1 IN THE EUROPEAN COURT OF HUMAN RIGHTS (Application No

IN THE EUROPEAN COURT OF HUMAN RIGHTS
(Application No. 77765/01)
BETWEEN
LUCYNA LASKOWSKA V. POLAND
WRITTEN COMMENTS
BY
HELSINKI FOUNDATION FOR HUMAN RIGHTS
28 December 2005
TABLE OF CONTENTS
1.
2.
3.
Introduction ....................................................................2
Interest of Helsinki Foundation for Human Rights ........2
Legal Aid as a Key Element of the Right of Access to
Court in Poland................................................................3
3.1 Legal basis ..............................................................................3
3.2 Application of the right to legal aid in practice.......................4
3.3 Potential effect of the Court's judgment...................................6
4.
Legal issues under the Convention .................................7
4.1 General overview ................................................. ..................7
4.2 Applicability of Article 6 of the Convention to legal aid.
Special circumstances justifying free legal assistance under
the Convention ...................................................................... .7
5.
1.
Conclusions ...................................................................10
INTRODUCTION
1.
These written comments are submitted by the Helsinki Foundation for Human Rights (the
„HFHR”) with its seat in Warsaw, Poland at ul. Zgoda 11 pursuant to leave granted on 28
November 2005 by Mr. Michael O’Boyle, the Section Registrar in the European Court of Human
Rights (the „Court”) under Rule 44 § 2 of the Rules of the Court. They address a question whether
under the Convention for the Protection of Human Rights and Fundamental Freedoms (the
„Convention”) the assistance of a lawyer for the indigent persons is a precondition for
guaranteeing equal access to justice. We provide a thorough analysis of the situation in Poland,
1
including both the description of legal environment and existing practice of the judiciary and
lawyers within the legal aid scheme. Furthermore, we concentrate on answering the question
whether in the light of the Convention the current legislative framework in Poland provides
satisfactory protection of the right to legal aid. Our submissions do not include any comments on
the facts or merits of the case, but we focus on addressing general principles involved in the
solution of the case. However, taking into consideration the fact that the present case poses a
question of the legal aid in civil cases, we consequently limit our observations to such a scope.
2.
INTEREST OF HELSINKI FOUNDATION FOR HUMAN RIGHTS
2.
HFHR is a non-governmental organization established in 1989 by members of the Helsinki
Committee in Poland, in order to promote human rights and rule of law in Poland as well as to
contribute to the development of an open society in Poland. One of the activities of the HFHR
includes legal actions undertaken in the public interest, including the representation of parties and
preparation of legal submissions to national and international courts and tribunals, particularly
within the framework of the Strategic Litigation Program. The aim of such submissions is to
influence the process of changing laws and practices that we find contrary to human rights.
3.
HFHR since its establishment has been promoting the standards of the European Convention
on Human Rights both among the judiciary and lawyers practising in Poland. This refers
specifically to guarantees of a fair trial under Article 6 of the Convention, including the right to
legal aid. In particular, HFHR conducted in recent years an in-depth survey concerning access to
legal aid. The survey constituted a part of the project on Promoting Access to Justice in Central and
Eastern Europe. The survey itself embraced review of the law, analysis of jurisprudences of both
Polish and international courts, cases studies, analysis of statistical data and an empirical survey in
the courts and penitentiaries. Eventually, it led to preparation of a comprehensive monitoring
Report on Access to Legal Aid in Poland in 20031 (hereinafter refer to as the „Report”) and
provoked a public debate involving representatives of judiciary and prosecuting authorities, as well
as advocates, legal advisers and representatives of non-governmental organisations. The Report
demonstrated a number of restrictions in access to legal aid for the indigent persons and revealed a
need to introduce substantial changes in this system. Moreover, HFHR continues monitoring of the
activities of advocates and legal advisers. In particular, through submitting our opinions to the
President of the Republic of Poland, and expressing our concerns about the access to legal
professions, we have successfully supported the process of the opening of legal professions in
Poland, which has been recently speeded up. We also actively participate in works on the new law
on access to free legal assistance for natural persons, which is likely to be a subject of the Polish
Parliament’s debate in the near future.
4.
