Information Note on the Court’s case-law No. 95
March 2007
Siałkowska v. Poland - 8932/05
Judgment 22.3.2007 [Section I]
Article 6
Civil proceedings
Article 6-1
Access to court
Inability of legally-aided clients to appeal to the Supreme Court owing to their lawyers’ advice that they did not have reasonable prospects of success: violation
[This summary also covers the Judgment of the case Staroszczyk v. Poland, no. 59519/00, 22 March 2007]
Facts: The applicants in both of these cases were claimants in civil proceedings. They were prevented from appealing to the Supreme Court – where legal representation was compulsory – after the lawyers who had been appointed to assist them under the legal-aid scheme declined to act after advising that an appeal had no reasonable prospects of success.
In Staroszczyk, an appeal by the applicants to a regional court was dismissed in May 1999. As they wished to appeal from there to the Supreme Court, they made various attempts to contact the lawyer who had been assigned to represent them under the legal-aid scheme. However, it was not until seven months later, after the regional court’s judgment had been served on the lawyer, that they finally succeeded in contacting him. The lawyer then informed them orally at a meeting in his office that there were no grounds for filing a cassation appeal. They complained to the regional bar association but were informed that if the lawyer assigned to them under the legal-aid scheme considered that there were no grounds on which to lodge an appeal, the bar association would not appoint another lawyer to do so.
In Siałkowska, the lawyer assigned under the legal-aid scheme to represent the applicant in her appeal to the Supreme Court wrote to her six days before the thirty-day time-limit for lodging the appeal was due to expire to advise that there were no reasonable prospects of success. He repeated that advice at a meeting in his office three days later.
Law: The requirement under domestic law for a party to civil proceedings to be assisted by an advocate or legal counsel in the preparation of a cassation appeal was not per se contrary to Article 6 and there was no obligation under the Convention to make legal aid available for disputes in civil proceedings. However, the method chosen by the domestic authorities to ensure access to the domestic courts in a particular case had to be compatible with the Convention. Where legal aid was available for civil proceedings under domestic law, the State had to be diligent in securing legally aided parties the genuine and effective enjoyment of the rights guaranteed under Article 6 and the legal-aid system had to afford substantial guarantees against arbitrariness. The independence of the legal profession was crucial to the effective and fair administration of justice. It was not the State’s role to oblige a lawyer, whether appointed under a legal-aid scheme or otherwise, to institute proceedings or apply for a remedy which he or she considered had little prospect of success, for that would be detrimental to the essential role of an independent legal profession founded on the basis of trust between lawyers and their clients. The responsibility of the State was to ensure a proper balance between effective access to justice and the independence of the legal profession. The Supreme Court’s view that the role of legal-aid lawyers was to provide comprehensive legal advice, including advice on the prospects of success in a cassation appeal, and that lawyers assigned in civil cases were therefore entitled to refuse to prepare and lodge an appeal had to be endorsed. Nevertheless, the refusal of a legal-aid lawyer to act had to meet certain quality requirements. In neither of these two cases were the requirements met as the applicants had been prevented by failings in the legal‑aid system from securing access to a court in a “concrete and effective manner”.
Staroszczyk – The applicable domestic regulations did not require the legal-aid lawyer to prepare a written legal opinion on the prospects of the appeal. Had he been required to provide a written opinion with reasons, it would have been possible, subsequently, to have had an objective assessment of whether his refusal to prepare the cassation appeal was arbitrary. This was particularly important in view of the fact that, as had been highlighted by the Constitutional Court, the legislation governing cassation appeals was couched in the broadest terms and gave rise to serious interpretational difficulties. The absence of a written opinion had left the applicants without necessary information as to their prospects of success.
Conclusion: violation (four votes to three).
Siałkowska – The applicable domestic regulations did not specify a time-frame within which the applicant had to be informed of the refusal to prepare a cassation appeal. By the time the applicant and her lawyer met, the time-limit for lodging a cassation appeal was due to expire in three days. That had not given her a realistic opportunity of having her case brought to and argued before the cassation court.
Conclusion: violation (unanimously).
Article 41 – EUR 4,000 in each case in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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