117 6th meeting – 10 July 2013

Appendix 1 6

( Item H46-1 )

Resolution CM/ ResDH (2013) 147

Seven cases against Poland

Execution of the judgments of the European Court of Human Rights

Case

Application No.

Judgment of

Final on

SIAŁKOWSKA

8932/05

09/07/2007

JEDRZEJCZAK

56334/08

03/11/2011

04/06/2012

KOCUREK

20520/08

26/10/2010

26/10/2010

KRAMARZ

34851/07

05/10/2010

05/10/2010

ZEBROWSKI

34736/06

03/11/2011

04/06/2012

SUBICKA No. 2

34043/05+

21/09/2011

ZAPADKA

2619/05

15/03/2010

(Adopted by the Committee of Ministers on 10 July 2013 at the 1176th 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 judgments transmitted by the Court to the Committee in the above cases and to the violations 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 has been a 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 the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)570 );

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

DECLARES that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Action Report [1]

Information about the measures to comply with the judgments

in the Siałkowska against Poland group of cases

Case description

Siałkowska , Application No. 8932/05 , judgment of 22/03/2007, final on 22/06/2007

Jędrzejczak , Application No. 56334/08, judgment of 11/01/2011, final on 11/04/2011

Kocurek , Application No. 20520/08, judgment of 26/10/2010, final on 26/01/2011

Kramarz , Application No. 34851/07, judgment of 05/10/2010, final on 05/01/2011

Żebrowski , Application No. 34736/06, judgment of 03/11/2011, final on 03/02/2012

Subicka (No. 2), Application No. 34043/05, judgment of 21/06/2011, final on 21/09/2011

Zapadka , Application No. 2619/05, judgment of 15/12/2009, final on 15/03/2010

Staroszczyk , Application No. 59519/00, judgment of 22/03/2007, final on 22/06/2007

The above cases concern violations of the applicants ’ right of access to the Supreme Court on account of the lack of timely information in a proper form on the refusal of their legal-aid lawyers to assist them in lodging cassation appeals in civil proceedings, effectively depriving them of access to the Supreme Court (violations of Article 6 § 1 of the Convention).

The case Subicka (No. 2) concerns a failure of a legal-aid lawyer to inform the applicant on her refusal to prepare cassation appeal to the Supreme Administrative Court.

The European Court, while examining the circumstances of the cases, had regard to the specific features of the Polish legal aid system and observed that the refusal of legal aid by a lawyer should meet certain criteria. In this respect , the applicable regulations laid down no time-limit for lawyers to inform clients of their intention not to submit a cassation appeal, nor did they oblige lawyers to prepare legal opinions on the prospect of such appeals. In the above - mentioned cases, the applicants ’ right to access to the Supreme Court was violated on account of a short time left for the applicants to prepare a cassation appeal after they were informed by a legal-aid lawyer on no reasonable prospects of such appeal or due to the lack of such reasoned information in writing.

The European Court awarded the applicants with just satisfaction in respect of non-pecuniary damage.

Siałkowska , Application No. 8932/05 , judgment of 22/03/2007, final on 22/06/2007

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

4,000 EUR

-

4,000 EUR

Paid on 17/08/2007

Jędrzejczak , Application No. 56334/08, judgment of 11/01/2011, final on 11/04/2011

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1,000 EUR

Paid on 21/03/2011

Kocurek , Application No. 20520/08, judgment of 26/10/2010, final on 26/01/2011

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1,000 EUR

Paid on 14/01/2012

Kramarz , Application No. 34851/07, judgment of 05/10/2010, final on 05/01/2011

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

1,000 EUR

3,093 EUR

4,093 EUR

Paid on 15/12/2010

Żebrowski , Application No. 34736/06, judgment of 03/11/2011, final on 03/02/2012

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

1,500 EUR

-

1,500 EUR

Paid on 23/07/2012

Subicka (No. 2), Application No. 34043/05, judgment of 21/06/2011, final on 21/09/2011