We hope that our written comments may be of some assistance to this Honourable Court in
deciding on the question involved. We believe that giving the opinion by the Court on the existing
legal framework and practice in Poland may draw attention to eventual procedural shortcomings
and may bring about further public discussion regarding this human rights sensitive issue. The need
to obtain the Honourable Court’s view in this matter is of special importance now, when having
before the Polish Parliament a draft of the new law on access to free legal assistance as mentioned
above. The proposed law creates a mechanism of obtaining legal aid via an independent body and
may lead to certain standardisation of the mechanisms for granting legal aid. This, for sure, after
recent reforms which led to opening of legal professions, will constitute a next positive element in
improving legal environment and might increase protection of human rights in Poland.
1
Access to Legal Aid In Poland. Monitoring Report, Łukasz Bojarski, HFHR, Warsaw 2003
2
3.
LEGAL AID AS A KEY ELEMENT OF THE RIGHT OF ACCESS TO CIVIL
COURT IN POLAND
3.1
Legal basis
5.
Taking into account the complexity of legal framework related to the right of access to court
and - derived from it – the right to legal aid; and especially considering a detail-oriented character
of these laws, we will mainly concentrate on selected provisions of the Polish Code of Civil
Procedure (hereinafter referred to as the „Code”), having the highest relevance for the problem in
question. However, it is worth mentioning that the provisions concerning the right of access to court
are also contained in the Constitution of the Republic of Poland2 as well as in the Polish Code of
Criminal Procedure and in the Law on Proceedings before Administrative Courts.
6.
The Code does not provide for a mandatory representation in any type of cases. However, in
civil cases an advocate (adwokat) or a legal adviser (radca prawny) must be compulsorily engaged
in proceedings befor the Supreme Court (with several exemptions). In particular, filing a cassation
appeal with the Supreme Court necessitates hiring of a professional counsel. Article 212 of the
Code requires that: „The judge presiding (…) gives instructions and advice to the parties if
necessary, and according to circumstances draws their attention to the usefulness of hiring a legal
representative." However, the Code itself does not include an explicit duty of the judiciary to notify
the parties about the possibility of applying for a legal aid lawyer. It must be also noted that there is
an additional requirement in this respect. The ex officio advocate (or legal adviser) may be granted
only to individuals who have been exempted from court fees in whole or in part. As a consequence,
the Code combines these two separate institutions making the obtaining of legal aid completely
dependent on another independent matter and, in fact, limiting its scope of application. It should be
also noted that the combination of the two above-mentioned matters has only one-direction
character. It means that it is possible to apply for a free legal assistance once exempted from the
court fees, whereas the exemption from them does not necessary result in granting a right to legal
aid.
7.
The Code provides for a number of automatic exemptions from the court fees. Exempted by
law are plaintiffs in affiliation proceedings, alimony claims, selected consumer’s claims, a party to
the proceedings where protection of mental health is at stake as well as employees in cases related
to labour and social insurance law. However, as explained the preceding paragraph, the plaintiffs in
the above proceedings, although exempted by law from the court fees, do not enjoy any special
rights concerning the legal aid and must apply to the court in order to obtain free legal assistance.
8.
Depending on the type of civil case concerned, free legal assistance may be given by an
advocate or a legal adviser. According to Article 117 § 1 of the Code, the application for a legal aid
lawyer should be made in writing or announced for the record in the court where the case is pending
or will be instituted. The decision on granting a right to legal aid is taken by the court, and in fact,
the most often by the presiding judge. Such motion is granted upon finding the participation of an
advocate or a legal adviser necessary in the given case. The law does not specify clear criteria
leading to objective evaluation of „necessity” of legal representation before the court.
9.
As emphasised in the Report those criteria include legal or factual complexity of the case as
assessed by the court, and the helplessness of the applicant3. The Report also draws attention to the
fact that the „need” to involve an advocate may also stem from principles of an adversarial trial
system when one party is assisted by an advocate and the other is not4. The participation of ex
officio advocates (legal advisers) may be also justified if the party to the proceedings is vulnerable,
2
3
4
Article 45, point 1, of the Constitution states that: „Everyone shall have the right to a fair and public hearing of his
case, without undue delay, before a competent, impartial and independent court.” The Constitution does not further
elaborate on this issue, which means in practice that the Constitution enshrines the right to a hearing in court, but
does not contain any specific provisions on legal aid in civil cases.
