FIRST SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 59519/00
by Stanisław STAROSZCZYK and Marianna STAROSZCZYK
against Poland
lodged on 15 November 1999
The European Court of Human Rights (First Section), sitting on 15 June 2006 as a Chamber composed of:
MrC.L. Rozakis, President,
MrL. Loucaides,
MrsF. Tulkens,
MrsN. Vajić,
MrA. Kovler,
MrsE. Steiner,
MrL. Garlicki, judges,
and Mr S. Nielsen, Section Registrar,
Having regard to the above application lodged on 15 November 1999,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having regard to the comments submitted by the Helsinki Foundation for Human Rights, Warsaw, and by the Council of Bars and Law Societies of Europe;
Having regard to the parties’ oral submissions at the hearing on 15 June 2006,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mrs Marianna Staroszczyk and Mr Stanisław Staroszczyk, are Polish nationals, who were born in 1932 and 1933 respectively and live in Warsaw. They are represented by Mr W. Hermeliński, a lawyer practising in Warsaw.
At the hearing held on 15 June 2006 the respondent Government were represented by their Agent, Mr Jakub Wołąsiewicz, assisted by Ms Eliza Suchożebrska and Ms Malgorzata Kosicka, Advisers.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicants owned a plot of land situated in Pruszków, near Warsaw. In 1982 the applicants were informed by the local authorities that, pursuant to a local zoning plan, their land was to be expropriated as a construction of dwelling buildings was planned in its place.
The applicants requested the Pruszków City Council to be compensated by another plot of land. Their son also filed a request asking that a plot of land be allocated to him. By a letter of 16 May 1986 the Pruszków City Council informed the applicants that their request could not be granted. On 22 April 1987 the applicants’ son was informed that his request to be allocated a plot of land within the Pruszków community was viewed favourably by the Social Commision (Komisja Społeczna) but could only be processed after the expropriation of his parents’ plot. In 1987 the expropriation procedure commenced. In their letters the local authorities confirmed that after the expropriation of the applicants’ land an allocation of a plot of land within the Pruszków community to the applicants’ son would become possible.
Eventually the applicants’ land was not expropriated but the applicants consented to a contract of sale. On 8 December 1987 they transferred ownership of their land to the State Treasury represented by the Pruszków City Council. They received the amount.
Following the sale they repeatedly inquired about the allocation of building land within the municipality but no steps were taken in order for the allocation to become effective and no decision as to the allocation was given.
In 1990 the applicants’ son was informed by the City Council that the allocation of plots of land within the community had been conducted in violation of the law and in disregard of the principles of transparency. Therefore, the entire process was to be reviewed.
On 26 November 1991 the applicants instituted proceedings against the State Treasury represented by the Pruszków City Council. They requested the Pruszków District Court “to oblige the Pruszków City Council to allot a plot of land to their son, as promised”. The Pruszków District Court transferred the matter to the Warsaw Regional Court which rejected the claim finding that only the administrative authorities had jurisdiction in matters concerning expropriations and granting replacement plots. The Court of Appeal upheld that decision on 10 February 1993.
On 26 August 1993 the applicant sent a letter of complaint to the Ministry of Justice. On an unspecified date the Ministry of Justice transferred the letter to the Warsaw Regional Court. That court recognised that the applicants’ action should be interpreted as an action to revoke the contract of sale with the Pruszków City Council of 8 December 1987 as they had consented to it on the mistaken belief that the City Council would allocate a comparable plot of land to their son. On 15 December 1993 the Warsaw Regional Court decided that, in view of fact that the value of the claim amounted to PLN (old) 10,000,000, a district court should examine the matter. The case was transferred to the Pruszków District Court. Subsequently, the applicants extended their claim and, on 18 August 1994, the Pruszków District Court transferred the case to the Warsaw Regional Court. On 18 October 1994 the case was transferred back to the Pruszków District Court and that court examined the case. On 3 June 1996 the first instance judgment was delivered. The court allowed the applicants’ claim finding that they had indeed acted on the assumption that the sale of their property had been the condition for the allocation of a new plot of land to their son and that that assumption had been prompted and maintained by the Pruszków City Council.
