CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 9 avril 2013

.s800EAC49 { font-size:12pt } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sE0372AB5 { width:21.8pt; text-indent:0pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sBF0FE613 { width:36pt; text-indent:0pt; display:inline-block } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6477A72F { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .sA1CDB767 { margin-top:6pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s281358E1 { margin-top:12pt; margin-left:21.25pt; margin-bottom:12pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sFD4D42B6 { margin-top:12pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s8FA53EDF { margin-top:6pt; margin-left:21.25pt; margin-bottom:42pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sC769D9E0 { margin-top:42pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sC443675D { margin-top:36pt; margin-bottom:30pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3C0142D3 { margin-top:30pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s507703F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7714A00D { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s66CC5A41 { width:26.02pt; display:inline-block } .s87818EE6 { width:187.95pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s7B0354FA { width:193.28pt; display:inline-block }   FOURTH SECTION DECISION Application no. 1735/09 Leokadia OWCZARZAK against Poland The European Court of Human Rights (Fourth Section), sitting on 9   April   2013 as a Committee composed of:   George Nicolaou, President,   Zdravka Kalaydjieva,   Faris Vehabović, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 14 January 2009, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Leokadia Owczarzak, is a Polish national, who was born in 1950 and lives in Wodzisław ś ląski. 2.     The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz of the Ministry of Foreign Affairs. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant instituted civil proceedings against the Strzelno Community seeking compensation for administrative inaction and loss of lodging and health impairment. 5.     The first instance judgement was delivered by the Bydgoszcz Regional Court (Sąd Okręgowy) on 12 December 2007. The applicant appealed. On 28 July 2008 the Gdańsk Court of Appeal (Sąd Apelacyjny) served on her its judgement of 20 June 2008. The time-limit for lodging a cassation appeal expired on 28 October 2008. 6.     On 3 September 2008 the applicant requested assistance of a legal aid lawyer for the purpose of cassation proceedings before the Supreme Court. 7.     On 8 September 2008 the Gdansk Court of Appeal allowed the applicant’s request. 8.     On 15 September 2008 the Regional Bar informed the Court of Appeal that legal-aid lawyer J.M.-W. had been assigned to the case. 9.     On 6 October 2008 the lawyer deposited the written opinion dated 29   September 2008 in which she explained why she considered that there were no grounds on which the cassation appeal could be based. As   transpires from the written grounds of the opinion, the applicant was informed of this opinion by her legal-aid lawyer during an earlier phone conversation before the elapse of the time-limit for lodging the cassation appeal. 10.     Having been informed about the lawyer’s refusal the applicant lodged the cassation appeal prepared by herself on 27 September 2008. 11.     On 21 October 2008 the Gdansk Court of Appeal rejected the applicant’s appeal on the ground that it had not been lodged by a lawyer, as required by the law. B.     Relevant domestic law 12.     At the material time a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a final judicial decision of a second ‑ instance court which terminated the proceedings. 13.     According to Article 871 the party in the proceedings before the Supreme Court has to be represented by an advocate or legal advisor. 14.     Under Article 3985 § 1 of the Code of Civil Procedure a cassation appeal has to be lodged with the court that had given the relevant decision within two month from the date on which the decision with its written grounds was served on the party concerned. 15.     Article 3983 § 1of the Code lists the grounds on which a cassation appeal could be lodged. It read as follows: “The cassation appeal may be based on the following grounds: 1)     a breach of substantive law by its erroneous interpretation or wrongful application; 2)     a breach of procedural provisions, if that defect could significantly affect the outcome of the case.” 16.     Article 3983 § 3of the Code provides that the cassation appeal cannot be based on the objections concerning the factual findings or the assessment of evidence. 17.     Article 3986§ 2 read as follows: “A second-instance court rejects in a hearing held in camera a cassation appeal lodged after a prescribed time-limit, (...) or which is inadmissible on other grounds.” COMPLAINTS 18.     The applicant complained that she had been denied access to the Supreme Court in breach of Article 6 § 1 of the Convention. 19.     The applicant complained that the domestic authorities had wrongly assessed the evidence, and as a result, had failed to establish the facts of the case correctly. They had wrongly applied domestic law and had given erroneous judgements. THE LAW A.     Complaint concerning access to a court 20.     The applicant complained that she had been denied access to the Supreme Court in breach of Article 6 § 1 of the Convention, which in so far as relevant reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 21.     The Government alleged that the applicant could have made use of a number of domestic remedies available under the Polish law, in particular she could lodge a civil claim against her legal-aid lawyer seeking compensation for the alleged damage she suffered as a result of the lawyer’s refusal to lodge the cassation appeal or her alleged misconduct. 