Access to Legal Aid In Poland. Monitoring Report, Łukasz Bojarski, HFHR, Warsaw 2003, p. 110
Access to Legal Aid In Poland. Monitoring Report, Łukasz Bojarski, HFHR, Warsaw 2003, p. 110
3
or where the case is legally and factually complicated or the person is experiencing other
difficulties, such as communication problems with the court in the proceedings. However, in each
case the final decision in this regard depends on the court’s opinion, and, in fact, these decisions are
very discretionary and may often result in major lack of objectivity.
10.
Taking into consideration the close inter-dependence between the exemption from the court
fees and the right to legal aid, we will, therefore, make a few comments on the existing and future
legal framework concerning the court fees. Currently in Poland the court fees in civil and
commercial cases are generally considered as high or even excessive and may often prevent persons
from having equal access to justice. This results from the fact that not many people can afford
paying in advance a substantial amount of money and wait for years to obtain a potential judgment
in their favour. However, it must be noted that there is a new law on court fees in civil proceedings
which will enter into force on 1 March 2006. The law introduces several changes regarding court
fees, in many cases setting fixed fees or maximum fees. While observing the results of the
application of the new law in the future, we shall also take a closer look whether the courts, relying
on the simplified and more litigant-friendly regulation, will be equally willing to exempt the
indigent persons from the court fees as they do now. Failing to do so, the courts may, in fact,
deprive these persons of the right to legal aid, being fully dependent on the prior exemption from
the court fees.
11.
Upon allowing the application for legal aid, the court issues an order of appointment of a
legal aid lawyer (advocate or legal adviser, depending upon the case), which is equal to granting the
power of attorney in given proceedings. Following that, the court sends its order to the Regional
Council of the Bar (okręgowa izba adwokacka) or Regional Council of Legal Advisers (okręgowa
izba radców prawnych) for appointment of a particular advocate or legal adviser to assist at the
given case ex officio.
12.
Exemption from court fees, and thus, the appointment of the legal aid lawyer can—in
principle—be granted at all stages of proceedings, including the appeal and the motion for cassation
appeal. Both a refusal to exempt a person from court fees as well as a refusal to assign a legal aid
lawyer can be appealed. The exemption from court costs may be withdrawn at any time. If the
original grounds for exemption had not, in fact, existed, or these grounds ceased to exist, the court
may withdraw its decision to appoint a legal aid counsel, as well as it can order payment of the fees.
As observed in the Report5, there is one point of concern in the legal aid procedure. It relates to the
way in which an ex officio advocate (or legal adviser) may obtain his or her fee after the trial. The
examination of these procedures revealed that this process is actually much easier if the lawyer
loses the case. If the party assisted by the legal aid lawyer wins, the lawyer may seek his or her
remuneration from the opponent party, which in many case proved to be difficult or impossible.
Only upon being unable to execute its remuneration and incurred costs from the losing party, the
lawyer may address his or her claims to the court. However, if the party represented by the legal aid
lawyer loses the case, the lawyer’s remuneration is paid directly from the State Treasury.
3.2
Application of the right to legal aid in practice
13.
Legal aid system in Poland may be sometimes perceived as burdened with misleading
understanding of the legal aid needs and focusing exclusively on the system of mandatory defence
in criminal matters, leaving aside anything that falls outside this scope. Such a perception slowly
changes due to intensive work of international institutions, such as the Council of Europe, and the
Court in particular, as well as the NGO sector, which help to develop certain standards related to
access to justice across Europe and to encourage positive changes in countries which come across
numerous obstacles in this respect. Nevertheless, the proposed reforms are often introduced at the
speed far from being sufficient.
14.
