RUTKOWSKI v. POLAND
Inadmissible
Georg Ress
The applicant is a Polish national, born in 1966. He currently serves a prison sentence in Płock prison. A. The facts of the case, as submitted by the applicant, may be summarised as follows.  a) On 13 March 1997 the Toruń District Court convicted the applicant of assault against his brother-in-law and sentenced him to eight months’ imprisonment. When taking the evidence, the court interviewed the applicant and heard at least three other witnesses: his wife, the victim, and the victim’s wife. The court had further regard to a forensic medical opinion. The applicant filed an appeal with the Toruń Regional Court, submitting that the evidence on the case-file did not allow for a conclusion that he was guilty of any criminal offence, and requesting to be acquitted. He submitted in particular that he had been acting in self-defence. On 19 December 1997 the Toruń By a letter of 25 March 1998 the applicant’s officially appointed counsel informed him that his competence to act on the applicant’s behalf had expired on the date on which the appellate court gave its judgment. If the applicant wished to lodge a cassation appeal, it was open to him to hire a lawyer who should draft the appeal and submit it to the Supreme Court within thirty days from the service of the second-instance judgment with its written grounds on the applicant. He also informed the applicant that he was not intending to lodge a cassation appeal with the Supreme Court as his case-load made it impossible for him. On 26 March 1998 the applicant requested the Toruń Regional Court to appoint a counsel under the legal aid scheme, who would prepare a cassation appeal on his behalf. On 28 March 1998 the same counsel refused to accept the applicant’s power of attorney for the purposes of lodging the cassation appeal. He informed the applicant that it was open to him to submit to the court a request to have another lawyer assigned to the case. On 2 April 1998 the court granted the applicant’s request. Subsequently, on 7 April 1998 the Toruń Regional Bar Council, acting at the request of the Toruń District Court, assigned E.Z. as an officially appointed counsel to represent the applicant in the cassation proceedings. By a letter of 26 April 1998 E.Z. informed the applicant that she did not intend to draft a cassation appeal in his case, as she was of the view that no statutory grounds for so doing were available. She considered that the second-instance judgment was not flawed with shortcomings such as to justify lodging a cassation appeal under the applicable provisions of the Code of Criminal Procedure. The analysis of the case-file had not shown that any flagrant breach of law had been committed in the case. The applicant received this letter on 4 May 1998. On 28 July 1998 he renewed his request to have a lawyer assigned in order to represent him further in the proceedings. He also requested to be granted a retrospective leave to appeal out of time. On 20 October 1998 the Toruń Regional Court refused to appoint legal counsel under the legal aid scheme and to grant the applicant a retrospective leave to appeal out of time. The court considered that the objective of appointing a legal counsel was to guarantee to the accused person a right to have effective legal representation in the criminal proceedings. If a lawyer, having analysed the case-file, stated that there were no grounds on which a cassation appeal should be lodged, there was no legal basis on which the court could oblige the lawyer to act further. Moreover, there was no legal basis on which to appoint a new legal counsel to the case. E.Z. had filed her letter of 26 April 1998 with the applicant’s case file. It transpired therefrom that she had analysed the case-file with a view to lodging a cassation appeal, but that she had not found any grounds which would justify it. The court concluded that, in view thereof, there was no legal basis on which another lawyer could be appointed to the case. Subsequently the applicant complained to the Regional Council of the Toruń Bar. In reply, in a letter of 5 November 1998, the Dean of the Council informed him that E.Z. had been requested to explain the grounds on which she had refused to draft the cassation appeal. She had stated that she had examined the applicant’s case-file and had not found any grounds for filing the cassation appeal. The applicant’s attention was drawn to the fact that as the cassation Subsequently, the applicant requested the Minister of Justice to lodge a cassation appeal on his behalf. On 30 June 1999 the Minister of Justice refused to do so, considering that the examination of the case-file had shown that there were no legal grounds for lodging a cassation appeal. b) On 30 April 1998 the Toruń District Court convicted the applicant of attempted theft and sentenced him to one-year imprisonment and a fine. The applicant had committed the offence when being temporarily released from prison. On 5 February 1999 the Toruń Regional Court partly amended the contested judgment in that it quashed the part of the sentence by which the applicant had been ordered to pay a fine, partly amended the legal basis of the conviction and dismissed the remainder of the applicant’s appeal. B. Relevant domestic law 1. Assistance of an officially appointed lawyer On 1 September 1998 the new Code of Criminal Procedure entered into force. Pursuant to Article 84 of the Code, an officially appointed counsel is entitled to act on behalf of the accused throughout the entire proceedings. A counsel appointed to represent an accused in cassation proceedings should draft and sign the cassation appeal, or inform the second-instance court in writing that he has not found grounds for lodging such an appeal against the second-instance judgment. According to Article 78 § 1 of the Code, the accused who does not have a privately hired lawyer to represent him in the proceedings, may require that a counsel be assigned to the case under the legal aid scheme, if he proves that he cannot afford to pay the costs of his defence without entailing a substantial reduction in his and his family’s standard of living. Under Article 79, the accused person must have an officially appointed counsel if he is minor, or deaf, mute or blind, or if there are justified doubts whether he could be held criminally responsible, or if he does not speak Polish. Further, pursuant to the same provision, a lawyer shall be assigned to represent the accused when the court finds it justified due to circumstances which may render the defence particularly difficult. The accused must have an officially appointed lawyer in the case in which a regional court acts as the first - instance court, if he is accused of a crime within the meaning of the Criminal Code, or is detained on remand. 2. Cassation appeal According to Article 519 of the Code of Criminal Procedure, a cassation appeal may be lodged with the Supreme Court against any final decision of an appellate court, which has terminated the criminal proceedings. Pursuant to Article 523, such an appeal can be lodged only on grounds specified in Article 439 of the Code, which include serious procedural errors, or on the ground of another flagrant breach of law, if the contested judicial decision was affected by such breach. A cassation appeal cannot be lodged only against the sentence. Under Article 526 § 2 the cassation appeal must be drafted and signed by a counsel. 