. The applicant complained under Article 6 § 1 of the Convention of being deprived of his right of access to the Supreme Administrative Court. He complained that his legal aid lawyer had refused to prepare and lodge a cassation appeal in his case and that he had been informed about this refusal too late to find a new lawyer who could prepare and lodge such an appeal.
CASE OF GORZKOWSKI v. POLAND
(Application no. 65546/13)
19 November 2020
This judgment is final but it may be subject to editorial revision.
In the case of Gorzkowski v. Poland,
The European Court of Human Rights (First Section), sitting as a Committee composed of:
Pere Pastor Vilanova, President,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,
Having regard to:
the application 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 Marcin Daniel Gorzkowski (“the applicant”), on 29 May 2013;
the decision to give notice to the Polish Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 20 October 2020,
Delivers the following judgment, which was adopted on that date:
The applicant complained under Article 6 § 1 of the Convention of being deprived of his right of access to the Supreme Administrative Court. He complained that his legal aid lawyer had refused to prepare and lodge a cassation appeal in his case and that he had been informed about this refusal too late to find a new lawyer who could prepare and lodge such an appeal.
1. The applicant was born in 1977 and lives in Białe Błota.
2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 4 December 2012 the Bydgoszcz Regional Administrative Court (Wojewódzki Sąd Administracyjny) dismissed the applicant’s appeal, which concerned urban planning, against the decision of the Governor of the Kujawsko-Pomorskie Region of 10 April 2012.
5. On 28 January 2013 the judgment, with its written grounds, was served on the applicant. Accordingly, the thirty-day time-limit to lodge a cassation appeal was due to expire on 28 February 2013.
6. On 18 January 2013 the Bydgoszcz Regional Administrative Court decided to appoint a legal aid lawyer to represent the applicant in cassation proceedings. The lawyer was designated by the Bydgoszcz District Chamber of Legal Advisers on 11 March 2013. By letter of 20 March 2013 the lawyer in question informed the applicant that she had been appointed to represent him. The parties did not inform the Court of the date when this letter was delivered to him.
7. On 29 March 2013 the legal aid lawyer prepared an opinion in which she stated that there were no grounds for lodging a cassation appeal in the applicant’s case. On the same day she sent this opinion to the Bydgoszcz Regional Administrative Court and to the applicant. The letter was received by the above-mentioned court on 2 April 2013. The applicant submitted that it had been served on him on 16 April 2013.
RELEVANT LEGAL FRAMEWORK AND PRACTICE
8. The domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court (Naczelny Sąd Administracyjny) prior to 15 August 2015 are stated in the Court’s judgments in the cases of Subicka v. Poland, no. 29342/06, §§ 12-21, 14 September 2010; Subicka v. Poland (no. 2), nos. 34043/05 and 15792/06, §§ 27-30, 21 June 2011; and Piotr Kozłowski v. Poland, no. 24250/11, §§ 16‑19, 9 April 2013.
9. In its decision no. II FZ 651/07 of 18 January 2008, the Supreme Administrative Court held that a request for leave to appeal out of time was the only way by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination.
10. When legal aid had been granted and the time-limit for the submission of a cassation appeal had already expired, it was open to the legally-aided party to submit the appeal together with a request for leave to appeal out of time under sections 86 and 87 of the Law on the Procedure before the Administrative Courts (ustawa z dnia 30 sierpnia 2002 r. ‑ Prawo o postępowaniu przed sądami administracyjnymi) (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). Initially, the manner in which the beginning of the time‑limit for lodging cassation appeals together with such an application was determined had led to divergent results. In certain cases the courts stated that such a request should be submitted within seven days from the date on which the lawyer obtained a power of attorney from the party; that date was considered to be the date on which the impediment to lodging an appeal ceased to exist (for example the Białystok Regional Administrative Court, II SAB Bk 27/07 of 10 April 2008), or from the date when the lawyer could obtain effective access to the case file (e.g. the Poznań Regional Administrative Court, IV SA/Po 865/06 of 13 November 2007).
11. However, in a number of decisions delivered before 2013 the Supreme Administrative Court acknowledged the difficulties which legally‑aided parties experienced in connection with lodging their cassation appeals against judgments of the first-instance administrative courts. It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough. The court held that the seven-day time-limit for a legally-aided party started to run only on the day when a legal aid lawyer had a genuine possibility of lodging the cassation appeal, and not when he or she was informed of his or her assignment to the case. The court was of the view that the latter approach was far too rigid and rendered the effective enjoyment of legal assistance granted under the legal aid system illusory. In any event, the cassation appeal had to be lodged within thirty days from the day on which the party was informed of the appointment of the legal aid lawyer (see, in particular, cases nos. I FZ 569/06 of 8 December 2006; I FZ 667/06 of 15 January 2007; I FZ 30/09 of 2 March 2007; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; II FZ 177/08 of 25 June 2008; I FZ 30/09 of 2 March 2009; and II OZ 1093/09 of 9 December 2009).
