FIRST SECTION
DECISION
Application no. 11414/15
Janusz BUŁATOWICZ
against Poland
The European Court of Human Rights (First Section), sitting on 26 June 2018 as a Committee composed of:
Aleš Pejchal, President,
Krzysztof Wojtyczek,
Jovan Ilievski, judges,
and Abel Campos, Section Registrar,
Having regard to the above application lodged on 25 February 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Janusz Bułatowicz, is a Polish national who was born in 1949 and lives in Szczecin.
2. The Polish Government (“the Government”) were represented by their Agent, Ms Justyna Chrzanowska, of the Ministry of Foreign Affairs.
3. On 26 May 2015 the application was communicated to the Government.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Undisputed facts
5. On 22 July 2014 the Szczecin Regional Court dismissed an appeal lodged by the applicant against the Szczecin Prawobrzeże i Zachód District Court’s decision of 19 July 2013 concerning the applicant’s claim of adverse possession in respect of a certain property. The reasoned decision of 22 July 2014 was served on the applicant on 16 September 2014.
6. On 3 October 2014 the Szczecin Regional Court decided to appoint a legal aid lawyer to represent the applicant in cassation proceedings. The lawyer was designated by the Szczecin District Chamber of Legal Advisers on 16 October 2014.
7. On 30 October 2014 the legal aid lawyer prepared an opinion on the lack of grounds for lodging a cassation appeal. In the opinion, the lawyer stated that the decision of 22 July 2014 had not been served on him.
8. The lawyer also stated that the two-month deadline for lodging a cassation appeal in the applicant’s case ran from 16 September 2014.
9. This opinion was served on the applicant on 4 November 2014.
10. On 3 November 2014 the applicant requested that the Szczecin Regional Court appoint him another legal aid lawyer. He repeated this request on 6 November 2014. It was dismissed on 13 November 2014. This decision was served on the applicant on 18 November 2014.
2. The facts in dispute
11. The applicant submitted that the deadline for lodging a cassation appeal had expired on 16 November 2014, that is, two days before he received the decision of 13 November 2014.
12. The Government submitted that on 16 October 2014 the Szczecin District Chamber of Legal Advisers had informed the Regional Court about the appointment of a legal aid lawyer for the applicant. Under Article 124 § 3 of the Code of Civil Procedure that date constituted the starting point for the two-month time-limit for lodging a cassation appeal. Therefore the last day of the time‑limit had been 16 December 2014.
13. The Government also submitted that the decision of 22 July 2014 had been served on the applicant’s lawyer, but provided neither a date nor proof of such event.
B. Relevant domestic law and practice
14. 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 Staroszczyk v. Poland no. 59519/00, §§ 38-65, 22 March 2007; Siałkowska v. Poland no. 8932/05, §§ 20-47, 22 March 2007; Smyk v. Poland no. 8958/04, §§ 16-42, 28 July 2009; Bąkowska v. Poland no. 33539/02, §§ 13-33, 12 January 2010; and Zapadka v. Poland no. 2619/05, §§ 23-47, 15 December 2009.
15. On 6 February 2005 amendments to the Code of Civil Procedure, adopted on 22 December 2004 (Ustawa o zmianie ustawy – Kodeks postępowania cywilnego oraz ustawy – Prawo o ustroju sądów powszechnych) entered into force. Under Article 3985 § 2 a cassation appeal has to be lodged with the court that gave the relevant decision within two months of the date on which the reasoned decision was served on the party concerned.
16. On 19 April 2010 amendments to the Code of Civil Procedure adopted on 17 December 2009 (Ustawa o zmianie ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw) entered into force. Under Article 124 § 4, if a legal aid lawyer was appointed at the party’s request, submitted before the expiry of the time-limit for lodging a cassation appeal, and the party correctly requested that the relevant reasoned decision be served on him, the court served of its own motion the relevant decision on the appointed legal aid lawyer. The time-limit for lodging a cassation appeal then starts to run on the date when the relevant decision was served on the legal aid lawyer.
