a result of the refusal of a legal-aid lawyer to prepare a
cassation appeal against the judgment of the Regional Administrative
Court the applicant was deprived of access to the Supreme
Administrative Court in a manner contrary to the Convention.
- 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.
- 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 was 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.
- 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 an appeal 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).
- 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.
- 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.
- 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 and
practice above). However, they have 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 may 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.
- The
Supreme Administrative Court has, on numerous occasions, addressed
this problem. As a result, a body of case-law has 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 an appeal, the administrative courts
could grant leave to submit a cassation appeal out of time. Under the
case law of the Supreme Administrative Court the day on which
the impediment to lodging the cassation appeal ceased to exist is
defined as the day on which the lawyer has had a
genuine possibility to prepare an appeal. 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 further observes that a cassation appeal must, in any event be
lodged, together with a request for retrospective leave to appeal out
of time, within thirty days from the day on which the party was
informed of a legal aid lawyer’s assignment to the case
(see relevant domestic law and practice above). The Court
is of the opinion 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 Convention standards as regards ensuring fair access to the
cassation procedure. However, this approach does not address
situations where a lawyer refuses to seek retrospective leave to
lodge a cassation appeal after the expiry of the time limit (see
Subicka v. Poland, referred to above, §§ 47 48).
- Turning
to the circumstances of the present case, the Court observes that the
judgment of 7 July 2004 with its written grounds was served on
the applicant on 14 September 2004. Accordingly, the thirty-day
time limit for lodging a cassation appeal was to expire on
15 October 2004. The legal-aid lawyer was assigned to the
applicant’s case on 17 September 2004. On 29 September
2004 the applicant gave him a power of attorney. Subsequently, he
informed the applicant of his refusal to prepare a cassation appeal
by a letter of 6 October 2004.
- The
Court is of the view that, in order for the legal framework
regulating the lodging of cassation appeals to be compatible with the
Convention standards, the case-law of the Supreme Administrative
Court summarised above should also be applicable to situations where
after a legal-aid lawyer’s refusal to prepare a cassation
appeal the party wishes to have recourse to the services of another
lawyer. In this connection, the Court notes that on 6 October 2004
the applicant still had nine days within which to avail herself of
the possibility of seeking leave to appeal out of time by way of a
privately hired lawyer. It cannot therefore be said that she was put
in a position where her effective access to a court was restricted in
breach of Article 6 § 1 of the Convention (see Smyk
v. Poland, referred to above, § 63 64).
- The
Court accordingly finds that it is not required to examine the
Government’s preliminary objection since the issue whether or
not the applicant could seek leave to appeal out of time does not
arise in the circumstances as set out.
- There
has therefore been no breach of this provision.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained of a violation of Article 6
§ 1 of the Convention, referring to the fact that her
former co-workers had received higher pre-retirement benefits than
hers and that the administrative courts had approved this difference
in treatment.
- The Court has already held, in the context of
Article 6 § 1 of the Convention, that the Contracting
States have an obligation to organise their legal system so as to
avoid the adoption of discordant judgments (see Vrioni and Others
v. Albania, no. 2141/03, § 58, 24 March
2009, and Mullai and Others v. Albania, no. 9074/07,
§ 86, 23 March 2010) and that conflicting decisions in
similar cases stemming from the same court which, in addition, is the
court of last resort in the matter, may, in the absence of a
mechanism which ensures consistency, breach the principle of legal
certainty inherent in that Article (see, for example, Beian
v. Romania
(no. 1),
no. 30658/05, §§ 36-39, ECHR 2007-XIII;
Tudor Tudor v. Romania, no. 21911/03, § 29,
24 March 2009; and Iordan Iordanov and Others v. Bulgaria,
no. 23530/02, §§ 47 53, 2 July
2009).
- In
particular, the Court has held that once a solution has been adopted
by a State to regulate the collective dismissal of hundreds of
persons from State-owned companies, it must be implemented with
reasonable clarity and coherence in order to avoid, in so far as
possible, uncertainty and ambiguity for the persons concerned by the
measures of implementation (see Ştefănică and
Others v. Romania, no. 38155/02,
§ 32, 2 November 2010).
