AS TO THE ADMISSIBILITY OF
Application no. 12825/02
by Józef TABOR
The European Court of Human Rights (Fourth Section), sitting on 24 January 2006 as a Chamber composed of:
Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 11 January 2001,
Having regard to the partial decision of 28 May 2002,
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 applicant, Mr Józef Tabor, is a Polish national who was born in 1952 and lives in Kraków. He is represented before the Court by Mr Z. Cichoń, a lawyer practising in Kraków.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In July 1993 the applicant was employed at the refinery “Trzebinia” as director of a department. From 1993 to 1997 the conditions of his contract of employment were changed several times. On 30 September 1997 the refinery terminated the applicant’s contract.
On 7 October 1997 the applicant lodged with the Katowice Regional Court a compensation claim against the refinery for allegedly unlawful termination of his contract. He also claimed reinstatement. By a decision of 3 December of 1997 the Katowice Regional Court considered that it was not competent to examine the applicant’s claims and transmitted the case to the Katowice District Labour Court.
By a judgment of 4 December 1998 the Katowice District Labour Court ordered the refinery to pay to the applicant compensation of 5,008.74 PLN for unlawful termination of the employment contract. The compensation corresponded to 3 months’ remuneration. The court dismissed the remaining claims.
On 16 December 1998 the Katowice District Court issued an order making the judgment of 4 December 1998 immediately enforceable.
Both parties to the proceedings appealed against the first-instance judgment. By a judgment of 18 November 1999 the Katowice Regional Court dismissed their appeals.
On 26 November 1999 the applicant requested the Katowice Regional Court for legal aid in cassation proceedings, having regard to his financial situation and to the fact that he had been unemployed from November 1997 to May 1999 due to the termination of his employment contract by the defendant. He also submitted that from May 1999 he had been receiving 750 PLN of net salary [EUR 180 approx.]. He enclosed documents to confirm the period of his unemployment and his earnings. In December 1999 the applicant, having received no response of the Katowice Regional Court, lodged a cassation appeal himself.
By a decision of 17 January 2000 the Katowice Regional Court dismissed his request for legal aid for the purpose of instituting the cassation proceedings without giving written reasons for it.
On the same day, the Katowice Regional Court rejected the applicant’s cassation appeal as not having been lodged by a lawyer as required by applicable law.
The applicant lodged an appeal against these decisions with the Supreme Court. He also requested that retrospective leave to lodge a cassation appeal out of time be granted to him. He further asked that court to appoint a lawyer for him in order to assist him in the preparation of this appeal. The applicant argued that the Regional Court had failed to deal within the time-limit with his request for legal aid. This had forced the applicant to lodge the cassation appeal himself. The fact that the cassation appeal had been rejected, combined with the unmotivated refusal of legal aid, had made it impossible to have his interests protected and his arguments properly presented to the court.
By a decision of 25 May 2000 the Supreme Court dismissed his appeal against the decision rejecting the cassation on formal grounds, observing that the law clearly provided that the cassation appeal could only be lodged by a lawyer. The Supreme Court further refused to entertain the appeal insofar as it was related to the refusal of legal aid, observing that under applicable legal provisions an appeal to the Supreme Court against a decision of the Court of Appeal was not available, except against a decision to reject a cassation appeal.
B. Relevant domestic law and practice
Article 393² § 1 of the Code of Civil Procedure, applicable at the relevant time, required that a cassation appeal be filed by an advocate or a legal adviser.
Under Article 3934 § 1 of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within one month from the date on which the decision was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal advisor would be rejected.
Pursuant to Articles 117 of the Code, persons exempted from the court fees may request the court to grant them legal aid. The court would then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal advisor to the claimant’s case.
The applicant complains that the court’s refusal to grant him legal assistance in connection with the preparation of a cassation appeal to the Supreme Court infringed his right to a fair trial and resulted in his irrevocably losing an opportunity to institute cassation proceedings.
1. As to the compliance with the six-month time limit
The Government submit that the final decision in the first set of proceedings was given by the Supreme Court on 25 May 2000, while the application was lodged with the Court on 11 January 2001. They argue that the application should therefore be rejected for failure to satisfy the six-month time-limit requirement.
The applicant submits that the decision in question was delivered during a court session held in camera and that he was not aware of its content until the decision was served on him on 8 November 2000.