The State Treasury, represented by the Pruszków City Council filed an appeal. On 6 February 1997 the Warsaw Regional Court quashed the judgment and remitted the case to the first instance court for reconsideration. The Warsaw Regional Court found that not all circumstances of the case had been examined by the first instance court and that although the applicants had indeed acted upon the promise that the applicants’ son would be allocated a plot of land, no time limit had been set for that. Therefore, the trial court was instructed, in particular, to examine whether the applicants’ son could still be allocated a plot of land or whether such a possibility was excluded.
Having reconsidered the case, on 26 February 1998 the Pruszków District Court dismissed the applicants’ action. It found that the transfer of the applicants’ plot of land to the State had been inevitable since it had been planned for expropriation. Thus, the applicants could not validly claim that they had relied on the promises that their son would be allocated another plot of land and that they had therefore been unduly induced to sign the contract.
The applicants appealed.
On an unspecified date the applicants tried to obtain free legal aid in the proceedings. By a letter of 23 June 1998 the Polish Bar Association informed the applicants that it was not competent to grant legal aid and that such a request should be addressed to a court. On 29 June 1998 the applicants sent a letter to the President of the District Court in Pruszków requesting free legal aid in the proceedings. On 11 September 1998 the court granted free legal aid to the applicants and on 21 September 1998 addressed the Warsaw Bar to appoint an advocate for the applicants. Following this decision, on 6 October 1998 the Warsaw Bar Association appointed advocate A.Z. as the applicants’ ex officio attorney. Apparently, advocate A.Z. could not represent the applicants. On 3 Nobember 1998 A.Z. informed the court that she did not wish to represent them as her law offices were located in Pruszków and the case, upon appeal, was to be examined by the Warsaw court. Although the distance between Warsaw and Pruszków is only around 20 kilometres, the Warsaw Bar Association accepted this argument and discharged A.Z. from the representation of the applicants. On 3 December 1998, the Warsaw Bar Association appointed advocate G.P-R. to represent the applicants. On 31 December 1998 G.P.-R. sent a letter to the Warsaw Bar requesting the Bar to discharge her of her duties.
On 7 January 1999 the applicants wrote a letter to the President of the Pruszków District Court in which they complained that despite the court’s decision granting them ex officio legal aid none of the attorneys appointed so far expressed any interest in their case. In response, the President of the Pruszków District Court instructed the applicants that they should address the Warsaw Bar Association directly. At the same time, the President also undertook to draw attention of the Warsaw Bar Association to the applicants’ problem. On 18 January 1999 the applicants wrote to the President of the Warsaw Regional Court. They stated that their case was about to be examined by the second instance court for the second time and that they were at a significant disadvantage in comparison with the defendants, the State Treasury, which was represented by a lawyer.
On 5 February 1999 the Warsaw Bar Association appointed advocate K.B. to represent the applicants. He met with the applicants in March 1999 and represented them at the hearing before the appellate court held on 25 May 1999. On that date the Warsaw Regional Court issued a judgment dismissing the applicants’ appeal. The applicants were informed by that court that a cassation appeal could be filed.
After the hearing the lawyer instructed the applicants to take steps in order to have the judgment with its written grounds served on them.
On 25 May 1999 the applicants themselves requested the court to serve on them the judgment with its written grounds.
On 23 September 1999 the applicants were duly served with a copy of the judgment together with its written grounds.
In a letter to the court of 30 September 1999 the applicants complained about certain errors in the judgment. Subsequently, the court corrected certain clerical errors in the written grounds of the judgment and sent it to the applicants by registered post. The applicants did not collect it from the post office.
On 23 October 1999 the applicants sent a registered letter to advocate K.B. asking him to indicate when he could be available for consultation or to call them back. There was no reply to this letter.
On 22 November 1999 the applicants wrote to the Warsaw Bar Association asking for assistance. They complained that since the date of the hearing before the appellate court they could not reach advocate K.B.
On 30 November 1999 the applicants wrote to the President of the Warsaw Regional Court stating that they could not reach their ex officio lawyer and asking for instructions. In response, the applicants were informed that the President of the Court did not have any supervisory powers in respect of ex officio attorneys and that they should contact the Warsaw Bar Association. The President of the Regional Court also stated that he had obliged the President of the Civil Division at that court to draw the attention of the Warsaw Bar to the problem submitted by the applicants.
