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FOURTH
SECTION
CASE OF KORGUL v. POLAND
(Application
no. 35916/08)
JUDGMENT
STRASBOURG
17 April
2012
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Korgul v. Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
David
Thór Björgvinsson,
President,
Lech
Garlicki,
Päivi
Hirvelä,
George
Nicolaou,
Ledi
Bianku,
Zdravka
Kalaydjieva,
Vincent
A. De Gaetano,
judges,
and Lawrence Early,
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. 35916/08)
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 Grzegorz Korgul (“the applicant”), on
15 July 2008.
2. The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign
Affairs.
3. The
applicant complained, in particular, that he had been deprived of
access to the Supreme Court.
- On
23 July 2010 the President of the
Fourth Section decided to give notice of the application to
the Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
- In
accordance with Protocol No. 14, the application was allocated to a
Committee.
- The
Government objected to the examination of the application by a
Committee. After having considered the Government’s objection,
the Court decided that the case should be examined by a Chamber.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1962 and lives in Lublin.
- On
6 June 2007 the Lublin District Court convicted the applicant of
several robberies and sentenced him to 3 years and 6 months’
imprisonment. By a judgment of 28 December 2007 the Lublin Regional
Court upheld the first instance judgment.
- On
4 January 2008 the applicant requested the Lublin Regional Court to
grant him a legal-aid lawyer for the purpose of lodging a cassation
appeal with the Supreme Court.
- On
7 February 2008 a legal-aid lawyer was assigned.
- By
a letter of 14 March 2008 the lawyer informed the court in a one
sentence-long opinion that he had not found any grounds on which to
prepare a cassation appeal. This statement did not include any
reasons for the refusal to lodge a cassation appeal.
- By
a letter of 17 March 2008 the court forwarded the lawyer’s
statement to the applicant. The letter read as follows:
“...The Lublin Regional Court informs you that
your legal-aid lawyer, advocate Mr W.W., informed the court in
writing that he had not found any grounds to prepare a cassation
appeal. In consequence, the time-limit for lodging a cassation appeal
by a lawyer of your own choice expires on 7 April 2008.”
- The
letter as well as the opinion were served on the applicant on an
unspecified date.
- On
27 March 2008 the Lublin Regional Court refused to assign a new
legal-aid lawyer to the applicant. The court stated that because the
previous legal-aid lawyer had not found any grounds on which to draw
up a cassation appeal, the mere fact that the applicant disagreed
with this decision could not require the verification of this opinion
by successive lawyers.
II. RELEVANT DOMESTIC LAW AND PRACTICE
-
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 Kulikowski v. Poland, no. 18353/03,
§§ 19-27, ECHR 2009 ... (extracts) and
Antonicelli v. Poland,
no. 2815/05, §§ 14-22, 19 May 2009.
- In
its decision of 25 March 1998 the Supreme Court stated that the
refusal of a legal-aid lawyer to lodge a cassation appeal did not
constitute a valid ground for granting retrospective leave to lodge
such an appeal by another lawyer out of time (V KZ 12/98). It
confirmed this ruling in a further decision of 1 December 1999. The
Supreme Court observed that the court could only assign a new
legal-aid lawyer to the case if it were shown that the first lawyer
had been negligent in his or her task of assessing whether a
cassation appeal had any prospects of success. If this were not the
case, a court was not obliged to assign a new legal-aid lawyer to
represent the convicted person and its refusal was not subject to
appeal (III KZ 139/99). The Supreme Court reiterated its
position in a number of other decisions (e.g. II KZ 11/02, II KZ
36/02).
- On
26 February 2002 the Supreme Court examined a case where a legal-aid
lawyer had refused to represent a convicted person for the purposes
of cassation proceedings, finding that a cassation appeal would offer
no prospects of success. It held that in such a situation the
appellate court was obliged to instruct the defendant that the
time-limit for lodging a cassation appeal started to run only on the
date on which the defendant was served with the lawyer’s
refusal and not on the earlier date when the judgment of the
appellate court was served on the defendant himself. It stated that
it was not open to doubt that a defendant faced with a legal-aid
lawyer’s refusal had the right to take other measures to seek
legal assistance necessary for effective lodging of a cassation
appeal (III KZ 87/01). The Supreme Court reiterated its
position in a decision of 6 May 2008 (II KZ 16/08) and in a
number of similar decisions given in 2008.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE LACK OF ACCESS TO A COURT
- The
applicant complained that, as a result of the legal-aid lawyer’s
refusal to draft a cassation appeal, he had been denied effective
access to the Supreme Court. He relied on Article 6 § 1 taken
together with Article 6 § 3 (c) of the
Convention. Those provisions, in so far as relevant, read:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence
has the following minimum rights: ...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require;”
A. Admissibility
- The
Government argued that the applicant had failed to avail himself of
the applicable domestic remedies.