Upon making long-term observations of existing practices and factual operation of the
regulations concerning a right to legal aid in Poland, we are of the opinion that it could encounter
5
Ibidem. page 113
4
certain problems. It is evident that in civil cases, the lack of legal aid can hinder resolution of
disputes having substantial impact on civil rights and obligations of persons. Having in mind an
broad scope of cases considered as „civil” and their importance for individuals, it can be reckoned
that the need for legal assistance in court proceedings is very strong. Meanwhile, the examination of
the results of the research described in the Report leads to the conclusion that legal aid actually
provided in civil cases is very narrow in its scope6. Although the reference we found in the Report
leads us 2-3 years back, it still shows an obvious tendency. As presented in the Report – according
to data given by the National Bar Council (Naczelna Rada Adwokacka) and the National Chamber
of Legal Advisers (Krajowa Izba Radców Prawnych), legal aid was granted only in about 13,000
(2001) and 12,000 (2002) non-criminal cases, out of more than 4 million civil cases brought to
courts per year, not to mention family, labour, social security, and commercial cases (another 2.8
million). This means that legal aid is granted in about 0.17-0.18 percent of the non-criminal cases7.
15.
The above-described situation may result from various implications. In general, legal aid in
Poland is not used at a large scale. This is visible also at an international level, and in particular in
applications to the Court. As summed up by Magdalena Krzyżanowska-Mierzewska at the „Legal
Aid Forum” in 2002, only around 5 % of applicants from Poland who file a complaint with the
Court are represented by an advocate or a legal adviser. In comparison, 40-50 % of applicants from
the United Kingdom are supported by barristers or solicitors.
15.
Most people in Poland cannot afford paying lawyers’ excessive costs or simply do not have
an easy access to legal advice due to their insufficient number. This is a consequence of long-lasting
limited access to legal professions which led to a disproportion between the number of active
lawyers and the increase in courts’ caseload in past years8. However, the new amendments to the
Law on Advocates and to the Law on Legal Advisers have been recently passed by the Parliament
and entered into force9. Their result will be the the broader access to the profession of advocates or
legal advisers, both for the current practitioners (e.g. persons who passed judge exam, but are not
members of the advocates' or legal advisers' bar) as well as to the graduates of law studies. It seems
that more objective admission criteria were established and the admission system became more
transparent and standardised. Thus, we think that in the course of coming years the situation on the
legal aid market will substantially improve. There will be more lawyers available and willing to
assist people at lower remuneration rates.
16.
However, we are still convinced that there is much to work on as regards the practice of the
judiciary. Securing legal aid for the indigent persons plays in Poland a crucial role in the decisionmaking process. Here, we again would like to draw attention to the conclusions made in the Report.
Some of them might even seem shocking as they reveal a number of harmful occurrences in the
Polish courts’ practice. When questioned during the process of collecting data for the Report, quite
many judges admitted that they felt uncomfortable about deciding on granting or refusing legal
aid10. It seems that they simultaneously recognised the needs, but were also well aware of the
courts’ financial constraints11. As further stated in the Report12, the presidents of courts reported
that they repeatedly warned judges to be extremely careful with appointing legal aid lawyers
(advocates or legal advisers). HFHR witnessed also some situations which could seem absurd.
According to one judge, the president of a district court summoned all of the court’s judges and
presented them with alternative solutions: either they grant legal aid lawyers and hear cases in cold
courtrooms, wearing coats over their gowns during winter; or the court purchases coal to heat the
courtrooms – in which case each of the judges may grant legal aid in only one case per month.
6
7
8
9
10
11
12
Access to Legal Aid In Poland. Monitoring Report, Łukasz Bojarski, HFHR, Warsaw 2003, p. 114
Ibidem.
Access to Legal Aid In Poland. Monitoring Report, Łukasz Bojarski, HFHR, Warsaw 2003, p. 58
On the basis of the Act of 30 June 2005 on amendments to the Law on Advocates and other legal acts (Dz.U. No.
163, item 1361).
Ibidem. p. 114
Ibidem.
Ibidem.
5
17.
It should be also noted that in Poland the right to be exempt from court fees and to be
granted free legal aid may be, in fact, executed after the civil proceedings have been already
initiated before the court. Therefore, certain motions or requests which often need to be used at the
initial stage of the proceedings in order to secure civil law claims, may not be used by an indigent
party, who rarely possesses sufficient knowledge about the law. In such circumstances, obtaining
legal aid at a later stage may not be able to cure the problem.
18.
