FIRST SECTION

DECISION

Application no. 23025/15 Piotr WALKOWIAK against Poland

The European Court of Human Rights (First Section), sitting on 26 November 2019 as a Committee composed of:

Tim Eicke, President, Jovan Ilievski, Raffaele Sabato, judges,

and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 28 May 2015,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Piotr Walkowiak , is a Polish national who was born in 1970 and is currently detained in G Ä™ barzewo prison.

2 . The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, and subsequently by Mr J. Sobczak of the Ministry of Foreign Affairs.

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

4 . The applicant was charged with manslaughter. On 12 December 2012 the Poznań Regional Court ( Sąd Okręgowy ) convicted the applicant and sentenced him to 25 years ’ imprisonment.

5 . On 19 March 2013 the Poznań Court of Appeal ( Sąd Apelacyjny ) upheld the judgment.

6 . On 21 March 2013 the applicant, who had been represented in the proceedings by a legal aid lawyer ( obro Å„ ca z urz Ä™ du ) , was served with the judgment and its written grounds and with an instruction ( pouczenie ) on the time-limit and procedure for lodging a cassation appeal. According to that instruction the time-limit for lodging a cassation appeal was thirty days from the date on which the judgment with written grounds was served. The cassation appeal had to be prepared and signed by a defence lawyer ( obro Å„ ca ). In its point 11 the instruction included a sentence written in bold that the legal aid lawyer who had represented the applicant before the lower courts had no obligation to prepare and sign a cassation appeal.

7 . On 2 April 2013 the applicant ’ s legal aid lawyer P.W. was served with the judgment of the appellate court and its written grounds. Therefore, the time-limit to lodge a cassation appeal was 2 May 2013.

8 . The lawyer P.W. proposed to prepare and lodge a cassation appeal on behalf of the applicant, but he demanded remuneration; he was no longer under the obligation to act as the applicant ’ s legal aid lawyer. The applicant did not agree.

9 . On 5 May 2014 the Poznań Court of Appeal received the applicant ’ s request to appoint him a legal aid lawyer in order to lodge a cassation appeal. On 8 May 2014 the court informed the applicant that the time-limit for a cassation appeal had already expired and that, therefore, a cassation appeal was no longer available.

10 . On 9 June 2014 the Poznań Court of Appeal received again the applicant ’ s request “for a cassation appeal”. The court considered that the applicant ’ s action should be treated as a request for leave to lodge a cassation appeal out of time and ordered him to rectify the procedural shortcomings by submitting a cassation appeal signed by a defence lawyer within seven days.

11 . On 30 June 2014 the Poznań Court of Appeal received a new request from the applicant to appoint him a legal aid lawyer in order to prepare and lodge a cassation appeal. On 2 July 2014 the court informed the applicant that the time-limit for a cassation appeal had expired.

12 . On 14 and 23 July, 8, 13 and 30 August 2014 the Poznań Court of Appeal received the applicant ’ s requests for revision of the judgment, leave to lodge a cassation appeal out of time and for a legal aid lawyer.

13 . On 27 August 2014 the applicant was appointed the same legal aid lawyer, P.W., as in the appellate proceedings. Both the applicant and the lawyer requested the court to appoint another legal aid lawyer for lack of confidence.

14 . On 5 September 2014 the second lawyer, J.E., was appointed. On 16 September 2014 J.E. lodged a cassation appeal with a request for leave to accept a cassation appeal out of time.

15 . On 14 October 2014 the Poznań Court of Appeal (case no. II Aka 32/13) dismissed the request, holding that the lawyer had failed to explain the reasons for the applicant ’ s delay in lodging his cassation appeal. The court noted that the time-limit to lodge a cassation appeal had expired on 2 May 2013 and that the applicant had been properly informed about his rights to lodge a cassation appeal and about the obligations of his lawyer in the relevant time.

16 . On 25 November 2014 the Supreme Court upheld the decision.

17 . Pursuant to Article 78 of the Code of Criminal Procedure ( Kodeks Post ę powania Karnego ) (“the Code”) a defendant who does not have a defence lawyer of his own choice may request the trial court to appoint him a legal aid lawyer if he has duly proved that he could not afford legal assistance.

18 . A grant of legal aid expires upon a judgment of an appellate court. A new decision on legal aid has to be made if the convicted person wishes to institute further proceedings in order to lodge a cassation appeal with the Supreme Court. The relevant part of Article 84 § 3 of the Code provides :

“A legal-aid lawyer appointed under the legal ‑ aid scheme in the cassation proceedings ... shall prepare and sign a cassation appeal ... or shall inform the court, in writing, that he or she has not found any grounds for lodging a cassation appeal ... If a cassation appeal ... is lodged, the legal-aid counsel is entitled to represent the defendant in the subsequent proceedings”.