12. On 15 August 2015 section 177 of the Law on the Procedure before Administrative Courts was amended. Currently it provides that the thirty‑day time-limit for lodging a cassation appeal for a legally-aided party starts to run only on the day when a legal aid lawyer is informed of his or her assignment to the case. If, however, the lawyer prepares an opinion on the lack of grounds for lodging a cassation appeal within this time-limit, this opinion is served on the party, which then has another thirty days to find another lawyer and lodge a cassation appeal.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION ON ACCOUNT OF LACK OF ACCESS TO THE SUPREME ADMINISTRATIVE COURT
13. The applicant complained that he had been deprived of his right to access to a court as provided in Article 6 § 1 of the Convention which, in so far as relevant, reads as follows:
“In the determination of his civil rights and obligations …, everyone is entitled to a fair … hearing … by [a] … tribunal…”
A. Submissions by the parties
14. The Government submitted that the application was inadmissible on account of the applicant’s failure to exhaust domestic remedies. They argued that once the legal aid lawyer had refused to prepare a cassation appeal, it had been open to the applicant to hire another lawyer and to request leave to lodge a cassation appeal out of time.
15. The Government further argued that there had been no violation of Article 6 § 1 of the Convention. They submitted that the two letters relevant for the assessment of the time-limit within which the applicant could have lodged a request for leave to lodge a cassation appeal out of time (a letter informing him about the appointment of his legal aid lawyer and the letter containing this lawyer’s refusal to prepare a cassation appeal) were sent within merely nine days and that it should be assumed that they were served within similar periods from the sending dates. The Government submitted that in such a case the applicant would have had around twenty-one days within which to lodge a relevant request which, according to the Court’s case-law, would constitute sufficient guarantee of his right of access to the Supreme Administrative Court (see Subicka (no. 2), cited above, §§ 60 and 69, and Piotr Kozłowski, cited above, §§ 16-19).
16. The applicant stressed that he had received the letter of 29 March 2013 only on 16 April 2013 and produced a handwritten note of the delivery date made on that day. He submitted that the legal aid lawyer’s refusal to prepare a cassation appeal was arbitrary and deprived him of effective representation.
17. The Court considers that the Government’s preliminary objection concerning the applicant’s failure to exhaust domestic remedies is closely linked to the substance of the complaint under Article 6 § 1 of the Convention. It therefore joins this objection to the merits of the present application.
18. 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, §§ 123-129, 22 March 2007); Siałkowska v. Poland (no. 8932/05, §§ 101-107, 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).
19. The Court reiterates, in particular, that the mere fact that a legal aid lawyer may refuse to prepare and lodge a remedy to the highest court, if he or she finds no legal grounds to do so, cannot be said to be, in itself, tantamount to a denial of legal assistance which is incompatible with the State’s obligations under Article 6 of the Convention. However, an adequate institutional framework should be in place so as to ensure effective legal representation for entitled persons and a sufficient level of protection of their interests. In particular, the existence of regulations concerning the time frame within which the lawyer should inform the party of a refusal to prepare a cassation appeal and the reasons therefor has been considered crucial for the assessment of whether a party’s interests have been properly safeguarded (Siałkowska, cited above, §§ 111-115, and Bąkowska, cited above, § 47).
20. The same question arises in the context of the present case, namely whether, as a result of the refusal of a legal aid lawyer to prepare a cassation appeal against the judgment of the Regional Administrative Court, the applicant was deprived of access to the Supreme Administrative Court in a manner contrary to the Convention.
21. At the relevant time the case-law of the Supreme Administrative Court (see paragraphs 9-11 above) provided that the party’s request for legal aid did not affect the running of the time-limit for lodging a cassation appeal. However, the party who was subsequently granted legal aid could petition the administrative court to grant him or her leave to submit a cassation appeal out of time. There was no homogeneous method of calculating the time-limit to request retrospective leave. Some administrative courts applied the seven-day time-limit calculated from the day when a legal aid lawyer had a genuine possibility of lodging the cassation appeal. Others tried to apply the legal rules less strictly in different ways, for instance by applying the thirty-day time-limit to run only from the day when the party was informed about the appointment of the legal aid lawyer.
22. The Court notes that using different methods of calculation leads to different results as to the day on which the time-limit actually expires. However, the Court has accepted the practice of the administrative courts that a cassation appeal must in any event be lodged within thirty days from the day on which the party was informed of a legal aid lawyer’s assignment to the case. The Court has held that this approach was compatible with Convention standards (Subicka (no. 2), cited above, § 58). Since in the present case the applicant failed to provide the Court with any arguments that the time-limit had expired on another day, the Court will follow the method of calculating the time-limit applied in Subicka (no. 2), cited above, §§ 59-71.