He should have hired a lawyer of his own choice with a view to
submitting a cassation appeal on his behalf. It was also open to him
to request that another legal-aid lawyer be assigned to the case. Had
the time limit for lodging the appeal already expired by the
time the request had been granted, it would have been open to the
applicant to request retrospective leave to appeal out of time.
- The applicant disagreed.
- The
Court notes that legal representation is mandatory for the purposes
of preparing a cassation appeal. However, in the applicant’s
case, the courts, by granting the applicant legal aid, acknowledged
his lack of financial resources. In such circumstances, the Court
considers that the applicant should not have been required to embark
on further attempts to obtain legal assistance with a view to lodging
a cassation appeal for the purposes of exhaustion of domestic
remedies (see Seliwiak v. Poland,
no. 3818/04, § 47, 21 July 2009).
In so far as the Government argued that the applicant should have
requested that another legal-aid lawyer be assigned to represent him
with a view to preparing a cassation appeal, the Court observes that
on 27 March 2008 the domestic court refused to assign a new legal-aid
lawyer to the applicant. In so far as the Government argued that the
applicant should have requested retrospective leave to appeal out of
time, the Court considers that the Government’s preliminary
objection under this head is closely linked to the merits of the
applicant’s complaint. Accordingly, it decides to join its
examination to the merits of the case.
- The
Court notes that this complaint 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 submitted that he had been granted legal aid for the
purposes of lodging a cassation appeal. However, he had been
ultimately deprived of access to the Supreme Court because that
lawyer refused to prepare a cassation appeal in his case and he was
left in uncertainty as to his legal position. Besides, the court
refused to assign a new legal-aid lawyer to him.
- The
Government argued that the applicant should have requested
retrospective leave to appeal out of time. Such leave can only be
granted if the non-compliance with a time limit occurred “outside
the applicant’s power” within the meaning of Article 126
§ 1 of the Code of Criminal Proceedings (“the Code”).
The Government submitted that there was well established
case-law of the domestic courts regarding a failure to comply with a
time-limit which was due to the lack of instruction or false
instruction from the trial court as being “outside the
applicant’s power”. The Government referred, in
particular, to two decisions of the Supreme Court, of
26 February 2009 (IV KZ 5/09) and 16 July 2009
(III KZ 58/09).
- The
Government concluded their submissions by arguing that given the
possibility of seeking a renewal of the time-limit for lodging a
cassation appeal after a legal-aid lawyer’s refusal and leave
to appeal out of time, a refusal by a legal-aid lawyer does not
deprive a party of access to the Supreme Court. Even if a court
failed to inform the applicant of the two above-mentioned procedural
mechanisms, a party would receive all the necessary information from
a lawyer, and the applicant would certainly seek another lawyer’s
assistance given that a cassation appeal could only be lodged by a
professional lawyer.
- The
Court notes that the complaint falls to be examined solely under
Article 6 § 1 of the Convention. The Court has already had
occasion to set out at length the relevant principles derived from
its case-law in this area (Kulikowski v. Poland,
no. 18353/03, ECHR 2009 ...
(extracts); Antonicelli v. Poland,
no. 2815/05, 19 May 2009; Arciński
v. Poland, no. 41373/04,
15 September 2009). It adopts those principles for the
purposes of the instant case.
- In
the present case the court informed the applicant about the legal aid
lawyer’s refusal by a letter of 17 March 2008 (the letter was
served on the applicant on an unspecified date). In the letter the
court did not inform the applicant that under the case-law of the
Supreme Court, adopted in 2002, the time-limit for lodging a
cassation appeal started to run only on the date on which the
defendant was served with the legal-aid lawyer’s refusal (see,
Dombrowski v. Poland, no. 9566/10, § 25, 18 October
2011). On the contrary, the court informed the applicant that the
time-limit for lodging a cassation appeal was to expire on 7 April
2008. Given that at that time the applicant was not represented by a
lawyer, he would have had no reason not to rely on this erroneous
information about the time-limit for lodging a cassation appeal.
Furthermore, the one sentence-long opinion of the legal-aid lawyer
did not include any information as to the reasons for his refusal,
thus leaving the applicant in a state of uncertainty as to the
prospects of success of a cassation appeal.
- In
so far as the Government argued that the applicant should have
requested retrospective leave to appeal out of time, the Court notes,
firstly, that the time-limit for lodging the cassation appeal started
to run again and thus there was no need to seek retrospective leave.
