CASE OF CHOROBIK v. POLAND
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Legal aid)
David Thór Björgvinsson;Nebojša Vučinić;Vincent A. De Gaetano
4. The applicant was born in 1941 and lives in Sosnowiec. 5. By a judgment of 8 August 2006 the Kraków Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision of 25 August 2005 by which the second-instance authority had refused to acknowledge that the applicant’s ailment was of an occupational character. 6. This judgment was served on the applicant on 25 September 2006. 7. By a decision of 19 October 2006 the court granted legal aid to the applicant. 8. The local Bar Association assigned a lawyer to the case by a decision of 2 November 2006. This decision was served on the lawyer on 8 November 2006. On 13 November 2006 the applicant gave a power of attorney to the lawyer. 9. On 1 December 2006 the lawyer submitted a cassation appeal to the Regional Administrative Court. 10. On 29 December 2006 that court held that the time-limit for lodging a cassation appeal had expired on 25 October 2006, thirty days after the applicant had been served with the judgment. The court rejected the cassation appeal on the ground that under the applicable laws the fact that the party was not represented by a lawyer and requested for legal aid only after having been served with the judgment had no bearing on the running of the time-limit for submitting a cassation appeal. It also noted that the legal-aid lawyer had failed to submit a request for leave to appeal out of time together with the cassation appeal. 11. The applicant’s lawyer appealed. He acknowledged that he had not submitted the request for leave to appeal out of time. However, he was of the view that this omission would not be relevant for the court’s decision to accept the cassation appeal for examination. 12. On 13 April 2007 the Supreme Administrative Court upheld the contested decision and shared the legal view expressed by the first-instance court. 13. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Administrative Court against judgments of the Regional Administrative Courts are stated in the Court’s judgment in the case of Subicka v. Poland, no. 29342/06, §§ 1221, 14 September 2010. 14. In particular, 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 method by which a cassation appeal submitted after the expiry of the time-limit by a legally-aided applicant could be admitted for examination. 15. When legal aid has been granted and the time-limit for the submission of a cassation appeal has already expired, it is open to the legally-aided party to submit the appeal together with a request for leave to appeal out of time made under sections 86 and 87 of the Law on the Procedure before Administrative Courts (e.g. NSA FZ 754/04 of 31 January 2005 and NSA, I OZ 160/08 of 14 March 2008). 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, which date is considered as the date on which the impediment to lodging an appeal ceased to exist (e.g. 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). 16. In a number of its recent decisions 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. It analysed relevant case-law of the administrative courts and noted that the manner in which the beginning of the time-limit for lodging cassation appeals was determined had led to divergent results. It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers. The court held that the 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 having been assigned to the case. The court was of the view that the latter approach was far too rigorous 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 (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 FZ 177/08 of 25 June 2008; II OZ 513/08 of 27 May 2008; I OZ 376/08 of 13 June 2008; I FZ 30/09 of 2 March 2009; II OZ 1093/09 of 9 December 2009; I FZ 30/09 of 2 March 2009).