- In
the present case the Court notes, firstly, that the applicant, who
had been dismissed within the framework of large-scale redundancies,
failed to follow the example of her work colleagues who appealed to
the administrative court against the decisions granting them lower
amounts of pre-retirement benefit. They ultimately won their cases.
Hence, the applicant failed to have recourse to the normal remedy
available against the administrative decisions for the purposes of
judicial review of their lawfulness. It was only after decisions in
her colleagues’ cases had been given in their favour that she
requested that her case be re-examined.
It is
further noted that the applicant did not lodge a cassation appeal
with the Supreme Administrative Court against the judgment of the
Łódź Regional Administrative Court of 7 July
2004 (see paragraph 12 above).
However,
even assuming that the applicant exhausted domestic remedies, the
Court is of the view that this part of the application is in any
event inadmissible for the following reasons.
- Prior
to October 2002 the provisions of the Employment and Combating
Unemployment Act concerning entitlement to special pre-retirement
benefit due to persons made redundant by employers situated in
municipalities affected by structural unemployment had given rise to
difficulties in its application. The Supreme Administrative Court,
sitting as a bench of seven judges, acknowledged these difficulties
and considered that it was necessary to adopt a resolution of that
court, aimed at resolving the difficulties and indicating to the
administrative authorities, to the administrative courts, and to the
same court sitting in its usual three-judge formation, the manner in
which that provision should be applied. Such a resolution was given
on 21 October 2002. Hence, the Supreme Administrative Court
discharged the task expected of higher courts in a judicial system,
by resolving conflicts of jurisprudence and ensuring uniform
application of domestic law.
- Subsequently, the applicant’s case was
re-examined by the administrative authorities and ultimately by the
Łódź Regional Administrative Court. In its judgment
of 4 July 2004 that court referred to the difficulties
concerning the interpretation of the relevant provisions of the 1994
Act and to the above-mentioned resolution of the Supreme
Administrative Court. It held that under that resolution it had
become clear that a higher pre-retirement benefit was available only
to persons who had lost their employment as a result of dismissals of
over one hundred persons by one employer during a period of three
months prior to the applicant’s dismissal, not by all employers
in a given municipality. That court further observed that the more
advantageous decisions obtained by the applicant’s colleagues
had been given by the Supreme Administrative court prior to the
resolution of the full bench of that court.
- In
these circumstances, the Court is satisfied that the domestic courts
had acknowledged the existence of the difficulties arising in
connection with the interpretation of the statute applied in the
applicant’s case and took necessary and sufficient measures to
address these difficulties (see Schwarzkopf and Taussik
v. the Czech Republic (dec.), no. 42162/02, 2 December
2008). The Supreme Administrative Court adopted a resolution and the
Regional Administrative Court in its later judgment followed the
solution recommended by the former.
-
It follows that this complaint is manifestly ill founded and
must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
FOR THESE REASONS, THE COURT
- Joins unanimously to the merits the Government’s
objection regarding the applicant’s failure to seek leave to
appeal out of time;
- Declares unanimously admissible the applicant’s
complaint concerning lack of access to a court and the remainder of
the application inadmissible;
- Holds by six votes to one that there has been no
violation of Article 6 § 1 of the Convention;
- Holds unanimously that in the circumstances of
the case it is not required to examine the Government’s
above-mentioned objection.
Done in English, and notified in writing on 11 October 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judge Mijović
is annexed to this judgment.
N.B.
T.L.E.
DISSENTING OPINION OF JUDGE MIJOVIĆ
As
emphasised in my previous
concurring/dissenting opinions in nine recent cases,
and in the joint dissenting opinion in Smyk v. Poland,
no. 8954/04, 28 July 2009, I see the problem of the refusal
of lawyers appointed under legal-aid schemes to represent
legally aided persons on the ground that the claim has no
reasonable prospects of success as the general one, related not only
to criminal, but also to civil and administrative proceedings. To
avoid repetition, I refer to the detailed reasoning of those
opinions.
