CASE OF TABOR v. POLAND
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
7. In July 1993 the applicant was employed at the refinery “T.” as director of a department. From 1993 to 1997 the conditions of his contract of employment were changed several times. On 30 September 1997 the refinery gave notice to terminate the applicant’s contract. 8. On 7 October 1997 the applicant lodged with the Katowice Regional Court a compensation claim against the refinery, in the amount of PLN 19,273, for unlawful termination of his contract. He also claimed reinstatement. By a decision of 3 December of 1997 the Katowice Regional Court considered that it was not competent to examine his case and transmitted it to the Katowice District Labour Court. 9. By a judgment of 4 December 1998 the Katowice District Labour Court ordered the refinery to pay the applicant compensation of PLN 5,008.74 for unlawful termination of the employment contract. The compensation corresponded to 3 months’ remuneration. The court dismissed the remaining claims. 10. Both parties to the proceedings appealed against the first-instance judgment. By a judgment of 18 November 1999 the Katowice Regional Court dismissed their appeals. 11. On 26 November 1999 the applicant requested the Katowice Regional Court to grant legal aid for the purpose of instituting cassation proceedings. He referred to his difficult financial situation and to the fact that he had been unemployed from November 1997 to May 1999 due to the termination of his employment contract by the defendant company. He also submitted that from May 1999 he had been receiving a net salary of PLN 750 and submitted documents to show the period of his unemployment and his earnings. In December 1999 the applicant, having received no response from the Katowice Regional Court, lodged a cassation appeal himself. 12. By a decision of 17 January 2000 the Katowice Regional Court dismissed his request for legal aid for the purpose of instituting the cassation proceedings without giving written reasons for its decision. 13. On the same day, the Katowice Regional Court rejected the applicant’s cassation appeal on the ground that it had not been lodged by a lawyer, as required by the law. 14. The applicant lodged an appeal against these decisions with the Supreme Court. He also requested the grant of retrospective leave to lodge a cassation appeal out of time. He further asked that court to appoint a lawyer for him in order to assist him in the preparation of his appeal. The applicant argued that the Regional Court had failed to deal within the time-limit with his request for legal aid. This had forced the applicant to lodge the cassation appeal himself. The fact that the cassation appeal had been rejected, combined with the unmotivated refusal of legal aid, had made it impossible to have his interests protected and his arguments properly presented to the cassation court. 15. By a decision of 25 May 2000 the Supreme Court dismissed his appeal against the decision rejecting the cassation appeal. The court observed that the applicable law clearly provided that a cassation appeal could only be lodged by a lawyer. The Supreme Court further refused to entertain the appeal in so far as it was related to the refusal of legal aid, observing that under the applicable legal provisions an appeal to the Supreme Court against an interlocutory decision of the Court of Appeal was only available against a decision to reject a cassation appeal. 16. 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 submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. 17. Pursuant to Articles 117 of the Code, persons exempted from the 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. 18. The Polish Code of Civil Procedure lays down the principle of mandatory assistance of an advocate in cassation proceedings. Article 393² § 1 of the Code of Civil Procedure, applicable at the relevant time, required that a cassation appeal be filed by an advocate or a legal adviser. 19. Under Article 3934 § 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. 20. Article 394 of the Code of Civil Procedure guarantees to a party to the proceedings a right to appeal against a decision of the first-instance court which terminates the proceedings. Such an interlocutory appeal (zażalenie) is also available against certain interlocutory decisions, specified in this provision. An appeal is available against a refusal of exemption from court fee and, likewise, against a refusal of legal aid, when such decisions were given by a first-instance court. 21. The Supreme Court held in a number of its decisions that no appeal to the Supreme Court is available against an interlocutory decision on legal aid given by a second-instance court. It observed that a decision on legal aid was expressly mentioned in a list of interlocutory decisions against which an appeal was specifically provided for under Article 394 of the Code of Civil Procedure, but only when they were given by the first-instance court. Furthermore, under this provision an appeal was available against decisions which terminated the proceedings in the case. However, the court noted that a refusal of legal aid could not be regarded as “terminating the proceedings in the case” within the meaning of this provision because this notion had to be reserved for decisions containing a certain element of assessment of the merits of a given claim. The decisions on legal aid issues did not contain such elements. As they did not fall into either of the two principal categories listed in Article 394, the only possible conclusion was that no appeal was available against them (II CZ 9/97, 21 February 1997, unpublished; I CZ 27/97, 4 April 1997, OSNC 1997, No. 9, item 120; I CZ 14/97, 8 April 1997, OSN 1997 No. 9, item 120). 22. Pursuant to Article 357 of the Code of Civil Procedure, written grounds for interlocutory decisions shall be prepared by the court only if an appeal is available against such a decision. 23. Pursuant to Article 169 of the Code, a party to the proceedings may ask for retrospective leave to appeal outside the prescribed time-limit; the appeal shall be submitted simultaneously with the lodging of such a request.