We have also observed that courts often do not follow uniform requirements regarding the
evidence needed to prove financial eligibility. Moreover, as admitted in the Court’s case-law13 in
certain situations courts of higher instances withdraw from the prior lower courts’ decisions on the
exemption from court fees, and consequently from granting legal aid. This happens not as a result of
verification of the lower court’s decision, but as a new evaluation of the circumstances concerned.
As pointed out by the Court not always such decisions are proper or taken after a sufficient lapse of
time which may justify the occurred changes in the evaluation of evidence. As described in the
Report – a repeatedly copied old judgment of the Supreme Court14 remains typical: a party who
intends to lodge a claim should be prepared for specific necessary expenses, and should save funds
for this purpose by reducing the expenditure on current needs. It is only in situations when such
saving would result in an explicit detriment to the party’s and his or her family’s necessary
subsistence that grounds for exemption can be found to exist. For more than forty years now, Polish
courts have cited this judgment when refusing to grant an exemption from court costs.15 Although
this approach was already heavily criticised by the Court in Kreuz v. Poland16, it is still alive in
proceedings before domestic courts in Poland.17 Probably less officially cited, but in fact having its
established place among judges, it is still present and often complained of by persons who seek
legal assistance in the HFHR.
19.
Another problem encountered on the way to proper functioning of legal aid scheme in
Poland is simply lack of transparency in determining legal aid budgets. In the course of its own
research HFHR has realised that neither the Ministry of Justice, nor legal corporations, nor
scientific institutions gather sufficient information and statistical data, in order to be able to
precisely identify the problems and conduct a regular appraisal of the current system’s
effectiveness18. However, as further shown in the Report19 funds for legal aid are part of the budget
of the Ministry of Justice. These funds are put together with other expenses incurred by courts and
public prosecutors. This, in fact, often leads to inability to establish the precise amount of funds
spent on legal aid and hampers rationalising of budgetary planning.
20.
We also identified a substantial lack of information concerning the possibility of receiving
free legal aid which is given to parties to civil proceedings. This make the legal aid system even
more underused. As explained in paragraph 7 above the courts in Poland are not obliged to provide
any advice to the parties as regards the availability of legal aid. Thus, their decisions whether to
draw the parties’ attention to the convenience of hiring a legal representative is fully discretionary.
13
R.D. v. Poland, applications numbers. 29692/96 and 34612/97. Judgment of 18 December 2001
Judgment of the Supreme Court of 5 March 1959, 4CZ25/59 Nowe Prawo 1960 No. 7–8
15
Access to Legal Aid In Poland. Monitoring Report, Łukasz Bojarski, Warsaw 2003, p. 115
16
Kreuz v. Poland. Application No.28249/95. Judgment of 19 June 2001
17
In Jedamski and Jedamska v. Poland, application no. 73547/01, judgment of 26 July 2005 the Court heavily
criticised the domestic courts’ assumption that being involved in a number of proceedings would in itself imply the
necessity of paying the court fees and the courts’ conclusion that the applicants should have taken into account the need
to secure in advance sufficient funds for the court fees. The Court once again confirmed that Polish courts base their
findings on the litigants’ hypothetical earning capacity rather than on the facts they supplied. Furthermore, in Kniat v.
Poland, application no. 71731/01,judgment of 26 July 2005, the Court considered that the judicial authorities failed to
secure a proper balance between the interest of the State in collecting excessive court fees for dealing with claims and
the interest of the applicant in pursuing her appeal. In Podbielski and PPU Polpure v. Poland, application no. 39199/98,
judgment of 26 July 2005 the Court did not accept the courts’ assumption that certain events can “retrospectively”
prove the applicant’s ability to pay the fee at the material time.
18
Access to Legal Aid In Poland. Monitoring Report, Łukasz Bojarski, HFHR, Warsaw 2003, p. 12
19
Ibidem. p. 45
14
6
21.
It is true that there are some organisations active in the field of providing legal aid to
indigents, such as the HFHR, the Legal Clinics Foundation (Fundacja Uniwersyteckich Poradni
Prawnych) or the Academia Iuris Foundation (Fundacja Academia Iuris). However, in general they
experience several limitations in the course of conducting their activities. Firstly, they utilise pro
bono concept of work and, in principle, they do not employ professional lawyers, but base their
operation on students supervised by professional counsels. Secondly, the number of legal clinics in
Poland is not sufficient to meet the needs of the indigent. In fact, they concentrate their activities in
major cities and big university centres and are not able to fully respond to the increased demand for
legal aid at a wider scale.