On 23 December 1999 the applicants sent a letter to the Warsaw Bar Association, complaining about the lawyer’s failure to contact them and asking for assistance in their case.
On 5 January 2000 the applicants sent another registered letter to K.B. asking for urgent contact in view of the impossibility to reach him. They stated that they had unsuccessful tried to get in touch with him for several months as his cellular phone had been changed and the fixed phone did not reply.
On 12 January 2000 the judgment of 23 May 1999 was sent to the lawyer’s office by registered post. It was served on K.B. on 21 January 2000.
On 27 January 2000 the applicants and the lawyer met at his office. They were informed during this meeting that there were no grounds for filing a cassation appeal in their case.
By a letter of 28 January 2000 the applicants informed the President of the Warsaw Regional Court of the meeting held on 27 January 2000. They submitted that K.B. had given them the judgment, had informed them that there were no grounds on which he could lodge a further appeal against it and suggested that they sign a declaration that they wished to give up pursuing the case.
On 15 February 2000 they sent a further letter to the Warsaw Regional Bar Association, in which they complained that the legal aid lawyer had met with them “seven months after the termination of the proceedings” and informed them that he saw no grounds to pursue the case any further.
On 1 March 2000 the Secretary of the Warsaw Bar Association informed the applicants that K.B. had responded to the charges brought against him in the applicants’ complaint lodged on 22 November 1999. According to his explanations, there were no grounds for lodging a cassation appeal in the applicants’ case and the applicants had been informed thereof. The Secretary reminded the applicants that if an ex officio attorney found no grounds on which to lodge a cassation appeal, the Bar Association would not appoint another lawyer to do so.
B. Relevant domestic law and practice
1.Relevant provisions of the Constitution
Article 45 of the Constitution, insofar as relevant, reads:
“Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...”
Article 17 of the Constitution, insofar as relevant, reads:
“By means of a statute, associations may be created within a profession in which the public repose confidence, and such professional associations shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, public interest.”
2.Legal aid
Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular should indicate the consequences of that party’s acts or failures to act.
Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living.
Pursuant to Article 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant’s case.
3. The cassation appeal
At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a second-instance court which terminated the proceedings.
Article 393 1 of the Code listed the grounds on which a cassation appeal could be lodged. It read as follows:
“The cassation appeal may be based on the following grounds:
1) a breach of substantive law by its erroneous interpretation or wrongful application;
2) a breach of procedural provisions, if that defect could significantly affect the outcome of the case.”
The Polish Code of Civil Procedure sets out the principle of mandatory assistance of an advocate in cassation proceedings. Article 393² § 1 of the Code of Civil Procedure, applicable at the relevant time, required that a cassation appeal be filed by an advocate or a legal adviser.
Under Article 3934 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser were rejected.
4.Relevant provisions of the Bar Act
Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant:
“1. The Bar is established to provide legal assistance, co-operate in protecting a person’s rights and freedoms as well as to formulate and apply the law.
2. The Bar is organized as a self-governing association.
3. An advocate whilst executing his/her professional duties is accountable only to the law.”
Article 3 of the Act provides as follows:
“The general tasks of the professional Bar Council are as follows:
1) creation of conditions for the statutory performance of the Bar’s tasks,
2) representation of the Bar and protection of its rights,
3) supervision over the observance of the rules regulating the practice of the profession,
4) development of professional skills and training of advocates,
5) determination and promotion of professional ethics and ensuring their observance,
6) management (...) of the Bar’s assets.”
Article 28 of the Act reads:
“1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council.
2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.”
Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court.
Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under legal aid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney terminate the representation, or notify the refusal to the body which appointed him or her.
5.Resolution of the Supreme Court of 2001 (III CZP 14/00)
In 2001 the Supreme Court issued a resolution in reply to a legal question whether a legal aid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive.
It observed that issues involved in the legal aid concerned not only proper administration of justice, but also touched on human rights, and a right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid available under Polish law.
The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism from the access to the court point of view. However, a certain conceptual confusion was to be noted in provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legal aid lawyers’ obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. The essential body of law concerning civil procedure had been enacted in 1964, while the provisions on mandatory legal representation for the purposes of the cassation appeal had been introduced in 1996, when this new kind of appeal had been created.
