Resolution CM/ ResDH (2011)239 [1]

Execution of the judgments of the European Court of Human Rights

Tabor and 6 other cases against Poland

(Tabor, application No. 12825/02, judgment of 27/06/2006, final on 27/09/2006

Biziuk , application No. 15670/02, judgment of 15/01/2008, final on 15/04/2008

Bobrowski , application No. 64916/01, judgment of 17/06/2008, final on 01/12/2008

Orzechowski Mirosław , application No. 13526/07, judgment of 13/01/2009,

final on 13/04/2009

Zagawa , application No. 76396/01, judgment of 15/01/2008, final on 15/04/2008

Zaniewski , application No. 14464/03, judgment of 15/01/2008, final on 15/04/2008

R.D., application No. 29692/96 , judgment of 18/12/2001, final on 18/03/2002)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern denial of access to the Supreme Court on the ground of the absence of reasons for the dismissal of requests for legal aid, which deprived the applicants of the possibility to lodge a cassation appeal and also, in the cases of Tabor and Zaniewski , the delay in these dismissals (violations of Article 6, paragraph 1) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that within the time-limit set the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

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

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), 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 of these cases.

Appendix to Resolution CM/ ResDH (2011)239

Information on the measures taken to comply with the judgments in the cases of

Tabor and 6 other cases against Poland

Introductory case summary

These cases concern violations of the applicants ’ right to a fair trial following second-instance courts ’ unreasoned refusal to grant them legal aid, given between 1996 and 2007 (violations of Article 6§1). In the Tabor and Zaniewski cases the relevant decisions were issued after the time-limit for filing an appeal had passed.

The European Court noted that under domestic law, the grant of legal aid depended on the petitioners ’ financial situations and their ability to afford court fees. Therefore, particularly in circumstances where the applicants were unemployed and claiming compensation for unlawful termination of employment contracts, the principle of fairness required the courts to give reasons for rejecting the applicants ’ requests for legal aid (see §45 of the Tabor judgment). In addition, as professional legal assistance in cassation proceedings is obligatory under domestic law, a decision refusing to grant legal aid, given outside the time limit for lodging an appeal, deprived the applicants of any realistic chance to appeal before the Supreme Court.

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Tabor (12825/02)

-

2 000

315

2 315 EUR

Paid within

the time-limit

Biziuk (15670/02

-

2 000

100

2 100 EUR

Paid within

the time-limit

Bobrowski (64916/01)

-

2 000

150

2 150 EUR

Paid within

the time-limit

Zagawa (76396/01)

-

2 000

650

2 650 EUR

Paid within

the time-limit

Zaniewski (14464/03)

-

2 000

-

2 000 EUR

Paid within

the time-limit

Orzechowski Mirosław (13526/07)

-

2 000

-

2 000 EUR

Paid within

the time-limit

R.D. ( 29692/96 )

-

2 000

1000

3 000 EUR

Paid within

the time-limit

b) Individual measures

Following the judgments of the European Court , the applicants have the right to make an application to re ‑ establish the time-limit for lodging cassation appeals. Consequently, the Committee of Ministers considers that no other individual measure is required.

II. General measures

On 19/04/2010, a reform of the Code of Civil Procedure entered into force. According to the new Article 117§6, if a request for legal aid is lodged for the first time in appellate or cassation proceedings, the appellate or cassation court can either grant the request or refer it for re-examination to the first-instance court. In the case of a referral, where the first-instance court rejects the request for legal aid, it must give reasons for its decision, which can then be appealed (Articles 357§1 and 394§1 of the Code of Civil Procedure).

The judgment in Tabor was published on the website of the Ministry of Justice and disseminated to judges.

III. Conclusions of the respondent state

The government considers that no individual measure is required, apart from the payment of the just satisfaction, that the general measures adopted will prevent similar violations and that Poland has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 2 December 2011 at the 1128th Meeting of the Ministers’ Deputies