3.3
Potential effect of the Court's judgment
22.
As pointed above (para. 4), Poland has recently experienced a wide range of changes in its
legal framework and is likely to introduce even more modifications. This shows a positive tendency
over past years and leads to conclusion that the undertaken direction of transformation is correct.
However, a lot still needs to be done, and even more should be understood and analysed. This, in
our opinion, includes the legal aid system in Poland, where we can observe certain shortcomings
and malpractice.
23.
One may expect that the new law on access to free legal aid for natural persons will be soon
examined by the Parliament. But this, in our opinion, makes this issue even more compelling, as the
direction of changes should be given at the initial stage, rather than later as a reprimand in case the
new regulation does not meet the requirements or does not correspond to the needs. We believe that
finding by the Honourable Court of potential „leaks” in the current legal framework will result in
proper assessment of existing hindrance and will help developing means towards problem solving.
In particular, uncovering the existence of malpractice and wrong understanding of the public
authorities role in providing free legal aid in Poland, can provoke a further debate on the direction
of changes to be undertaken and could be a motivating factor for speeding up works on the new law
on free legal assistance. In fact, finding a potential source of violations in the existing legal aid
scheme in Poland can also serve as an inefficiency test and, in our opinion, may, in the future,
trigger an application of reasonable solutions. It is also worth pointing out that the judgment to be
given in the case concerned will have a precedent character as the Court, despite examining a
number of legal aid related issues, has not given so far a judgment related to general conditions of
legal aid scheme in Poland. This makes this issue even more crucial and increases its importance
and relevance in the process of building and strengthening of a democratic society.
4.
LEGAL ISSUES UNDER THE CONVENTION
4.1
General overview
24.
Having presented the legal aid framework and relevant practice in this respect in Poland we
would like to provide a few comments on legal aid in the light of a right of access to court
guaranteed under Article 6 of the Convention. As we will not directly refer to the case which is
currently under Honourable Court’s consideration, we will limit our observations to case-law
references and general comments on applicability of Article 6 of the Convention in the assessment
of legal aid system in Poland where it may be deemed necessary. We hope to draw attention to the
fact that some elements of the Polish legal framework and practice might be found as not
corresponding to the standards and guarantees of Article 6 of the Convention and their
interpretation established by the Court.
4.2
Applicability of Article 6 of the Convention to legal aid. Special circumstances
justifying free legal aid under the Convention
25.
A right of access to court is a right embodied in Article 6 of the Convention. Although not
directly mentioned, it can be easily deducted from the wording of the aforementioned Article. As
7
stated in Golder v. the United Kingdom20- Article 6 should describe in detail the procedural
guarantees afforded to parties in a pending lawsuit and should not first protect that which alone
makes it in fact possible to benefit from such guarantees, that is, access to court. The fair, public
expeditious characteristics of judicial proceedings are of no value at all if there are no judicial
proceedings. Thus, the right of access to court in its substance is clear and unquestionable.
Furthermore, as admitted in Del Sol v. France21, the right of access to a court guaranteed by Article
6 § 1 must be „practical and effective”, not „theoretical or illusory”.
26.
However, it is true that it may be limited in certain aspects. In particular, the Court held22
that it is for the Contracting States to decide how they should comply with the obligations arising
under the Convention. In such a situation the Court must satisfy itself that the method chosen by the
domestic authorities in a particular case is compatible with the Convention23. This means in practice
that the State Party has a certain margin of appreciation of the means to be used in guaranteeing
litigants a right of effective access to a court24, but in principle, it must set up such a system which
is capable of ensuring that persons within its jurisdiction can enjoy these fundamental guarantees.
27.