COMPLAINT
17. The applicant complained under Article 6 § 1 of the Convention that he had been denied access to the Supreme Court.
THE LAW
A. The parties’ submissions
18. The Government submitted that the refusal of the legal aid lawyer to lodge a cassation appeal did not mean that the applicant had been denied access to the Supreme Court. His case had been examined by the courts at two levels of jurisdiction and his request for a legal aid lawyer had been processed swiftly. The appointed lawyer had acted in a diligent and prompt manner and the applicant had been left with sufficient time (more than one month) to hire a lawyer of his own choice after being served, on 4 November 2014, with the legal aid lawyer’s opinion finding that there were no grounds to lodge a cassation appeal on the applicant’s behalf.
19. The Government concluded that, given that the deadline for lodging the cassation appeal was 16 December 2014, the time left to the applicant to have a cassation appeal in his case prepared had given him a realistic opportunity of having his case brought before the Supreme Court.
20. The applicant disagreed and maintained that there had been a violation of Article 6 § 1 of the Convention in his case. He did not address the Government’s submissions concerning the expiry of the deadline.
B. The Court’s assessment
21. The general principles of the Court’s case-law concerning access to a court of cassation are summarised in the Court’s judgments in the cases of Staroszczyk v. Poland (no. 59519/00, §§ 123-29, 22 March 2007); Siałkowska v. Poland (no. 8932/05, §§ 101-07, 22 March 2007); Smyk v. Poland (no. 8958/04, §§ 54-59, 28 July 2009); Bąkowska v. Poland (no. 33539/02, §§ 44-55, 12 January 2010); and Zapadka v. Poland (no. 2619/05, §§ 57-61, 15 December 2009). The Court finds it appropriate to adopt those principles for the purposes of the instant case.
22. The Court observes that where a party to civil proceedings is represented by a lawyer, the procedural time‑limits set by the Code of Civil Procedure start to run on the date on which the judicial decisions were served on the lawyer (see paragraph 15 above).
23. In the present case the legal aid lawyer stated, in his opinion on the lack of grounds for lodging a cassation appeal, that the decision at stake had not been served on him (see paragraph 7 above). Thus he calculated that the time‑limit for lodging a cassation appeal started to run from the date on which the judgment of the appellate court had been served on the party, that is, on 16 September 2014.
24. However, this calculation appears to be incorrect in the light of the domestic law, which makes the start of the deadline dependent on serving of the decision at stake on the lawyer. It could even be argued that, as long as the decision and its written grounds were not served on the lawyer, the deadline did not start to run at all.
25. The Court reiterates that the standards referred to in paragraph 21 above do not require that the cassation appeal be actually lodged. A reasoned opinion about lack of legal grounds for a cassation appeal is sufficient, provided that after its delivery the applicant still has ample time to find a lawyer to lodge a cassation appeal.
26. It appears that in the present case the deadline started to run – if at all – on 16 October 2014, when the legal aid lawyer was informed that he had been appointed to represent the applicant, and expired on 16 December 2014. This gave the applicant more than a month to find a lawyer of his own choice, counting from the date on which he had been served with the lawyer’s opinion, that is from 4 November 2014. As the refusal of the legal aid lawyer was timely and met the quality requirements, the Court considers that the State offered the applicant effective enjoyment of access to justice (compare and contrast: Staroszczyk v. Poland, no. 59519/00, §§ 133‑135, 22 March 2007).
27. Moreover, it has to be noted that a lawyer can request that a cassation appeal lodged after the statutory deadline be admitted, given the specific circumstances of the case.
28. The Court concludes that the facts of the present case do not make it possible to establish that there was a violation of Article 6 § 1 of the Convention with respect to the applicant’s right to access to the Supreme Court.
29. It follows that the 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, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 July 2018.
Abel CamposAleš Pejchal
RegistrarPresident
Full & Egal Universal Law Academy