As a result, the scope of legal aid lawyers’ obligations to provide a party to the proceedings with “legal aid” in civil proceedings before the Supreme Court was unclear. The court noted that the judicial practice regarding the application of relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts.
The court observed that the issue of possible conflicts between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client’s wishes. The role of a legal aid lawyer had rather to be understood as obliging him or her to provide legal advice to the party, including as to the prospects of success offered by a cassation appeal against a given judgment.
The constitutional role of the Supreme Court, a highest judicial authority, was also an argument in favour of a conclusion that a legal aid lawyer was not compelled by the will of the party to have a cassation appeal lodged, even if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting, at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had been rejecting such requests and in other it accepted them. However, it did not prevent the parties from having recourse to this course of action.
6.Retrospective leave to appeal out of time
Pursuant to Article 169 of the Code of Civil Procedure, a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time-limit; this measure shall be performed simultaneously with lodging the request.
7.Service of court correspondence
Article 133 § 3 of the Code of Civil Procedure reads, insofar as relevant:
“3. If a legal representative or a person authorised to receive court correspondence on behalf of a party has been appointed in a case, the court correspondence shall be served on these persons.”
C.Code of Conduct of the Council of Bars and Law Societies of Europe
The Council of Bars and Law Societies of Europe has adopted a Code of Conduct in the European Union.
Its Article 1 provides that a lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is his or her duty not only to plead his or her client’s case but also to be his or her adviser.
A lawyer’s function therefore lays on him or her a variety of legal and moral obligations, sometimes appearing to be in conflict with each other, towards the client, the courts and other authorities before whom the lawyer pleads his or her client’s case or acts on his or her behalf; the legal profession in general and each fellow member of it in particular; the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society.
Pursuant to Article 3.1.2 of the Code, a lawyer shall advise and represent his or her client promptly, conscientiously and diligently.
Under Article 3.1.4 a lawyer shall not be entitled to exercise his or her right to withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prejudice being suffered by the client.
COMPLAINTS
The applicants complain under Article 6 § 1 of the Convention that the proceedings were unfair and that they were denied effective access to a court. They refer to the fact that the lawyer appointed under the applicable legal aid scheme failed to undertake the necessary steps to represent their interest effectively in that he refused to bring the cassation appeal to the Supreme Court against the second-instance judgment.
The applicants further complain under Article 6 § 1 that the domestic courts violated the principle of equality of arms as in the proceedings against the State Treasury their submissions to the court were not properly recorded and the State Treasury was clearly favoured. They also complain under Article 1 of Protocol No. 1 to the Convention that the State, acting deceitfully, induced them to dispose of their property.
THE LAW
1.The applicants complain under Article 6 § 1 of the Convention that the proceedings were unfair and that they were denied effective access to a court.
Article 6 § 1 of the Convention, in so far as relevant, reads:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A.The Government’s objections as regards incompatibility ratione personae and exhaustion of domestic remedies
a)The Government argue first that the application is incompatible ratione personae with the provisions of the Convention. In the present cases the courts acknowledged the need for the applicants to be represented by a legal aid lawyer and such a lawyer was assigned to the case. He duly represented them in the proceedings before the court of appeal. However, any problems that might have arisen afterwards in connection with the issue of lodging of the cassation appeal between the applicants and the lawyer do not incur the liability of the State. The lawyer was a member of an independent and self-governing professional association, which adopts its own rules of conduct and sets down its own disciplinary regulations. The public authorities do not exercise any direct control over the methods of the lawyers’ work and cannot impose on a legal aid lawyer an obligation to draw up a cassation appeal.
It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed, and, as such, cannot, other than in special circumstances, incur the State’s liability under the Convention. The Government refer to the Court’s case law in similar cases (Artico v. Italy, judgment of 13 May 1980, Series A no. 37, § 18; Daud v. Portugal, judgment of 21 April 1998, Reports of Judgments and Decisions 1998‑II, § 33). They reiterate that special guarantees required with regard to defence rights in criminal proceedings are not applicable in the same way in civil proceedings (Skrobol v. Poland, no. 44165/98, dec. 8 July 2003).
