EHRM, 13-03-2007, nr. 77765/01

There is no automatic right under the Convention for legal aid or legal representation to be available for an applicant who is involved in proceedings which determine his or her civil rights. The Court recalls that there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (Del Sol v. France, no. 46800/99, § 20, ECHR 2002-II; Tabor v. Poland, no. 12825/02, § 39, 27 June 2006). Nonetheless, Article 6 may be engaged under two interrelated aspects (see, P., C. and S. v. the United Kingdom, no. 56547/00, § 88, ECHR 2002-VI).

Firstly, Article 6 § 1 of the Convention embodies the right of access to a court for the determination of civil rights and obligations (see Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, p. 18, § 36). Failure to provide an applicant with the assistance of a lawyer may breach this provision where such assistance is indispensable for effective access to court, either because legal representation is rendered compulsory as is the case in certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or the type of case (see Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14–16, §§ 26–28, where the applicant was unable to obtain the assistance of a lawyer in judicial separation proceedings). Factors identified as relevant in Airey in determining whether the applicant would have been able to present her case properly and satisfactorily without the assistance of a lawyer included the complexity of the procedure, the necessity to address complicated points of law or to establish facts, involving expert evidence and the examination of witnesses, and the fact that the subject matter of the marital dispute entailed an emotional involvement that was scarcely compatible with the degree of objectivity required by advocacy in court. In such circumstances, the Court found it unrealistic to suppose that the applicant could effectively conduct her own case, despite the assistance afforded by the judge to parties acting in person (see, P., C. and S., cited above, § 89). However, as the Airey case itself made clear (pp. 12–16, §§ 24 and 26), Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants a right of effective access to a court (McVicar v. the United Kingdom, no. 46311/99, § 45, ECHR 2002-III).

The Court recalls that the right of access to a court is not absolute and may be subject to legitimate restrictions. Where an individual's access is limited either by operation of law or in fact, the restriction will not be incompatible with Article 6 where the limitation did not impair the very essence of the right and where it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93, pp. 24–25, § 57). It may therefore be acceptable to impose conditions on the granting of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings (Steel and Morris v. the United Kingdom, no. 68416/01, § 62, ECHR 2005-II). Thus, although the pursuit of proceedings as a litigant in person may on occasion not be an easy matter, the limited public funds available for civil actions renders a procedure of selection a necessary feature of the system of administration of justice, and the manner in which it functions in particular cases may be shown not to have been arbitrary or disproportionate, or to have impinged on the essence of the right of access to a court (see Del Sol, cited above, § 26). It may be the case that other factors concerning the administration of justice (such as the necessity for expedition or the rights of others) also play a limiting role as regards the provision of assistance in a particular case, although such restriction would also have to satisfy the tests set out above (see P., C. and S., cited above, § 90).

Article 6 § 1 does not compel the Contracting States to set up courts of appeal or of cassation. Nevertheless, a Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees in Article 6, regard being had to the fact that the manner of application of that provision to such courts depends on the special features of the proceedings involved and that account must be taken of the entirety of the proceedings in the domestic legal order and of the role of the appellate court therein (see, for instance, Brualla Gómez de la Torre v. Spain, judgment of 19 December 1997, Reports 1997-VIII, p. 2955, § 33 and Podbielski and PPU Polpure v. Poland, no. 39199/98, § 62, 26 July 2005).

Secondly, the key principle governing the application of Article 6 is fairness. In cases where an applicant appears in court notwithstanding lack of assistance by a lawyer and manages to conduct his or her case in spite of all the difficulties, the question may nonetheless arise as to whether this procedure was fair (see McVicar, cited above, §§ 50–51). There is the importance of ensuring the appearance of the fair administration of justice and a party in civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as in other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures (see P., C. and S., cited above, § 91). However, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary (see Steel and Morris, cited above, § 62).

The Court will first examine whether the applicant's right of access to a court was respected in the cassation appeal proceedings before the Supreme Court in connection with the refusal to provide her with legal assistance in those proceedings.

