FOURTH SECTION
DECISION
Application no. 8676/03
by Tadeusz KAMIŃSKI
against Poland
The European Court of Human Rights (Fourth Section), sitting on 24 October 2006 as a Chamber composed of:
SirNicolas Bratza, President,
MrJ. Casadevall,
MrG. Bonello,
MrK. Traja,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović, judges,
and, Mrs F. Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 3 March 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Tadeusz Kamiński, is a Polish national who was born in 1950 and lives in Krakόw, Poland.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 9 June 1998 the applicant asked the Cracow Social Security Board (Zakład Ubezpieczeń Społecznych) to grant him compensation for an industrial accident he suffered on 16 September 1997. The board refused his request on 22 July 1998.
On 15 November 2001 the Kraków Regional Court (Sąd Okręgowy) changed the decision of the Social Security Board and granted the applicant compensation based on a 10% invalidity resulting from his accident.
The Cracow Court of Appeal (Sąd Apelacyjny) amended the first-instance judgment on 16 July 2002. It ruled that the applicant had suffered a 16% invalidity.
On 16 October 2002 the applicant lodged a cassation appeal against that judgment. He personally prepared and signed the appeal. From the material in the Court’s possession it does not appear that the applicant asked the court to appoint a lawyer to assist him in the preparation of his appeal.
On 29 October 2002 the Cracow Court of Appeal rejected the applicant’s cassation appeal. The court found that the applicant had failed to comply with procedural requirements for lodging it, as it had not been filed and signed by an advocate.
On 21 January 2003 the Court of Appeal rejected the applicant’s appeal against that decision, as it had not been lodged and signed by an advocate.
B. Relevant domestic law and practice
According to Article 392 of the Code of Civil Procedure, in the version applicable at the relevant time, a party could lodge a cassation appeal with the Supreme Court (Sąd Najwyższy) against a final judicial decision of a second-instance court.
Article 3932 § 1 provided:
“A cassation appeal shall be filed and signed by an advocate or a legal adviser”
Under Article 3934 § 1 of the Code of Civil Procedure read in conjunction with Articles 370 and 397 § 2, a cassation appeal which was not lodged by an advocate or a legal adviser would be rejected by the second-instance court. According to Article 39318 § 3 an appeal against such decision should likewise be filed and signed by an advocate or a legal adviser under pain of rejection.
COMPLAINT
The applicant complained about the unfairness of the proceedings and objected to their outcome. He relied on Articles 3, 6, 10 and 13 of the Convention.
THE LAW
The applicant complained that the proceedings for compensation were unfair and objected to their outcome.
Pursuant to Article 35 § 1 of the Convention:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law...”
The Court reiterates that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Consequently, States are dispensed from answering for their acts before an international body before they have had an opportunity to put matters right through their own legal system. Thus the complaint intended to be made subsequently to the Court must first have been made – at least in substance – to the appropriate domestic body (see, among many other authorities, Selmouni v. France [GC], §§ 74-76, ECHR 1999-VII; Kwiek v. Poland (dec.) no. 51895/99, 17 June 2003). Moreover, the obligation to exhaust domestic remedies laid down in Article 35 § 1 of the Convention requires the individual to follow the procedural rules attached to the remedy. Failure to do so, or a mistake in so doing, will affect the individual’s compliance with that obligation (see Hutten-Czapska v. Poland (dec.), no. 35014/97, 16 November 2000).
In this respect, the Court notes that the applicant, when lodging his cassation appeal, failed to comply with procedural requirements laid down by Polish law in respect of such appeals. He prepared and lodged it himself, whereas Article 3932 of the Code of Civil Procedure required that a cassation appeal had to be filed and signed by an advocate or a legal adviser. In consequence, his cassation appeal was rejected. Moreover, the Court notes that there is no indication that the applicant attempted to seek legal representation or asked the competent court to appoint a lawyer to lodge a cassation appeal on his behalf.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Françoise Elens-PassosNicolas Bratza
Deputy RegistrarPresident
Full & Egal Universal Law Academy