The applicants emphasise that legal professions carry out their functions in accordance with, and for the purpose of protecting, public interest. It is a court which decides on the need of a party to civil proceedings to be represented by a lawyer, and it is only the court which may discharge the lawyer from this duty. Thus, the bar association is charged only with a purely technical part of the whole process of launching effective legal aid, namely with assigning an individual lawyer to an individual case. Consequently, the State cannot be regarded as not bearing any responsibility for the conduct of legal aid cases such as this concerned in the present case.
The applicants refer in this respect to the Daud and Artico judgments (cited above) as relevant for the assessment of the case.
The Court considers that the Government’s objection is closely linked to the substance of the applicants’ above complaint under Article 6 § 1 of the Convention, and should be joined to the merits of the case.
b)The Government argue furthermore that the applicants failed to exhaust all the remedies available under Polish law as required by Article 35 § 1 of the Convention.
If they were dissatisfied with legal assistance they received from the officially appointed lawyer, it was open to them to make a complaint to the local Bar Association under Article 28 of the Bar Act and to ask that another lawyer be assigned to their case. If the local Bar Association had shared their doubts regarding the soundness of the lawyer’s refusal to draw up a cassation appeal, it could have appointed another lawyer for them. Even assuming that this new lawyer would not have had time to submit a cassation appeal within the time-limit provided for by law, he or she could do that after the expiry of that time limit and, at the same time, request a retrospective leave to appeal out of time.
Secondly, the applicants could have appointed a lawyer of their own choice for the purposes of representing them before the Supreme Court.
Thirdly, had the cassation appeal lodged by a lawyer of their own choice been successful, they could have sought compensation, under provisions of civil law governing liability in tort, from the legal aid lawyer for damage caused by his decision.
The applicants submit that Article 28 of the Bar Act was not applicable to their situation at all. This provision is applicable only to situations in which a lawyer simply refuses to provide legal assistance. In the present case the legal aid lawyer did not do that, because the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client’s wishes. The lawyer represented the applicants before the appellate court and subsequently found no grounds on which to lodge a cassation appeal. This conduct cannot be said to amount to a “refusal to provide legal assistance”.
They further disagree with the Government insofar as they argue that following a successful complaint to the local Bar Association they could be assigned another lawyer to lodge a cassation appeal out of time and, at the same time, request a retrospective leave to appeal out of time. They refer in this respect to the letter of 1 March 2000, in which the local Bar Association stated that if an ex officio attorney found no grounds on which to lodge a cassation appeal, the Bar Association would not appoint another lawyer to do so.
Insofar as the Government argue that the applicants could have sought compensation by way of civil proceedings in tort, from the legal aid lawyer who refused to lodge a cassation appeal, the applicants emphasise that no examples of such successful claims before domestic courts have been adduced.
The Court considers that the Government’s objection as to the question of exhaustion of domestic remedies is also closely linked to the substance of the applicants’ above complaint under Article 6 § 1 of the Convention. It should therefore be joined to the merits of the case as well.
B.The substance of the application
1. The parties’ submissions
The Government first recall that the right of access to a court is not absolute but may be subject to limitations which are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation (Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998‑VIII, § 147).
The Government submit that the judgment of the appellate court was served on the applicants themselves on 23 September 1999. However, under the applicable provisions of domestic law the time-limit for the lodging of a cassation appeal did not start to run on that date. In cases in which a party is represented by a lawyer, the service of a judgment on the party does not produce any legal effects. It is only the service of a judgment on the lawyer which makes the time-limit start to run.
The Government further assert that only after the judgment had been served on the applicants, the court served it on the lawyer. He received it by registered post on 21 January 2000. It was only from that date that the thirty-day time-limit provided for by Article 3934 of the Code of Civil Procedure as applicable at that time started to run. Hence, on 27 January 2000, when the applicants had a meeting with the lawyer who then refused to draw up the appeal, the time-limit was still running. The applicants had afterwards twenty-four days during which to make efforts in order to have the appeal lodged with the Supreme Court.
The Government aver that the applicants failed to pursue their case actively. The fact that legal aid lawyer was appointed to represent them did not exempt them from the obligation of due diligence, binding on all parties to civil proceedings. In the present case, they did not inform their lawyer about their request to have the second-instance judgment served on them; they did not send him a letter asking him to take steps to lodge a cassation appeal against this judgment and did not check at the registry of the court whether this judgment had been served on him.