19 . In accordance with Article 524 § 1 of the Code, a cassation appeal has to be lodged with the appellate court competent to carry out an initial examination of its admissibility, within thirty days from the date of service of the judgment of the appellate court with its written grounds on the party or, if the party was represented, on his or her lawyer.

20 . Pursuant to Article 526 § 2 of the Code, a cassation appeal has to be prepared and signed by a defence lawyer.

COMPLAINT

21 . The applicant complained under Article 6 § 1 of the Convention that he had been denied effective access to a court since he had been in conflict with the first legal aid lawyer and he had been therefore left with no realistic opportunity of having his case brought to and examined by the Supreme Court within the time-limit provided for by law.

THE LAW

22 . Article 6 § 1 of the Convention , which reads, in so far as relevant, as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...”

23 . The Government raised a preliminary objection that the applicant had not exhausted domestic remedies as required by Article 35 § 1 of the Convention. According to the Government, the applicant should have lodged within the initial time-limit of thirty days, as provided in Article 524 of the Code of Criminal Procedure, a request to appoint for him a legal aid lawyer in order to lodge a cassation appeal. They emphasised that the applicant had been properly informed about the procedure for lodging a cassation appeal and the requirement to appoint a legal aid lawyer for lodging a cassation appeal.

24 . In support of their statement, the Government submitted a copy of the instruction which had been served on the applicant at the time when he had received the written grounds of the judgment of the Poznań Court of Appeal (see paragraph 6 above).

25 . As regards the merits of the case, the Government maintained that the applicant ’ s right of access to the Supreme Court had been secured in a concrete and effective manner as he had been properly informed of the relevant domestic law and had not undertaken any procedural steps in order to have the legal aid lawyer appointed by the court.

26 . The applicant did not make any comments on the Government ’ s submissions. He reaffirmed that he had been deprived of access to the Supreme Court.

27 . The Court reiterates that it is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to rely on the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see Łatak v. Poland ( dec. ), no. 520070/08 , § 75, 12 October 2010; Demopoulos and Others v. Turkey ( dec. ) [GC], no. 46113/99 , § 69, ECHR 2010; and Akdivar and Others v. Turkey , 16 September 1996, § 65, Reports of Judgments and Decisions 1996-IV).

28 . Turning to the circumstances of the present case, the Court observes that the Polish Code of Criminal Procedure requires that a person whose conviction has been upheld by an appellate court should be assisted by a lawyer in the preparation of his or her cassation appeal against a judgment given by that court. The Court has already found that the requirement that an appellant be represented by a qualified lawyer before a court of cassation cannot, in itself, be seen as contrary to Article 6 of the Convention. This requirement is clearly compatible with the characteristics of the Supreme Court as the highest court in Poland examining appeals on points of law and it is a common feature of the legal systems in several member States of the Council of Europe (see Kulikowski v. Poland , no. 18353//03, § 60, 19 May 2009; and Staroszczyk v. Poland , cited no. 59519/00, § 128, 22 March 2007).

29 . The Court notes that in the present case the second ‑ instance judgment with the written grounds was served first on the applicant and then, on 2 April 2013, on his lawyer (see paragraph 7 above). The applicant also received a detailed instruction on how to lodge a cassation appeal. The instruction contained information that the legal aid lawyer who had represented the applicant in the proceedings before the court of appeal was not obliged to lodge a cassation appeal (see paragraph 6 above). The applicant did not contest the Government ’ s submission that he had received the instruction in question.

30 . The Court further observes that the applicant did not accept P.W. ’ s proposal to prepare and lodge the cassation appeal for remuneration. However, even though he was properly instructed by the court, he also failed to lodge a request for a legal aid lawyer within the prescribed time ‑ limit for lodging a cassation appeal (see paragraphs 8 and 9 above) (compare and contrast Kulikowski , cited above, §§ 14-16; and SiaÅ‚kowska , v. Poland, no. 8932/05, § 15, 22 March 2007).

31 . The Court further notes that the applicant requested leave from the court to lodge a cassation appeal and for a legal aid lawyer not sooner than in May 2014, that is a year after the time-limit for lodging a cassation appeal had expired. His subsequent request was dismissed by the Poznań Court of Appeal on 14 October 2014 since it lacked proper justification (see paragraphs 10 and 16 above).

32 . Having regard to the foregoing, in particular to the fact that the applicant failed to take steps in accordance with the instruction he had received from the court, that is to lodge within the prescribed time-limit a request for a legal aid lawyer who would lodge a cassation appeal on his behalf, the Court is of the view that the applicant did not provide the Polish authorities with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Sejdovic v. Italy [GC], no. 56581/00, § 43, ECHR 2006 ‑ II).

33 . It follows that the Government ’ s objection is well-founded and that the applicant failed to exhaust the available domestic remedies. Consequently, the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 in fine of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 19 December 2019 .

Renata Degener Tim Eicke Deputy Registrar President