Communicated on 23 March 2018

FIRST SECTION

Application no. 13606/13 Cezary BORYSŁAWSKI against Poland lodged on 25 March 2013

STATEMENT OF FACTS

The applicant, Mr Cezary Borysławski , is a Polish national, who was born in 1979 and lives in Elbląg .

A. The circumstances of the case

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

On 13 August 2012 the ElblÄ…g Regional Court ( SÄ…d OkrÄ™gowy ) convicted the applicant of drugs trafficking and sentenced him to five years ’ imprisonment and to a fine in the amount of 1,500 Polish zlotys (PLN ‑ approximately 375 euros (EUR)).

On 4 December 2012 the Gdańsk Court of Appeal ( Sąd Apelacyjny ) upheld the first instance court ’ s judgment, after the applicant ’ s appeal.

On an unspecified date the applicant applied to have a legal-aid lawyer granted for the purpose of lodging a cassation appeal with the Supreme Court ( Sąd Najwyższy ).

On 3 January 2013 the Gdańsk Court of Appeal did not allow the applicant ’ s request. It considered that free legal assistance could only be granted on the grounds that the applicant could not bear the legal-aid expenses without suffering a substantial reduction in his standard of living. The court concluded that the applicant had failed to show that his financial situation made it impossible for him to pay for a lawyer. The court considered that the applicant had, at his disposal: PLN 778 (approximately EUR 195) in his deposit account; PLN 793 (app roximately EUR 198) that was going to be transferred to the applicant after the release from prison and PLN 2,000 (approximately EUR 500) transferred to the bank account of the applicant ’ s choice. The court emphasised that the applicant could afford representation by the lawyer of his own choice before the second instance court.

Subsequently, the applicant wrote a letter to the lawyer of his choice offering him PLN 777 for the preparation of a cassation appeal to the Supreme Court.

On 27 February 2013 the advocate declined the offer. He submitted that the estimated cost for such work would be PLN 3,000 (approximately EUR 750) plus any tax applicable.

In unrelated proceeding for a leave in serving a prison sentence, on 14 May 2013 the Gdańsk Regional Curt observed that the applicant had PLN 741 (approximately EUR 185) at his disposal. Therefore, in the court ’ s opinion, he had sufficient means in order to be represented by a lawyer of his own choice.

B. Relevant domestic law

1. Legal assistance

Under Article 83 § 1 of the Law of 6 June 1997 – Code of Criminal Procedure (“the Code”), which entered into force on 1 September 1998, an accused may appoint a lawyer to represent him or her in criminal proceedings.

Pursuant to Article 78 § 1 of the Code, a defendant who does not have a defence counsel of his own choosing may request the trial court to appoint him a legal-aid counsel if he had duly proved that he could not afford legal assistance (i.e. that the costs of such assistance “would entail a substantial reduction in his and his family ’ s standard of living”).

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 defence counsel 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 defence counsel is entitled to represent the defendant in the subsequent proceedings.”

2. Cassation appeal

Under the Code, a party to criminal proceedings can lodge a cassation appeal with the Supreme Court against any final decision of an appellate court which had terminated criminal proceedings. The relevant part of Article 523 § 1 of the Code provides:

“A cassation appeal may be lodged only on the grounds referred to in Article 439 [these include a number of procedural irregularities, such as, for instance, incorrect composition of the trial court; lack of legal assistance in cases where such assistance was compulsory; breach of the rules governing jurisdiction in criminal matters; trying a person in absentia in cases where his presence was obligatory and thus depriving him of an opportunity to defend himself, etc.] or on the ground of another flagrant breach of law provided that the judicial decision in question was affected as a result of that breach. A cassation appeal shall not lie against the severity of the penalty imposed ( niewspółmierności kary ).”

Pursuant to Article 524 § 1 of the Code, a cassation appeal has to be lodged within thirty days from the date of service of the judgment of the appellate court with its written grounds on the party.

Under Article 526 § 2 of the Code, a cassation has to be lodged and signed by an advocate. Therefore, a legal representation for the purposes of cassation proceedings is mandatory.

Under Article 528 § 1 (2) of the Code an interlocutory appeal ( zażalenie ) is not available against a refusal of legal aid for cassation appeal proceedings.

Article 530 § 2 of the Code provides that the president of the court which had given the decision appealed against is competent to decide whether the formal requirements for a cassation appeal had been complied with. If an accused ’ s appeal is not filed and signed by an advocate, it must be rejected on formal grounds. If such an appeal complies with the formal requirements, the case is referred to the Supreme Court.

COMPLAINT

The applicant complains under Articles 6 § 3 (c) and 13 of the Convention about the refusal to grant him legal assistance for the purpose of the preparation and lodging of a cassation appeal to the Supreme Court.

QUESTIONS TO THE PARTIES

In view of the circumstances of the case, in particular, the applicant ’ s conviction, his financial situation, the refusal to grant him legal assistance for the preparation and lodging of a cassation appeal, and the compulsory nature of that professional assistance:

1. Was the applicant ’ s right of access to a court and to defend himself through legal assistance, as secured by Article 6 § 1 and Article 6 § 3 (c) of the Convention, respected?

2. Was the applicant ’ s right to an effective remedy, as secured by Article 13 of the Convention, respected?