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1,000 EUR

Paid on 13/12/2011

Zapadka , Application No. 2619/05, judgment of 15/12/2009, final on 15/03/2010

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

2,000 EUR

-

2,000 EUR

Paid on 09/06/2010

Staroszczyk , Application No. 59519/00, judgment of 22/03/2007, final on 22/06/2007

Pecuniary damage

Non- pecuniary damage

Costs and expenses

Total

-

4,000 EUR

1,331.24 EUR

5,331.24 EUR

Paid on 02/08/2007

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 (for example to lodge a cassation appeal), this measure shall be performed simultaneously with lodging a request. The request should be lodged within 7 days from the date the circumstances preventing a party from performing a procedural measure ceased to exist. Retrospective leave, after a year from the expiry of the prescribed time-limit, may be granted only in exceptional cases.

In these circumstances, no other individual measure appears necessary.

With the view to avoid ing new similar violations , the Polish authorities adopted, on 17 December 2009, the Law amending the Code of Civil Procedure (entered into force on 18 April 2010).

According to Article 118 § 5 of the Code of Civil Procedure , if an advocate or a legal counsel, appointed in connection with the cassation appeal proceedings, finds no grounds to file an appeal, he/she shall notify thereof in writing the party and the court immediately and not later that within two weeks since the notification of his/her appointment. An advocate or a legal counsel shall append to the notice his/her opinion about the lack of the grounds to file an appeal. This opinion shall not be attached to the case-file and shall not be served upon the other party. Article 118 § 6 introduces a legal supervision of the opinions by a court, which shall notify the competent organ of the self-governing professional associations if the opinion has not been prepared with due diligence. In such a case , the competent regional bar council or regional chamber of legal counsels shall appoint another advocate or legal counsel.

The Law of 17 December 2009 also introduced new rules as to the expiry of a time-limit for lodging a cassation appeal. Thus, according to a newly introduced Article 124 § 3 of the Code of Civil Procedure, in the event of the appointment of an advocate or a legal counsel upon a motion submitted before the expiration of the time-limit for lodging a cassation appeal by the party which correctly requested the service of the judgment with reasons, the trial court shall serve upon the appointed advocate or legal counsel the judgment with the reasons ex officio and the time-limit for lodging of the cassation appeal shall run from the date of the service of the judgment with reasons upon the representative.

Article 124 § 4 of the Code of Civil Procedure further provides that in case of rejection of the motion for the appointment of an advocate or a legal counsel in cassation proceedings, the time-limit for lodging a cassation appeal shall start to run from the day of the service of this decision on the party and if the decision was adopted in public – from the date of its announcement. However, if the party lodged an interlocutory appeal within the proscribed time-limit, the time-limit for lodging a cassation appeal starts from the service on the party of the decision dismissing the interlocutory appeal, and if the decision of the court of the second instance was adopted in public – from the date of its announcement.

It should be underlined that already in the amendment to the Code of Civil Procedure of 22 December 2004 that came into force on 5 February 2005, a time for lodging the cassation appeal was changed from 30 days to two months.

Moreover, the Supreme Bar Council, in its resolution no. 61/2007 of 15 September 2007, held that the analysis of the case files in order to verify whether there exist grounds for lodging a cassation appeal should be conducted by an advocate without undue delay. Refusal to prepare a cassation appeal shall be prepared in form of a written opinion served to the client and a Dean of a local Bar Council also without undue delay. An advocate is obliged to notify the court on issuing of this kind of opinion and its sending to the client and a Dean of a local Bar Council.

Based on a general rule of the lawyers ’ liability for incorrect or negligent conduct, a party may seek compensation before a civil court against legal aid lawyer, who refused to lodge a cassation appeal. This rule was confirmed by the Supreme Court ’ s judgment of 18 April 2002 (case N o. II CKN 1216/00) and Gdańsk Court of Appeal judgment of 25 November 2005 (case N o. I ACa 1092/05).

The Court`s judgments in cases Siałkowska , Staroszczyk and Żebrowski were translated and published , inter alia , on the website of the Ministry of Justice. The judgments of the Court were also included in 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 g overnment 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.

[1] Information submitted by the Polish authorities on 16 May 2013.