CASE OF SUBICKA v. POLAND
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1954. She lives in Gdańsk-Zaspa. 6. By a judgment of 30 March 2006 the Gdańsk Regional Administrative Court dismissed the applicant's appeal against a secondinstance administrative decision by which she had been refused a monthly social assistance benefit. This judgment, with its written reasons, was served on the applicant on 28 April 2006. 7. On an unspecified later date the applicant was granted, by a decision of an official of the court's registry, legal aid for the purposes of lodging a cassation appeal with the Supreme Administrative Court. 8. By a further decision of a registry official given on 25 April 2006 the registry requested the local Bar Association to assign a legal-aid lawyer to the case. That order was complied with on 12 June 2006. 9. On 19 June 2006 the Gdańsk Bar informed the court that Mr M. S. had been assigned to the case. Mr M.S. was so informed on 20 June 2006. 10. On 21 June 2006 he examined the case file and found that the time-limit for lodging a cassation appeal had expired on 28 May 2006. 11. By a letter to the court dated 1 July 2006 the lawyer informed the court that he saw no legal grounds on which he could draft a cassation appeal. He presented a detailed legal analysis of the case and an explanation why he considered that legal grounds for a cassation appeal did not obtain. He further an appeal, having been served with the judgment after the time-limit for its submission had already expired. 12. Legal aid can be granted under section 246 read together with section 247 of the Act on Procedure before Administrative Courts if a party to the proceedings demonstrates that he or she is unable to cover the relevant costs and the case has no prospects of success whatsoever. A decision on the request to grant legal aid can be issued either by the court or by an official from the court registry. Pursuant to section 244 of the Act, a grant of legal aid covers exemption from court fees and the appointment of a qualified representative. A representative is assigned to the case by a subsequent decision of the local Bar Association or other relevant professional organisation. 13. Section 173 of the Act on Procedure before Administrative Courts provides that a cassation appeal can be lodged against a judgment of the regional administrative court. 14. Pursuant to section 175, a cassation appeal should be prepared and lodged with the court by an advocate, legal counsel, a tax adviser or a patent agent. An appeal brought by a party him- or herself shall be rejected. Under section 177 § 1, the thirty-day time-limit for lodging a cassation appeal with the Supreme Administrative Court starts to run on the day on which a judgment of the Regional Administrative Court, together with its written grounds, has been served on the party concerned or his or her representative, if the party is legally represented. 15. Pursuant to section 86 of the Law on the Procedure before Administrative Courts, a party to the proceedings may request retrospective leave to take a procedural step outside the prescribed timelimit. Under section 87, this step shall be performed simultaneously with the act of lodging the request for leave and within seven days from the removal of the impediment which had prevented the party from taking this step. 16. In a number of decisions the administrative 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 and its subsequent grant. The time-limit starts to run on the date when the party was served with the decision of the regional administrative court with its written grounds. They referred to what they considered to be the established case-law of the Supreme Administrative Court (the Supreme Administrative Court's decision, Naczelny Sąd Administracyjny - hereinafter referred to as NSA – see decisions NSA, II OZ 393/05 of 24 June 2005; I OZ 160/08 of 14 March 2008, II OZ 1036/07 of 19 October 2007; II OZ 318/07 of 13 April 2007; the Olsztyn Regional Administrative Court, II SA/Ol 711/07 of 14 January 2008). 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 timelimit by a legally-aided applicant could be admitted for examination. 17. 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). 18. 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 that moment in a manner compatible with the effective access to the highest administrative court and equal for parties represented by lawyers appointed under the legal-aid 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; 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). 19. 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 in civil proceedings. It replied to the question in the affirmative, having noted 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. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. 20. The court observed 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. 21. This resolution was summarised in detail in the Court's judgment in the case of Zapadka v. Poland, no. 2619/05, §§ 38-43, 15 December 2009. 22. On 26 February 2002 the Supreme Court changed its previous position concerning the date on which the timelimit for lodging a cassation appeal started to run. It examined a particular situation 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 a right to take other measures to seek legal assistance necessary for an effective lodging of a cassation appeal (III KZ 87/01). 23. The Supreme Court reiterated its position in a decision of 6 May 2008 and in a number of similar decisions given in 2008. It observed that there had been certain discrepancies in the judicial practice as to the manner in which the time-limit in such situations was calculated, but the strand of the case-law launched by the decision given in February 2002 was both dominant and correct, and also accepted by doctrine as providing to defendants adequate procedural guarantees of access to the Supreme Court within a reasonable time-frame (II KZ 16/08).