22.     The Court notes that the Government already relied on identical argument in other cases (e.g. Bąkowska v. Poland , no. 33539/02, § 35-37, 12   January 2010 and Smyk v. Poland , no. 8958/04, § 44-46, 28 July 2009). In those cases the Court rejected their objection mainly because the remedies referred to were merely of a retrospective character, making them insufficient to ensure effective access to a court competent to determine the applicant’s rights and obligations. This conclusion equally applies to the present case. In view of the foregoing, this part of the Government’s objection should be dismissed. 23.     Secondly the Government submitted that the applicant failed to act diligently. She had received the judgment of the appellate court on 28   July 2008. Under the applicable provisions of the domestic law the two   month time limit for lodging a cassation appeal started to run from that day. However, she had submitted her request for legal-aid lawyer 37 days later, on 3   September 2008. The time-limit within which the cassation appeal was to be submitted to the court was to expire on 28   September 2008. The court having received the applicant’s request processed it very quickly as it had taken only 5 days to grant her the legal aid. Subsequently, the Gdansk Bar Association assigned the case to a lawyer within seven days, on 15   September 2008. The lawyer had examined the case within 14 days and had given a reasoned legal opinion on the prospects of success of a cassation appeal. 24.     The Court has already had occasion to set out at length the relevant principles derived from its case-law in this area ( Bąkowska v. Poland , cited above § 44-48, Siałkowska v. Poland , no.   8932/05, §§   99-107, 22   March 2007; Staroszczyk v. Poland , no. 59519/00, § 121-129, 22 March 2007; Smyk v. Poland , no.   8958/04, §§   54-61, 28   July 2009). It adopts those principles for the purposes of the instant case. 25.     The same question arises in the context of the present case as that examined by the Court in the cases referred to above, namely whether the applicant was deprived of access to the Supreme Court. 26.     The Court observes that it has already dealt with this question in the context of civil procedure. It found that where a party to proceedings was represented by a lawyer, the procedural time ‑ limits set by the Code of the Civil Procedure started to run on the date of the service of the judicial decision on the lawyer. Under the provisions applicable at the material time the situation was significantly different where a party did not have legal representation before the second instance court, as in the present case, and was granted legal aid only after the second ‑ instance judgment had been given and served on him or her. In such situations the time-limit for lodging a cassation appeal started to run from the date on which the judgment of the second instance court was served on the non-represented party. Thus, a legal-aid lawyer’s refusal to prepare an appeal did not trigger the running of the time-limit de novo . 27.     That approach was regarded by the Court as being incompatible with Convention standards, save for rather rare situations where the refusal of the legal-aid lawyer was notified to the applicant well before the deadline was due to expire (see Smyk v. Poland , referred to above, §§ 63 ‑ 65). 28.     Turning to circumstances of the present case the Court notes that the applicant had received the judgment of the appellate court, together with its written grounds, on 28 July 2008. It was on that date that the two month time ‑ limit for lodging a cassation appeal started to run. 29.     However, the Court observes that she had submitted her request for a legal-aid lawyer five weeks later, on 3 September 2008. It has not been shown or even argued that this delay had been justified by any special circumstances for which the applicant could not be responsible. The time ‑ limit within which the cassation appeal was to be submitted to the court was to expire on 28 September 2008. The court on receipt of the applicant’s request processed it very quickly as it had taken only five days to grant her the legal aid. 30.     Having regard to the delay with which the applicant availed herself of her procedural rights, the Court is of the view that she failed to display diligence which should normally be expected from a party to civil proceedings (see Bąkowska v. Poland, cited above, §§ 53-54, Staniszewski v.   Poland , no. 28157/08, 5 October 2010, §§ 32 ‑ 33). It also notes that the applicant received a reasoned legal opinion prepared by the legal ‑ aid lawyer explaining grounds on which the lawyer had considered that there were no legal grounds on which to prepare a cassation appeal against the judgment. 31.     It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35§§   3 and 4 of the Convention. B.     Remaining complaints 32.     The applicant complained that the domestic authorities had wrongly assessed the evidence and, as a result, had failed to establish the facts of the case correctly and had given erroneous judgments. 33.     The Court reiterates that, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Schenk v. Switzerland , 12   July 1988, §§   45-46, Series   A no.   140, and García Ruiz v. Spain [GC], no.   30544/96, ECHR 1999-I, §   28). 34.     It follows, even assuming that in the circumstances of the present case the applicant can be said to have exhausted the domestic remedies, that this complaint is manifestly ill-founded and must be rejected in accordance with Article   35 §§   3 and   4 of the Convention. For these reasons, the Court unanimously Declares inadmissible the application.   Fatoş Aracı   George Nicolaou   Deputy Registrar   President