23. The Court observes that the judgment of 4 December 2012, with its written grounds, was served on the applicant on 28 January 2013. Accordingly, the thirty-day time limit to lodge a cassation appeal was due to expire on 28 February 2013 (see paragraph 5 above). By a letter of 20 March 2013 the applicant’s lawyer informed him about being assigned as a legal aid lawyer to his case. The thirty-day time-limit for lodging a request for leave to lodge a cassation appeal out of time started to run from the day when this letter was served on the applicant. The parties have not supplied that date. Nine days later, after sending the above-mentioned letter, on 29 March 2013 the lawyer sent a letter informing the applicant about her refusal to prepare the cassation appeal. Together with the letter she submitted an extensively reasoned opinion in which she explained why, in her opinion, the cassation appeal in the applicant’s case had no chance of success (see paragraphs 6-7 above).
24. Had the two letters (of 20 and 29 March 2013) been served on the applicant with the same delay, the applicant would still have been left with twenty-one days within which to avail himself of the possibility of seeking leave to appeal out of time by a privately-hired lawyer. However, the applicant indicated that he had received the second letter only on 16 April 2013 and produced a handwritten note of the delivery date made on that day. The Government did not present any evidence to contradict the applicant’s statement in this respect. Moreover, since neither the applicant nor the Government provided the Court with the date on which the applicant had been served with the letter of 20 March 2013 referred to above, it may be assumed that it could have been delivered to the applicant at the earliest on 22 March 2013. Consequently, the applicant had at least until 22 April 2013 (as 21 April 2013, which would have been the last day of the 30-day time‑limit, was a Sunday) to lodge a cassation appeal prepared by a privately-hired representative. Hence, when receiving information about the legal aid lawyer’s refusal to prepare the cassation appeal, he would have been left with six days (four of which were working days) within which to avail himself of the possibility of seeking leave to appeal out of time by a privately-hired lawyer.
25. The Court is of the view that it would have been exceptionally difficult, if not impossible, for the applicant to find a new lawyer who would have committed to preparing and lodging a cassation appeal within this time-limit. Consequently, the shortness of time left to the applicant to undertake any steps to have the cassation appeal in his case prepared did not give him a realistic opportunity of having his case brought to and argued before the Supreme Administrative Court (see Siałkowska, cited above, § 115-116, and Zapadka, cited above, § 64).
26. The Court accordingly rejects the Government’s preliminary objection on non-exhaustion of domestic remedies(see paragraph 17 above) and finds that there has been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 of the Convention on account of unfairness of the proceedings
27. The applicant also complained that the administrative court had wrongly assessed the evidence presented in his case and, as a result, had failed to establish the facts of the case correctly and had given an erroneous judgment.
28. The Court reiterates that, while Article 6 § 1 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, like the establishment of facts and interpretation of the domestic law, are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140, and García Ruiz v. Spain [GC], no. 30544/96, ECHR 1999-I, § 28).
29. 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
30. The applicant relied also on Article 5 § 1, Article 13, and Article 14 of the Convention as well as Article 1 of Protocol No. 1. However, his arguments with respect to those provisions were in fact identical to those made under Article 6 § 1 of the Convention and related to the outcome of the domestic proceedings. The Court concludes that those complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
31. 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.”
32. Under the head of pecuniary damage, the applicant sought 10,000 euros (EUR). That sum comprised, inter alia, the costs of adapting his land to the decision sought by him in administrative proceedings and the loss of value of this property that – according to him – occurred as a result of an unfavourable outcome of the administrative proceedings.
33. The applicant also asked the Court to award him EUR 4,000 for non‑pecuniary damage sustained on account of the fact that he had not been given an adequate chance to defend his rights before the Supreme Administrative Court.
34. The Government submitted that the amounts claimed by the applicant were unjustified. They also argued that in so far as the applicant’s claims related to alleged pecuniary damage, they were under no circumstances relevant to the issue of the applicant’s access to the Supreme Administrative Court.
35. On the material before it, the Court does not discern a causal link between the violation found and the pecuniary damage alleged, as it cannot speculate as to what would have been the outcome of the cassation proceedings had the applicant been able to lodge his appeal. It therefore rejects that claim. On the other hand, the Court considers that the applicant has 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.
B. Costs and expenses
36. The applicant claimed EUR 3,500 in respect of costs and expenses incurred in the domestic proceedings and in the proceedings before the Court.
37. The Government submitted that the applicant had not presented any evidence substantiating that the costs and expenses concerned had been actually incurred.
38. According to the Court’s case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case the applicant failed to present any evidence or itemised list of costs and expenses occurred. In such circumstances, the Court rejects the applicant’s claim for costs and expenses.
C. Default interest
39. The Court considers it appropriate that the default interest rate 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,
1. Joins to the merits the Government’s preliminary objection concerning exhaustion of domestic remedies and rejects it;
2. Declares the complaint under Article 6 § 1 of the Convention concerning lack of access to the Supreme Administrative Court admissible and the remainder of the application inadmissible;
3. Holds that there has been a violation of Article 6 § 1 of the Convention of the Convention;
(a) that the respondent State is to pay the applicant, within three months, 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;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 November 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Renata Degener Pere Pastor Vilanova
Deputy Registrar President