In any event, prior to 21 January 2000, the date of the service of the judgment on him, there was no need for the attorney to take any steps in connection with the cassation appeal. This was so because it was eventually only on that date that the question whether there were grounds on which to lodge a cassation appeal became relevant. He cannot therefore be said to have acted negligently in the applicants’ representation before 21 January 2000.
Likewise, after the meeting on 27 January 2000, the applicants failed to take any steps in order to have the cassation appeal lodged in the case, despite the fact that they still had twenty-four days within which they could do so. It was only on 15 February 2000 that they complained to the Warsaw Regional Bar about the lawyer’s conduct. In that letter, they did not ask the Bar to appoint another lawyer to their case, as they could do pursuant to Article 28 of the Bar Act.
The applicants accept that there is no obligation under the Convention to make legal aid available for disputes (contestations) in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (Del Sol v. France, no. 46800/99, § 20, ECHR 2002‑II).
In this context, the means by which a State ensure effective access to civil courts fall within its margin of appreciation (Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, §§ 26-36).
However, the applicants submit that Article 6 § 1 provides a guarantee for persons seeking legal assistance for the purposes of civil proceedings before the national courts, although a less extensive one than in criminal cases. The question of legal assistance should be seen as an element of the right of access to a court. They relied on the Court’s judgment in the case Airey v. Ireland (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32). In discharging that obligation, the State must, moreover, display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (R.D. v. Poland, nos. 29692/96 and 34612/97, § 44, 18 December 2001).
The applicants also accept that the right of access to a court does not encompass also a right of access to a court competent to examine appeals on points of law. However, if the legislature chooses to create such court, it should respect the principles of procedural fairness in the procedure before it. These principles apply also to the proceedings in which the party’s access to that court is determined. Under applicable Polish legislation, these principles have not been properly observed, as indicated by the Supreme Court in its resolution of 21 September 2000. It emphasised therein a certain conceptual confusion to be noted in the provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. The applicants stress that these systemic shortcomings came to light in the concrete circumstances of their case.
The applicants submit that it was improper on the part of the lawyer to oblige them to ask for the written grounds of the judgment on the merits and to have that judgment served on them. The burden of the conduct of the proceedings fell on them, while it was essentially a task of the legal aid lawyer. Further, the subsequent difficulties which the applicants had in getting in touch with him show that the conduct of legal assistance in their case was not sufficiently diligent. The applicants repeatedly tried to arrange a meeting with him, to no avail.
The applicants maintain that it is of little importance that the judgment was finally served on the lawyer on 21 January 2000. Even assuming, as the Government do, that the time-limit for the lodging of the cassation appeal started to run from that date, it does not justify the fact that the conduct of the representation by the legal aid lawyer was negligent during the period of over eight months.
The applicants submit that during the meeting of 27 January 2000 the lawyer merely told them that he saw no grounds on which to lodge a cassation appeal. It was in February 2000, and only in reply to their written complaint to the local Bar Association, that this refusal was formulated in writing.
Even if the Government’s submission that from 27 January 2000 the applicants had twenty-four days for the lodging of the cassation appeal is correct, the applicants point out that they did not have financial means to hire a lawyer. It was essentially for that reason that the courts granted legal aid to them. In the absence of any mechanism available under domestic law to regulate properly situations in which legal aid lawyer refused to draw up the cassation appeal, they were deprived of any remedies by which to improve their procedural situation and effectively lodge an appeal with the Supreme Court.
2.The third parties’ submissions
a)The Council of Bars and Law Societies of Europe
The Council of Bars and Law Societies of Europe recalls that Article 6 § 1 of the Convention embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect (Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom, judgment of 10 July 1998, Reports of Judgments and Decisions 1998‑IV, § 72). In some circumstances, professional legal assistance is necessary to ensure that an individual enjoys the right to a court. This requirement may be fulfilled by the grant of legal aid. Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case (Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, § 26).
