CASE OF PIOTR KOZŁOWSKI v. POLAND
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court)
David Thór Björgvinsson;George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
5. The applicant was born in 1961 and lives in Spała. 6. By a judgment of 14 April 2010 the Warsaw Regional Administrative Court dismissed the applicant’s appeal against a second-instance administrative decision by which the Chief Inspector of Construction Supervision (Główny Inspektor Nadzoru Budowlanego) had refused to declare the Łódź Governor’s decision of 13 November 2009 null and void. 7. On 12 May 2010 the judgment of 14 April 2010, together with its written grounds, was served on the applicant. 8. On 24 May 2010 the applicant filed a motion to be exempted from the payment of court fees and for the assistance of a legal-aid lawyer for the purpose of lodging a cassation appeal with the Supreme Administrative Court. 9. On 12 June 2010 the time-limit for lodging a cassation appeal expired. 10. On 13 July 2010 the Warsaw Regional Administrative Court dismissed the motion for exemption from court fees but granted the applicant the assistance of a legal-aid lawyer. 11. On 9 November 2010 the registry of the court requested the Warsaw Bar Association to assign a lawyer to the applicant’s case. 12. On 16 November 2010 the Bar Association assigned E.K.S to represent the applicant. 13. On 1 December the applicant received a letter from E.K.S. informing him that she had been appointed as his legal representative. 14. On 15 December the legal-aid lawyer, E.K.S., asked the applicant to pay the court fees for the cassation appeal and to return to her confirmation of the bank to transfer in order to attach it to the cassation appeal. 15. By a letter of 17 December 2010, served on the applicant on 20 December 2010, the lawyer informed the applicant that she had found no legal grounds on which she could draft a cassation appeal. 16. 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. 17. 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. 18. 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 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). 19. In a number of decisions delivered before 2010 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 the relevant caselaw 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 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 (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).