CASE OF KRAMARZ v. POLAND
Violation of Art. 6-1
Giovanni Bonello;Ján Šikuta;Lech Garlicki
6. The applicant was born in 1953 and lives in Dębica. 7. The applicant was a party to civil proceedings concerning division of co-ownership of a certain plot of land. The proceedings were instituted in 2001. On 12 February 2003 the Lwówek Slaski District Court awarded the plot to a certain M.K. and ordered that a certain amount should be paid to the applicant. 8. On 9 October 2003 the Jelenia Góra Regional Court partly amended the firstinstance decision increasing the amount awarded to the applicant and dismissed the remainder of his appeal. 9. On 14 October 2003 the applicant requested to be served with written grounds to that judgment. On 12 December 2003 the court served him with them and the thirtyday timelimit for lodging of a cassation appeal started to run. 10. By a letter of 12 December 2003, served on the court on 18 December 2003, the applicant requested that a legalaid lawyer be assigned to the case to prepare a cassation complaint. On the same day the court requested the applicant to submit a statement of his financial situation in order to be able to examine his request. 11. On 6 January 2004 the Jelenia Góra Regional Court granted the applicant's request for legal aid. On 13 January 2004 the Wałbrzych Bar Association assigned a legalaid lawyer to the case. 12. On 16 and 20 January 2004 the applicant and the lawyer had a telephone conversation. In a letter to the lawyer dated 20 January 2004 the applicant explained in a detailed manner the legal context of the case and the reasons for which he was of the view that a cassation complaint offered prospects of success. 13. In a letter to the court dated 22 January 2004 the lawyer explained in detail why she saw no grounds on which to prepare a cassation complaint in the applicant's case. 14. On 3 March 2004 the legal-aid lawyer sent a copy of his opinion to the applicant. It was served on the applicant on 8 March 2004. On 8 March 2004 also the court sent the lawyer's opinion to the applicant. 15. On 30 August 2007 the applicant requested the Lwówek Slaski District Court to exempt him from costs of making copies of documents in the case-file. On 6 September 2007 the Lwówek Slaski District Court dismissed the applicant's request as unfounded. The court established that the applicant owned property of 4,16 ha and the proceedings had ended in 2003 so he had enough time to collect founds for that purpose. On 12 October 2007 the Jelenia Góra Regional Court dismissed the applicant's interlocutory appeal. 16. The relevant domestic law and practice concerning the procedure for lodging cassation appeals with the Supreme Court against judgments of the appellate courts are stated in the Court's judgments in the cases of Siałkowska v. Poland, no. 8932/05, 22 March 2007; Staroszczyk v. Poland, no. 59519/00, 22 March 2007; Smyk v. Poland, no. 8958/04, 28 July 2009; Zapadka v. Poland, no. 2619/05, 15 December 2009; Bąkowska v. Poland, no. 33539/02, 12 January 2010. 17. In particular, 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 legal-aid 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; 18. 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.