Should a legal aid board determine that legal assistance is crucial for the proper conduct of a case, the right to effective access to a court demands that such representation be provided. Such is the situation also when successive lawyers refuse to act on the party’s behalf (Bertuzzi c. France, no 36378/97, §§ 27 - 32, CEDH 2003‑III)
The Council of Bars and Law Societies of Europe believes, considering the Court’s case-law and the Code of Conduct it has adopted and having regard to the general principles by which justice must be governed, that the Member States of the Council of Europe are under a general obligation to secure that the system under which a citizen is entitled to obtain legal aid provides effective representation in judicial proceedings.
The Council stresses that access to justice shall be equal for all citizens. This principle can only be enforced if the equality of arms in the exercise of defence rights is guaranteed. Indeed, the principle of quality of arms is an aspect of a right to a fair hearing within the meaning of Article 6 § 1 of the Convention. This obligation is particularly important in those civil cases, in which – as the present case – a litigant opposes the State.
Legal aid is one of the means to have the objective of fair access to justice realised. The Court has held in its case-law that legal aid serves the purpose of ensuring effective access to justice. In allowing citizens with very low financial means to be able to have recourse to legal aid assistance, the legal aid institutions allow them to obtain legal advice and identify legal remedies appropriate to their situation. To this effect, legal aid should be adequate and effective.
There are various systems of legal aid in State Parties. Although legal aid institutions are responsible to ensure a satisfactory end result, i.e. adequate and timely appointment of a lawyer, it is the State Parties who bear the final obligation to ensure that the legal aid system, seen as a whole, is effective. This requirement of effectiveness is of a crucial importance, as the procedural requirements must be respected by the legal aid lawyer so that the client’s interests are well represented. While it is true that the guarantees of Article 6 § 1 of the Convention are not as extensive as those of Article 6 § 3 of the Convention, the requirements of a fair hearing call for legal aid to be available also in civil cases.
As regards issues specifically linked with cassation proceedings, it is submitted that procedures similar to cassation appeal procedure before the Polish Supreme Court exist, albeit with different characteristics defined by laws governing civil procedure, in several State Parties. In those countries in which all lawyers are entitled to plead before the cassation court, as is the case in Poland, the principles governing legal aid must take into consideration the specificity of such procedures. As cassation appeals normally provide a legal framework specially designed for the purposes of judicial review of the lawfulness of decisions given by lower courts, special strict condition of admissibility apply to them. Lawyers are by definition best placed to judge whether any given case offers prospect of success before a cassation court. This discretion is a vital element of the independence of the legal profession and implies that the lawyer should freely take a decision not to submit an appeal to the court of cassation if he or she is of the view that relevant legal grounds for doing so do not obtain in the case.
However, it logically follows from the principle of effectiveness of legal aid that the beneficiary of legal aid must have a reasonable possibility of asking for another legal aid lawyer to replace the first one, within a reasonable time-frame and taking into consideration the special characteristics of the cassation procedure. Short deadlines applicable in the cassation proceedings may in certain cases render such change of lawyers difficult, but legal aid scheme should allow such a change of counsel before the applicable deadline expires.
In conclusion, the Council submits that the State Parties are obliged to see to it that an effective mechanism of legal aid allows adequate access to justice. The State Parties are responsible for ensuring that the system works efficiently. It is for the Court to examine on case-to-case basis whether this was indeed the case in various individual situations. However, no State Party shall bear the responsibility for actions of lawyers, acting as members of independent bar associations. Only where the legal aid scheme does not adequately meet the conditions of effectiveness, shall the role of the State be assessed by the Court, in order to determine whether the State has taken all measures to ensure fair access to justice.
In order for the effective access to justice to be compatible with the requirements of Article 6 § 1 of the Convention, a balance should be struck between the possibility for a lawyer to refuse to represent a client and the opportunity for a party to the proceedings to request either a bar association or the court, as the case may be, to replace a lawyer by another one, with full respect of the independence of the legal profession.
b)The Polish Helsinki Foundation for Human Rights
The Polish Helsinki Foundation for Human Rights submits that in civil cases, lack of legal aid can hinder resolution of disputes having an impact on civil rights and obligations of individuals. Taking into account the broad scope of cases considered as „civil” and their importance for individuals, the need for professional legal aid in civil proceedings is substantial for guaranteeing the access to court. The possibility to refuse the preparation of a cassation appeal by the advocate has an important impact on the access to legal aid and consequently on the right to a court. A cassation appeal lodged by the party personally, without the assistance of an advocate, fails to comply with legal requirements and will be dismissed by the court.
