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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
- 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.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
- On
28 June 2010 the application was communicated to the Government.
- 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 1962 and lives in Lublin.
- 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.
- This
judgment was served on the applicant on 27 January 2004.
- On
27 February 2004 the applicant requested to be granted legal aid.
- 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.
- 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.
- 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.
- 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
- 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 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).
- 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
- 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 ...”
- 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
- The
applicant complained that he had been denied access to the Supreme
Court.
- 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.
-
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.
- 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 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.
- 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).
- 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 and served on him or
her.
- 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.
- 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.
- 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).
- 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.
- 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
- Declares the application admissible;
- 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
