FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 28853/02 by Zdzisł aw TRELA against Poland

The European Court of Human Rights ( Fourth Section), sitting on 6 February 2007 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr G. Bonello , Mr K. Traja , Mr S. Pavlovschi , Mr L. Garlicki, Mrs L. Mijovi ć, judges ,

and Mr T.L, Early , Registrar ,

Having regard to the above application lodged on 16 July 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Zdzisław Trela , is a Polish national who was born in 1932 and lives in Sosnowiec . The respondent Government are represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs. The applicant is represented by Ms A. Krasuska-Terrillon, a lawyer practising in Katowice .

A. The circumstances of the case

The facts of the case, as submitted by the parties , may be summarised as follows.

The application concerns civil proceedings for damages instituted by the applicant against an enterprise running a coal mine. The applicant claimed that as a result of the operation of the mine the technical condition of a building he owned had deteriorated badly.

On 22 March 2001 by a judgment of the Sosnowiec District Court the applicant ’ s action was dismissed. The applicant appealed.

On 26 June 2001 the Katowice Regional Court upheld the judgment. On 30 July 2001 the court ’ s judgment together with its written grounds were served on the applicant.

On 14 August 2001 the applicant lodged a request to have a legal-aid lawyer appointed for the purposes of lodging a cassation appeal.

On 29 August 2001 the Katowice Regional Court decided to appoint a legal-aid lawyer for the applicant.

By a decision of 27 September 2001 the Katowice Regional Bar appointed P.K. as the applicant ’ s legal-aid lawyer for the cassation proceedings.

On 26 October 2001 the lawyer lodged a request to have the judgment of 26 June 2001 together with its written grounds served on him.

On 29 October 2001 he lodged a cassation appeal with the Katowice Regional Court , which was competent to carry out a preliminary examination as to the compliance of the appeal with formal requirements provided for by law.

On 30 October 2001 the Katowice Regional Court rejected the applicant ’ s lawyer ’ s cassation appeal as having been lodged outside the prescribed one-month time-limit.

On 16 November 2001 the applicant ’ s lawyer appealed against the decision to reject the cassation appeal. At the same time he requested leave to appeal out of time against the judgment of the appellate court.

On 8 January 2002 his request for leave to appeal out of time was rejected by the Katowice Regional Court for non ‑ compliance with a time ‑ limit.

On 13 June 2002 the Supreme Court rejected his appeal against a refusal of leave to appeal out of time, considering that no appeal lay against the contested decision.

On 10 August 2006 the Supreme Court quashed the decision of the Katowice Regional Court by which the cassation appeal had been rejected, finding that that court had failed to examine sufficiently the circumstances of the lawyer ’ s failure to comply with the time-limit for the lodging of the appeal.

On 19 December 2006 the Supreme Court examined the applicant ’ s cassation appeal and dismissed it as being manifestly ill ‑ founded.

COMPLAIN TS

The applicant complained under Article 6 § 1 of the Convention that his right to a fair hearing had been breached as his legal-aid lawyer had failed to lodge a cassation appeal within the time-limit. He had also failed to submit a request for leave to appeal out of time together with the cassation appeal, as required by law. Such a request was also submitted after a considerable delay. As a result, he could not have his case examined by the Supreme Court.

The applicant also complained under Article 6 about the outcome of the proceedings.

He further complained under Article 1 of Protocol 1 that the outcome of the case had infringed his property rights.

THE LAW

1. The applicant complained under Article 6 § 1 of the Convention that his right to a fair hearing had been breached as his legal-aid lawyer had failed to lodge a cassation appeal against the second-instance judgment within the time-limit provided for by law.

Article 6 § 1 of the Convention, insofar as relevant, reads:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The Government submitted that the applicant could not claim to be a victim of a breach of the Convention, given that his cassation appeal had ultimately been examined by the Supreme Court.

The applicant replied that although, regard being had to the independence of the legal profession, the State could not be held responsible for acts and decision of legal-aid lawyers, it fell to the State to ensure effective access to justice. An effective exercise of the right of access to a court required that the legal-aid system be organised in such a way as to make access to legal aid both transparent and effective. Such guarantees were lacking in the Polish system of legal aid as applied to cassation appeals in civil proceedings. As a result, the applicant could have had his case heard by the Supreme Court only by way of an extraordinary procedure for leave to appeal out of time.

The Court observes that on 10 August 2006 the Supreme Court quashed the decision of the Katowice Regional Court of 30 October 2001 by which the cassation appeal had been rejected. As a result, on 19 December 2006 the Supreme Court examined the applicant ’ s cassation appeal against the second-instance judgment on the merits of the case and dismissed it. Therefore, the Court is of the view that the applicant cannot claim to be a victim of a breach of the Convention.

It follows that this part of the application must be rejected as incompatible ratione personae pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complained under Article 6 about the outcome of the proceedings.

The Court recalls that it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, 29, ECHR 1999-I). Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45-46). Furthermore, there is no indication in the file that the proceedings in question were unfair or arbitrary in any manner.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant further complained under Article 1 of Protocol No. 1 to the Convention that the outcome of the case infringed his property rights.

Article 1 of Protocol No. 1 to the Convention reads:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Court recalls that the deprivation of property referred to in the second sentence of the provision relied on by the applicant is primarily concerned with the formal expropriation of assets for public purposes and that a judicial decision on a claim as to which of two litigants is the owner of certain property according to the rules of private law can never be seen as constituting an unjustified State interference with the property rights of the losing party, as it is the very function of the courts to determine such disputes ( S.Ö., A.K., Ar.K. and Y.S.P.E.H.V. v. Turkey (dec.) 31138/96, 14.9.99, No. 10000 / 82, Dec. 4.7.1983, DR 33, p. 247[257]; and Nos. 8588/79 and 8589/79, Dec. 12.10.1982, D.R. 29, p. 64[82]). The same applies to proceedings, such as in the instant case, in which civil courts rule on the parties ’ private law obligations arising from the law of tort.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. In view of the above conclusions, the application of Article 29 § 3 of the Convention should be discontinued and the case declared inadmissible.

For these reasons, the Court unanimously

Declares the application inadmissible.

T.L. Early Nicolas Bratza Registrar President