The Civil Procedure does not provide mandatory representation in any type of cases. However, the lodging of a cassation appeal requires mandatory assistance of an advocate or legal advisor.
Nonetheless, an ex officio advocate or legal advisor are not obliged by law to prepare and to submit a cassation appeal in every and each case. They can refuse to do so in two situations. Firstly, pursuant to Article 28 of the Bar Act, a lawyer can give notice on termination of power of attorney when he or she considers that an “important reasons” prevent him or her from further representing the client. He or she must notify the Regional Bar Council thereof.
Secondly, under Article 57 of the Body of Ethical Rules and Dignity of Advocate Profession an advocate can refuse to prepare a cassation appeal if he or she is of the opinion that there are no reasonable prospects of its success.
This principle that a legal aid lawyer can refuse to draw up a cassation appeal was confirmed by the resolution of the Supreme Court of 28 September 2000. The Supreme Court stated therein that such a refusal could only be justified by “important reasons” within the meaning of Article 28 of the Bar Act. In civil cases it is only the Regional Bar Council who is competent to countenance such a refusal. The Supreme Court also observed that this notion of “important reasons” was not defined by law. It was of the view that Article 57 of the Body of Ethical Rules and Dignity of Advocate Profession should serve as a basis for interpretation of this notion.
The Foundation further stresses that legal provisions concerning refusal of legal assistance were unclear and provoked serious difficulties of interpretation. Until the Supreme Court’s resolution of 2000 even the case‑law of the Supreme Court in that matter was divergent.
When a lawyer refuses to draw up a cassation appeal, he or she should notify his or her decision to the local Bar Council. However, there are no detailed rules determining what information or grounds should be specified in such notice. The commentaries to the Civil Procedure Code highlight that under current law there is no direct possibility to control the legitimacy of the advocate refusal in case when the advocate was appointed ex officio. If a client disagrees with the lawyer’s decision, he or she can complain to the local Bar Council. However, there are no regulations in force which would govern the procedure of examination of such complaints by the Bar. There are no further instruments allowing the party to obtain any answer from the Bar Council, or to obtain another legal aid lawyer for the purposes of preparation of the appeal.
What is more, while the refusal to prepare and submit a cassation appeal has to be justified, there are no standards determining the manner and scope of such justification that has to be provided for by a lawyer.
The applicable regulations, including the Code of Civil Procedure, fail to safeguard access to the Supreme Court in case of an arbitrary refusal to prepare and to submit the cassation appeal by a lawyer. The party does not possess any remedy or procedure at his or her disposal to review the well‑foundedness of the lawyer’s decision. Furthermore, the thirty-day time‑limit for the lodging of a cassation appeal as applicable at the material time was short. When a legal aid lawyer refused to draw up a cassation appeal made by the ex officio advocate, the party did not have enough time to lodge with the court a new motion for the appointment of another lawyer. The procedure of appointment of a legal aid lawyer was too long to make it possible for a new lawyer to submit the cassation appeal within the time‑limit.
Lastly, as the costs of legal representation within the legal aid scheme are covered out of the State budget, the State should have, at least to some degree, a possibility of reviewing of the lawyer’s refusals to prepare cassation appeals in civil cases.
3.The Court’s assessment
The Court considers, in the light of the parties’ submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint 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.
2.The applicants further complain under Article 6 § 1 that the domestic courts violated the principle of equality of arms as in the proceedings against the State Treasury their submissions to the court were not properly recorded and the State Treasury was clearly favoured. They also complain under Article 1 of Protocol No. 1 to the Convention that the State, acting deceitfully, induced them to dispose of their property.
The Court has examined the remainder of the complaints as submitted by the applicants. However, having regard to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Joins to the merits the Government’s objections as regards incompatibility ratione personae and exhaustion of domestic remedies;
Declares admissible, without prejudging the merits of the case, the applicants’ complaint about the legal aid lawyer’s refusal to bring a cassation appeal to the Supreme Court;
Declares the remainder of the application inadmissible.
Søren NielsenChristos Rozakis
RegistrarPresident
Full & Egal Universal Law Academy