It firstly notes that Polish law requires that a party to civil proceedings be represented by a lawyer in the preparation of his or her cassation appeal against a judgment given by a second-instance court, and that an appeal drawn up by the party, without legal representation, will be rejected by the court (see paragraph 31 above).

The Court recalls that the requirement that an appellant be represented by a lawyer before the court of cassation cannot in itself be seen as contrary to Article 6, such a requirement being clearly compatible with the characteristics of the Supreme Court as the highest court examining appeals on points of law. This requirement cannot be regarded as imposing on the domestic courts an unqualified obligation to grant free legal assistance to a person wishing to institute cassation proceedings. However, while the manner in which Article 6 is to be applied to courts of appeal or of cassation depends on the special features of the proceedings in question, there can be no doubt that a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before them the fundamental guarantees of fair hearing contained in that Article (see, for instance, Vacher v. France, judgment of 17 December 1996, Reports 1996-VI, pp. 2148–49, §§ 24 and 28 and Tabor, cited above, § 42). In discharging that obligation, the State must, moreover, display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (R.D. v. Poland, nos. 29692/96 and 34612/97, § 44, 18 December 2001).

The Court observes that on 14 April 2000 the Regional Court refused the applicant's request to appoint a legal-aid lawyer in cassation appeal proceedings on the grounds that such appeal was not available in her case. Subsequently, the applicant filed her cassation appeal without being represented by a counsel. On 14 September 2000 the Regional Court rejected it on the grounds of lack of the Supreme Court's jurisdiction in the case and, additionally, for failure to comply with two statutory requirements (time-limit of one month from the date of the service of the second-instance judgment and compulsory legal representation). The Supreme Court in its decision of 18 January 2001 held that it had jurisdiction to hear the case, but nevertheless the cassation appeal had still been inadmissible for failure to comply with the above-mentioned statutory requirements.

The Court reiterates that it is not its task to take the place of the domestic courts. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation (see Edificaciones March Gallego S.A. v. Spain, judgment of 19 February 1998, Reports 1998-I, p. 290, § 33). This applies in particular to the interpretation by courts of rules of a procedural nature such as the prescribed manner and prescribed time for lodging appeals (see Pérez de Rada Cavanilles v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 43). The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention. Furthermore, the Court recalls that the rules governing the formal steps to be taken and the time-limits to be complied with in lodging an appeal are aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty. That being so, the rules in question, or the manner in which they are applied, should not prevent litigants from using an available remedy (see Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41787/98 and 41509/98, §§ 33 and 36, ECHR 2000-I and Běleš and Others v. the Czech Republic, no. 47273/99, § 49, ECHR 2002-IX).

The Court finds that the Regional Court's refusal to provide the applicant with the assistance of a lawyer was based on the erroneous premise that a cassation appeal was not available in the applicant's case. The Regional Court's error was subsequently acknowledged by the Supreme Court and admitted by the Government. The Court further observes that the Regional Court did not examine the merits of the applicant's request for legal aid. Having regard to the foregoing, the applicant cannot be blamed, as the Government suggested, for not having appointed a counsel of her own choosing to represent her in cassation appeal proceedings. In any event, that possibility seems to be rather hypothetical given the financial standing of the applicant.

The Court finds that in those circumstances the applicant was made to bear the consequences of the Regional Court's error in that her cassation appeal was rejected as inadmissible. It is evident that the applicant cannot be held responsible for that error. Accordingly, the Court finds that the applicant was deprived of the effective access to the Supreme Court on account of the flawed interpretation of domestic law by the Regional Court (see, mutatis mutandis, Leoni v. Italy, no. 43269/98, §§ 24–27, 26 October 2000 and Platakou v. Greece, no. 38460/97, §§ 39 and 44, ECHR 2001-I).

Having regard to the foregoing, the Court considers that it is not necessary to examine whether the refusal to provide the applicant with the assistance of a lawyer in the appeal proceedings before the Regional Court amounted to a breach of Article 6 § 1.

In conclusion, the Court finds that the denial of legal aid to the applicant in the cassation appeal proceedings and the ensuing rejection of her cassation appeal infringed the very essence of the applicant's right of access to a court. There has accordingly been a violation of Article 6 § 1 of the Convention.