CASE OF BAKOWSKA v. POLAND
Remainder inadmissible;No violation of Art. 6-1
Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1949 and lives in Słupsk. 6. On 5 November 2000 the applicant filed a claim for payment against a housing cooperative of which she was a member. By a judgment of 27 February 2001 the Słupsk Regional Court dismissed the claim. The judgment was upheld on 7 September 2001 by the Gdańsk Court of Appeal. On 21 November 2001 the applicant was served with that judgment together with its written grounds. 7. On 10 December 2001 she filed a request with the Słupsk Regional Court to be granted a legal-aid lawyer for the purpose of lodging a cassation appeal. Her request was subsequently forwarded to the Gdańsk Court of Appeal as the Słupsk court lacked jurisdiction to deal with it. The request was allowed by a decision of 17 December 2001. 8. On 18 December 2001 the decision of 17 December 2001 was served on the local Bar Association. At the same time the Gdańsk Court of Appeal informed the Bar about the date on which the applicant had been served with the second-instance judgment. On 3 January 2002 the Bar Association informed the applicant that a legal-aid lawyer had been assigned to her case. By a letter of 19 January 2002 to the court the lawyer refused to lodge a cassation appeal, finding no grounds to do so. The letter read: “Having examined the file in detail, I have not found grounds for lodging a cassation appeal. The judgment given on 7 September 2001 by the Court of Appeal did not breach any provisions of substantive law. Nor were any provisions of procedural laws violated during the proceedings. The findings of fact made by the courts show without any ambiguity that the applicant had never had the right to a co-operative apartment which could be assimilated to ownership. She had admitted, both before the first-instance and the appellate court, that at the time of the exchange of apartments she had been aware that her right was only assimilable to the rights arising out of a rental contract. (...) It had been open to her to take steps in order to have her right transformed into an ownership-like right, but she had not done so. Hence, the first instance court was right in finding that the defendant housing co-operative was not obliged to pay compensation to the applicant. The appellate court accepted these findings. In these circumstances, a cassation appeal would not offer any prospects of success.” 9. On 23 January 2002 the applicant requested the Gdańsk Court of Appeal to assign a new legal-aid lawyer to her case. 10. On 29 January 2002 the court informed the applicant that she should file a request with the Bar Association for a new lawyer to be appointed. On 4 February 2002 the applicant accordingly submitted her request to the local Bar Association. 11. By a letter of 19 February 2002 the Bar Association dismissed the request, having found that the applicant's previous legalaid lawyer had been entitled to refuse to draft a cassation complaint. 12. On 4 March 2002 the applicant again requested the court to assign a legalaid lawyer to the case. On 15 March 2002 the Gdańsk Court of Appeal informed the applicant that the refusal to lodge a cassation appeal could not justify assigning a new lawyer for the same purpose. 13. Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular, should indicate the consequences of that party's acts or failures to act. 14. 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. 15. Pursuant to Article 117 of the Code, persons exempted from 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. 16. At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a secondinstance court which terminated the proceedings. 17. Under Article 393 4 § 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. 18. Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant: “1. The Bar is established to provide legal assistance, co-operate in protecting a person's rights and freedoms as well as to formulate and apply the law. 2. The Bar is organized as a self-governing association. 3. An advocate whilst executing his/her professional duties is accountable only to the law.” 19. Article 3 of the Act provides as follows: “The general tasks of the professional Bar Council are as follows: 1) creation of conditions for the statutory performance of the Bar's tasks, 2) representation of the Bar and protection of its rights, 3) supervision over the observance of the rules regulating the practice of the profession, 4) development of professional skills and training of advocates, 5) determination and promotion of professional ethics and ensuring their observance, 6) management (...) of the Bar's assets.” 20. Article 28 of the Act reads: “1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council. 2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.” 21. Under Article 21 § 3 of the Act, an advocate shall provide legal aid services in the jurisdiction of a court where he or she has their office. 22. Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court. 23. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under the legalaid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney, terminate the representation, or notify the refusal to the body which appointed him or her. 24. 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. It replied to the question in the positive. 25. The court observed 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. Nevertheless, there was no comprehensive and coherent regulation of legal aid available under Polish law. 26. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism. However, a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legalaid lawyers' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. 27. As a result, the scope of legalaid lawyers' obligations to provide a party to the proceedings with “legal aid” in civil proceedings was unclear. In particular, the provisions on lawyers' legalaid obligations in connection with cassation proceedings before the Supreme Court lacked clarity. The application of the relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts. 28. The court observed that the issue of the possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. 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. 29. The constitutional role of the Supreme Court, the highest judicial authority, was also an argument in favour of the conclusion that a legalaid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had rejected such requests and in others it had accepted them. However, it did not prevent the parties from having recourse to this course of action. 30. Pursuant to Article 169 of the Code of Civil Procedure, a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time-limit; this measure shall be performed simultaneously with the lodging of the request. 31. Article 133 § 3 of the Code of Civil Procedure reads, in so far as relevant: “If a legal representative ... has been appointed in a case, the court correspondence shall be served on [him or her]. 32. However, in a number of decisions the civil 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 submitted by a hitherto non-represented party and its subsequent grant or refusal. That time-limit starts to run on the date when the party was served with the judgment of the appellate court together with its written grounds, also where the request for legal aid has subsequently been granted (the Supreme Court's decisions of 15 April 1997, II CZ 35/97; 18 April 1997, I PKN 120/97; 10 September 1998, II UZ 101/98; 6 July 1999, II UKN 332/99; 9 August 2000, I CKN 747/00; 23 March 2001; II UZ 17/01; 19 June 2001, I PZ 33/01; 27 September 2001, II UZ 51/01; 28 November 2001, II UZ 85/01, 15 December 2005, I UZ 33/05). 33. 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 thirty days counted from the day of service of the judgment on the party. A request to appeal out of time should therefore be submitted within seven days from the date on which the 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).