CASE OF ZAPADKA v. POLAND
Violation of Article 6 - Right to a fair trial
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1949 and lives in Ostróda. In the 1990s the applicant was suffering from lung cancer. During his treatment he was infected with type B hepatitis. 6. On 17 February 1998 the applicant lodged a claim for compensation against the hospital. He was represented by counsel, Z.K. On 22 September 1998 the Olsztyn Regional Court awarded the applicant compensation in the amount of twenty percent of his claim. The applicant appealed. 7. On 24 August 1999 the court issued a supplementary judgment declaring that in view of the reform of the health care system the State Treasury was liable jointly with the hospital for damage suffered by the applicant. 8. By a judgment of 29 December 1999 the Warsaw Court of Appeal held that the amount of compensation did not correspond to the damage which the applicant had suffered. Nevertheless, it dismissed the appeal. It pointed to the fact that the applicant had wrongly named one of the defendants, namely the hospital. 9. Subsequently, the applicant asked Z.K. on several occasions, including by letter, to take further steps and to lodge another appeal. He also contacted the local Bar, complaining about the lawyer's conduct. Finally, he authorised Z.K. to represent him in the cassation proceedings. 10. The cassation appeal was lodged on 4 August 2000. 11. On 27 April 2001 the Supreme Court dismissed it, partly because the lawyer had wrongly challenged the first-instance court judgment instead of the judgment of the appellate court and partly because the statement of appeal had not fulfilled the applicable formal requirements. 12. The decision was served on Z.K. on 30 May 2001 but he failed to inform the applicant of this. As a result, the applicant only learned about the outcome of the proceedings on 9 July 2002 when he contacted the registry of the Supreme Court directly. 13. On 24 June 2002 the applicant terminated his contract with Z.K. 14. On 14 November 2002 the applicant lodged a claim for compensation against Z.K. with the Elbląg Regional Court. In a judgment delivered on 4 June 2003 the Elbląg Regional Court awarded compensation for non-pecuniary damage sustained by the applicant as a result of Z.K.'s failure to represent his interests in the proceedings diligently. 15. On 7 October 2003 the applicant lodged an appeal against this judgment which was dismissed by the Gdańsk Court of Appeal on 9 March 2004. The decision was served on the applicant on 19 April 2004. 16. On 20 April 2004 the applicant requested legal aid for the purposes of preparing a cassation appeal. On 30 April 2004 the Gdańsk Court of Appeal allowed his request and requested the Gdańsk Bar Association to assign a lawyer to the case. On 13 May 2004 the Bar assigned the case to M.K. On an unspecified date between 14 and 17 May 2004 M.K. was served with a copy of the second-instance judgment. 17. On 19 May 2004 the applicant was served with a legal opinion prepared by M.K. and dated 17 May 2004 by which M.K. explained why he had found no grounds to prepare a cassation appeal. 18. On 27 July 2004 the applicant complained to the Ministry of Justice about the refusal. 19. As a result of this intervention with the Ministry, on 3 September 2004 the Gdańsk Court of Appeal requested M.K. to prepare the cassation appeal within seven days. In a written opinion of 6 September 2004 M.K. maintained his view that there were no grounds for a cassation appeal in this case. 20. On 9 September 2004 the applicant asked the local Bar to assign another legalaid lawyer to the case. 21. The Bar replied on 7 October 2004 that, having regard to the opinion expressed by the first lawyer, it saw no grounds for assigning new counsel to the applicant. It also reminded him that pursuant to the case-law of the Supreme Court it was permissible for a legalaid lawyer to refuse to prepare a cassation appeal if he or she considered that it offered no prospects of success. 22. On 27 September 2004 the applicant asked for retrospective leave to lodge a cassation appeal out of time. On 28 October 2004 that request was rejected. 23. 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. 24. 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 or she submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family's standard of living. 25. Pursuant to Article 117 of the Code, persons exempted from 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. 26. 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 secondinstance court which terminated the proceedings. 27. Under Article 393 4 § 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 would be rejected. 28. Article 393 1 of the Code as applicable at that time 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.” 29. Article 393 3 specified the requirements of a cassation appeal. It read in its relevant part: “§ 1. A cassation appeal should include: 1) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2) an indication of the grounds for the cassation appeal; 3) arguments showing that its examination would be justified; 4) a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” 30. Article 393 4 read as follows: “A second-instance court shall reject in a hearing held in camera a cassation appeal lodged after a prescribed time-limit or which is inadmissible on other grounds (...).” 31. The reasons justifying the examination of a cassation appeal by the Supreme Court could be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part: “1. The Supreme Court may refuse to entertain the cassation appeal, if: i) there is no appearance of any significant legal issue in the case, ii) there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts' case law, iii) the appeal is manifestly ill-founded. 2. Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.” 32. 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 organised as a self-governing association. 3. An advocate whilst executing his/her professional duties is accountable only to the law.” 33. 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.” 34. 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 of the 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.” 35. Under Article 21 § 3 of the Act, an advocate shall provide legalaid services in the jurisdiction of a court where he or she has their office. 36. 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 proceedings before the bar disciplinary court. 37. 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 the legalaid 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. 38. In 2000 the Supreme Court issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive. 39. The court observed that issues involved in the grant of legal aid concerned not only the proper administration of justice, but also touched on human rights, and the right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid under Polish law. 40. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. However, a certain conceptual confusion was 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. In particular, the scope of legalaid lawyers' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. This was so partly because the essential body of law concerning civil procedure had been enacted in 1964, while the provisions on mandatory legal representation for the purposes of a cassation appeal had been introduced in 1996, when this new kind of appeal had been created. 41. As a result, the scope of legalaid lawyers' obligations to provide a party to the proceedings with “legal aid” in civil proceedings was unclear. In particular, the provisions on lawyers' legalaid obligations in connection with cassation proceedings before the Supreme Court lacked clarity. The court noted that the judicial practice regarding the application of the relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts. 42. The court observed that the issue of possible conflict 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 legalaid 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. 43. The constitutional role of the Supreme Court, the highest judicial authority, was also an argument in favour of the conclusion that a legalaid lawyer was not compelled by the will of the party to have a cassation appeal lodged 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 rejected such requests and in others it had accepted them. However, it did not prevent the parties from having recourse to this course of action. 44. Pursuant to Article 169 of the Code of Civil Procedure, a party to 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. 45. Article 133 § 3 of the Code of Civil Procedure reads, in so far as relevant: “If a legal representative ... has been appointed in a case, the court correspondence shall be served on [him or her]. However, in a number of decisions the civil courts have held that the running of the time-limit for lodging a cassation appeal is not affected in any way by a request for legal aid submitted by a hitherto non-represented party and its subsequent grant or refusal. That time-limit starts to run on the date when the party was served with the judgment of the appellate court together with its written grounds, also where the request for legal aid has subsequently been granted (the Supreme Court's decisions of 15 April 1997, II CZ 35/97; 18 April 1997, I PKN 120/97; 10 September 1998, II UZ 101/98; 6 July 1999, II UKN 332/99; 9 August 2000, I CKN 747/00; 23 March 2001; II UZ 17/01; 19 June 2001, I PZ 33/01; 27 September 2001, II UZ 51/01; 28 November 2001, II UZ 85/01, 15 December 2005, I UZ 33/05). 46. The Supreme Court has repeatedly 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 timelimit could be admitted for examination (21 April 1997, II CZ 38/97; 27 September 2001, II UZ 51/01). In a further series of decisions the Supreme Court considered that it would be unfair for the legally-aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within a period of thirty days counted from the day of service of the judgment on the party. The parties waiting for legal-aid services cannot be held at fault for shortcomings in the system. A party who was obliged to have recourse to legal aid should not be put in a worse situation than that of a person who did not seek it. A request to appeal out of time should therefore be submitted within seven days from the date on which the lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal (4 March 2005, II UZ 72/04; 27 June 2000, I CZ 62/00), or from the date when the lawyer was informed that he had been assigned to the case by the local Bar Association (11 October 2001, IV CZ 163/01; 17 November 1998, II UZ 122/98; 11 October 2001, IV CZ 163/01; 47. In a resolution adopted by a bench of seven judges of the Supreme Court on 17 February 2009 (III CZP 117/08) that court acknowledged that there had been discrepancies in the manner in which the beginning of the seven-day time limit for submitting an application for leave to appeal out of time by legally-assisted parties had been determined. The court was of the view that applications for leave served the purpose of making access to the Supreme Court for legally-aided parties genuine and effective. Hence, the beginning of the time-limit could not be determined in a mechanical manner in all cases. The courts should instead examine the circumstances of individual cases as a whole and determine that date bearing in mind the genuine possibility for a lawyer to examine the case and prepare a cassation appeal.