The applicant has submitted an envelope stamped with date: “2 November 2000” in which the relevant decision was mailed by the registry of the Supreme Court. The Court therefore considers that the application has not been introduced out of time and cannot therefore be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
2. As to the substance
The applicant complains that the court’s refusal to grant him legal assistance in connection with the preparation of a cassation appeal to the Supreme Court infringed his right to a fair trial and resulted in his irrevocably losing an opportunity to institute cassation proceedings, thus constituting a breach of Article 6 § 1 of the Convention.
Article 6 reads, in so far as relevant:
“1. In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government first of all stress that the requirements of fairness are not necessarily the same in cases concerning the determination of civil rights and obligations as in cases concerning the determination of criminal charge (Dombo Beheer B.V. v. Netherlands judgment of 27 October 1993, § 32). However, Article 6 § 1 provides a guarantee for persons seeking legal assistance before the national courts, although a less extensive one than in criminal cases. The question of legal assistance should however be seen as an element of the right of access to a court, rather than the right to a fair hearing. In this context, the means by which a State ensures effective access to civil courts fall within its margin of appreciation (Airey v. Ireland judgment of 9 October 1979, § 26).
Further, the Government argue that legal aid is required to ensure the right of access to a court in civil cases only in situations in which a person cannot plead his case effectively himself or when the law makes legal representation compulsory. But even in such cases legal aid is not required in connection with all kinds of civil proceedings. For this reason, the right enunciated in the Court’s judgments concerning civil cases could not be comparable in its comprehensiveness to that guaranteed under Article 6 § 3 (c). This also follows from the fact that the rights guaranteed by Article 6 § 1 must be determined by reference to the particular facts and circumstances of an individual case. In consequence, the Government assert that the weight of the problems involved in the present case, concerning a claim for a reinstatement at work and compensation claim for allegedly unlawful termination of contract, must be distinguished from applications, for example, in cases regulating civil status and family relationships.
Thus, in the opinion of the Government, the applicant’s argument that the refusal to grant him legal aid in the cassation proceedings did not comply with the requirements of a fair trial within the meaning of Article 6 § 1 of the Convention is ill-founded. Unlike Article 6 § 3 (c) of the Convention, which expressly provides for legal aid in criminal cases, the Convention does not guarantee such a right in civil cases. In consequence, the State is not obliged to ensure legal assistance in every civil case (R.D. v. Poland, nos. 29692/96 and 34612/97, § 44, 18 December 2001).
The Government admit that Polish law makes legal representation in the cassation proceedings compulsory. The courts considering each case have a right to assess whether legal aid is really necessary, having regard to the circumstances of the case. In the present case, the refusal did not prevent the applicant from lodging a cassation appeal because he could have appointed a lawyer of his choice and could have had such an appeal “filed and signed by an advocate”, as required by applicable laws. The fact that the applicant had not seized upon that opportunity could not, in the Government’s view, be held against the national authorities.
The applicant disagrees. He stresses that under domestic law a cassation appeal was available in his case and that he indented to pursue all legal remedies that were open to him. He admits that he did not appoint a lawyer of his choice but explains that he had not had sufficient means to pay legal fees. It was because of his lack of financial resources that he had requested the Katowice Regional Court to grant him legal aid for the purpose of pursuing the cassation proceedings, explaining in detail his financial situation in his motion to the court submitted on 26 November 1999 and having regard in particular to the fact that he had been unemployed from November 1997 to May 1999.
The applicant further argues that the Katowice Regional Court refused to grant him legal aid for the purpose of the cassation proceedings without invoking any reasons for its decision; in particular it did not show that the applicant was capable of bearing the costs of legal representation. The applicant argued that this decision was therefore arbitrary.
The applicant further avers that the Regional Court’s decision was issued on 17 January 2000, which was a month after the prescribed time-limit for lodging a cassation appeal had expired. That left him without any chance to seek legal assistance of his choice to lodge a cassation appeal in time.
In conclusion, the applicant submits that the conduct of the Regional Court lacked diligence which was all the more intolerable as the cassation procedure had been set up to remedy procedural shortcomings committed by lower courts.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which should depend on an examination of the merits. The Court concludes therefore that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the remainder of the application admissible.
Michael O’Boyle Nicolas Bratza
TABOR v. POLAND DECISION
TABOR v. POLAND DECISION