Secondly, as to the possibility of requesting another legal-aid
lawyer, on 27 March 2008 the Lublin Regional Court refused to assign
a new legal-aid lawyer to the applicant.
- The
Court further observes that the procedural framework governing the
making available of legal aid for a cassation appeal in criminal
cases, as described above, is within the control of the appellate
courts. When notified of a legal-aid lawyer’s refusal to
prepare a cassation appeal, it is entirely appropriate and consistent
with fairness requirements, that an appeal court indicate to an
appellant what further procedural options are available to him or her
(see Kulikowski v. Poland, cited above, § 70;
Antonicelli
v. Poland,
cited above, § 45; Jan
Zawadzki v. Poland, no. 648/02,
§ 16, 6 July 2010).
However, in the instant case this requirement was not complied with,
because the applicant was given erroneous information about the above
mentioned procedural options. As a result, the applicant’s
right of access to the Supreme Court was not secured in a “concrete
and effective manner”.
- The
Court finally notes that the refusal of a legal aid lawyer should
meet certain quality requirements. In particular, the refusal must
not be formulated in such a way as to leave the client in a state of
uncertainty as to its legal grounds (see Staroszczyk v. Poland,
no. 59519/00, § 135, 22 March
2007). Consequently, the unreasoned refusal left the
applicant without necessary information as to his legal situation and
the chances of his cassation appeal being accepted by the Supreme
Court.
- Accordingly,
having regard to the above deficiencies, the Court concludes that
there has been a violation of Article 6 § 1 of the
Convention and the Government’s objection based on
non-exhaustion of domestic remedies (see paragraphs 19–21
above) must be rejected.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF THE UNFAIRNESS OF THE PROCEEDINGS
- The
applicant complained, relying on Article 6 of the Convention, that
the proceedings had been unfair in that the courts had wrongly
assessed evidence and erred in establishing the facts of the case.
- However,
the Court reiterates that, according to Article 19 of the
Convention, its duty is to ensure the observance of the engagements
undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law
allegedly committed by a national court unless and in so far as they
may have infringed rights and freedoms protected by the Convention.
Moreover, while Article 6 of the Convention guarantees the right to a
fair hearing, it does not lay down any rules on the admissibility of
evidence or the way it should be assessed, which are therefore
primarily matters for regulation by national law and the national
courts (see García Ruiz v. Spain [GC], no. 30544/96,
§ 28, ECHR 1999-I, with further references).
- In
the present case, even assuming that the requirement of exhaustion of
domestic remedies was satisfied, the Court notes that the applicant
did not allege any particular failure to respect his right to a fair
hearing on the part of the relevant courts. Indeed, his complaints
are limited to a challenge to the result of the proceedings.
Assessing the circumstances of the case as a whole, the Court finds
no indication that the impugned proceedings were conducted unfairly.
It
follows that this part of the application is manifestly ill founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage, costs and expenses
- The
applicant sought compensation for pecuniary and non pecuniary
damage in the amount of 5,000 euros (EUR). He also claimed the amount
of 1,250 euros (EUR) for reimbursement of costs and expenses.
- The
Government contested these claims.
- The
Court accepts that the applicant suffered non-pecuniary damage which
is not sufficiently compensated by the finding of a violation. Making
its assessment on an equitable basis and having regard to the
circumstances of the case, the Court awards the applicant EUR 2,000
under this head. The Court does not discern any causal link between
the violation of Article 6 and any financial loss which the applicant
might have suffered. Thus, there is no need to award compensation for
pecuniary damage.
- Regarding
costs and expenses, the Court observes that the applicant submitted
only one invoice for translation of the Court letter of 21 October
2010, amounting to 60 PLN (15 EUR). As to the remainder of the claim,
the applicant did not submit any specifications of fees or other
expenses. The Court observes that for an award to be made it has to
be satisfied that the costs and expenses were actually incurred, were
necessarily incurred and were also reasonable as to quantum (see,
among other authorities, the Zimmermann
and Steiner v. Switzerland, judgment of 13 July 1983, Series A
no. 66, § 36). Accordingly, the Court dismisses this claim.
B. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Joins to the merits the Government’s
preliminary objection based on non exhaustion of domestic
remedies and declares admissible the applicant’s
complaint concerning lack of access to a court and the remainder of
the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention and dismisses in consequence the
Government’s above-mentioned objection;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000
(two thousand euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Polish zlotys at the
rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
4. Dismisses
the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early David Thór
Björgvinsson
Registrar President
