Resolution CM/ ResDH ( 2013) 191 Laskowska against Poland

Execution of the judgment of the European Court of Human Rights

(Application No. 77765/01, judgment of 13/03/2007, final on 13/06/2007)

(Adopted by the Committee of Ministers on 26 September 2013 at the 1179th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)868 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

Information about the measures to comply with the judgment in the case

Laskowska against Poland

Case description

Laskowska , application No. 77765/01, judgment of 13/03/2007, final on 13/06/2007

The case concerns the lack of effective access to the Supreme Court on account of the Regional Court ’ s flawed interpretation of domestic law (Article 6 § 1 of the Convention).

The applicant requested legal aid in order to lodge a cassation appeal against the Katowice Regional Court ’ s judgment of 02/02/2000 in proceedings concerning her entitlement to financial maintenance, following her divorce. However, due to lack of clarity on the possibility to appeal decision in this type of proceedings the Regional Court incorrectly instructed her that a cassation appeal was not provided for in her case and dismissed her application for legal aid. The applicant lodged a cassation appeal herself, but in September 2000 the Regional Court rejected it inter alia because of compulsory legal representation requirement in such proceedings. Following the applicant ’ s appeal against this decision, in January 2001 the Supreme Court dismissed it on formal grounds, indicating, however, that contrary to the view of the Regional Court, a cassation appeal was allowed in this case, as it concerned the issue of entitlement to maintenance and not the issue of the amount of maintenance, which was excluded from the Supreme Court ’ s jurisdiction.

The European Court found that the applicant had been deprived of effective access to the Supreme Court on account of the Regional Court ’ s flawed interpretation of domestic law, the latter having refused her legal assistance on the basis that a cassation appeal had not been available in her case. Since the Regional Court had not examined the merits of the applicant ’ s request for legal aid, she could not, therefore, be blamed for not having appointed a counsel to represent her.

I. Individual measures

The European Court awarded the applicant with just satisfaction in respect of non-pecuniary damage. Following the European Court ’ s judgment the applicant had the possibility to re-apply for legal-aid and for leave to lodge a cassation appeal out of time. However, she did not undertake any further steps and the judgment in the domestic proceedings became final.

1. Payment of just satisfaction.

Laskowska v. Poland, Case No. 77765/01

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2 000 EUR

1 150 EUR

3 150 EUR

Paid on 18/07/2007

In these circumstances, no other individual measure appears necessary.

II. General measures

The violation resulted from the Katowice Regional Court ’ s erroneous assumption that a cassation appeal was not available in the applicant ’ s case in the light of the provisions of the Code of Civil Procedure in force in material time. However, since the facts of the case, with a view to clarifying the procedure the provisions of the Code concerning the procedure for lodging a cassation appeal have been amended.

Previously, article 393 of the Code of Civil Procedure (in the version applicable until 30 June 2000), provided that no cassation appeal could be lodged in cases relating to the amount of financial maintenance awarded. Following the amendments to the Code, as from 1 July 2000 no cassation appeal may be lodged with the Supreme Court in any cases relating to amounts of maintenance (a rule contained in article 3921§2(1) and from 6 February 2005 – in article 3982§2(1)). Accordingly, there is no longer the possibility for misinterpretation of the provision on the access to the Supreme Court in cases similar to that of the applicant.

The European Court ’ s judgment in Laskowska case was translated and published on the website of the Ministry of Justice, it was also sent to the presidents of the courts of appeal with a request for its further dissemination among judges. The judgment of the European Court was also included into the curricula of trainings for judges and prosecutors.

In these circumstances, no other general measure appears necessary.

III. Conclusions of the responding S tate

The government considers that further individual measures are not necessary in the present case and that the general measures adopted, in particular legislative changes, publication and dissemination of the judgment of the European Court of Human Rights will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 6 § 1 of the Convention.