As confirmed in the later Court’s case law25 building of the system compatible with the
requirements set forth in Article 6 may sometimes compel the State to provide for the assistance of
a lawyer when such assistance proves indispensable for effective access to a court, either because
legal representation is rendered compulsory, or by reason of the complexity of the procedure or of
the case. Thus, when deciding on this case, the Court set a further-reaching obligation which allows,
despite the absence of a similar clause for civil litigation, apply Article 6 therein. This makes it
undisputable that in certain cases providing for the assistance of a legal aid lawyer in civil lawsuits
may be crucial for determining whether the right of access to court was properly ensured.
28.
It is also true that legal aid does not need to be granted to all individuals having disputes
before civil courts. In Del Sol v. France the Court pointed out that there is no obligation under the
Convention to make legal aid available for all disputes (contestations) in civil proceedings, as 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 assistance26.
29.
However, in R.D.v Poland it was found that 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 Party which does institute such courts is required to
ensure that persons amenable to the law shall enjoy before them the fundamental guarantees of fair
trial contained in that Article, including the right to free legal assistance27. In discharging that
obligation, the State Party must, moreover, display diligence so as to secure to those persons the
genuine and effective enjoyment of the rights guaranteed under Article 628.
30
In particular, in McVicar v. the United Kingdom29 the Court confirmed that the question
whether or not Article 6 requires the provision of legal representation to an individual litigant will
depend upon the specific circumstances of the case and, in particular, upon whether the individual
would be able to present his case properly and satisfactorily without the assistance of a lawyer.
Earlier, in Airey v. Ireland the Court specified a number of circumstances which together may lead
to a finding that a person was denied an effective right of access to a court by the State's refusal of
20
21
22
23
24
25
26
27
28
29
Golder v. United Kingdom, Application No. 4451/70, judgment of 21 February 1975, Series A no. 18
Del Sol v. France. Application No.46800/99, judgment of 26 February 2002
Ibidem.
Ibidem.
Ibidem.
Airey v. Ireland. Application No.6289/73. Judgment of 9 September 1979
Del Sol v. France. Application No.46800/99. Judgment of 26 February 2002
R.D. v. Poland, applications numbers. 29692/96 and 34612/97. Judgment of 18 December 2001
Vacher v. France. Application No.20368/92. Judgment of 17 December 1996
McVicar v. the United Kingdom. Application No.46311/99. Judgment of 7 May 2002
8
legal aid30. This embraces the situations where the legal aid was not granted despite the fact that the
proceedings in question were commenced and conducted in the High Court where the procedure
was complex. In this regard, it should be noted that Polish law does not give litigants a choice
between appointing an advocate (or a legal adviser, depending upon case) or preparing his or her
cassation appeal himself or herself. In fact, they have to be assisted by a advocate (or a legal
adviser), who is responsible both for the preparation of a cassation appeal as well as for filing it
with the Supreme Court, otherwise the cassation appeal prepared and filed by the litigant himself or
herself will rejected31. The above-described approach of the Court was also confirmed in another
case in which the Court held that the complexity of the cassation procedure may, from the point of
view of the interests of justice, necessitate that the applicant be granted free legal assistance32.
Furthermore, litigations which necessitate producing complicated evidence, including the tendering
of expert evidence or the calling and examining of witnesses may be also regarded as requiring
assistance of legal aid lawyers. The same applies to cases, in which the applicant needs to develop
appropriate arguments on complicated legal issues33. Finally, civil law cases entailing emotional
involvement (divorces, division of joint property of former husband and wife, alimony claims) may
demand ex officio advocate (or legal adviser), especially where a high degree of objectivity is
required before a court34. Another factor which makes the assistance of legal aid lawyer compelling
can refer to family, education and work background, which may together or individually prove that
the litigant is humble, vulnerable or simply does not posses sufficient knowledge to be capable of
litigating his or her case before the court35.
31.
In certain cases the application for free legal aid may be dismissed on the basis that no
arguable ground of appeal could be produced by the litigant. This results from the fact that where
public money is concerned, appropriate public authorities possess certain powers of appreciation
whether the spending has legitimate aim36. Therefore, a State Party may make legal aid available
only to litigants whose appeals to the higher instance court have a reasonable prospect of success.
Consequently, the domestic courts can also refuse applications for legal aid, if they find that a
possibility of further appeals is limited or excluded by the law itself. However, in the situation
where the possibility of further appeal is disputable due to the law’s ambiguity or lack of its
precision, the courts should be more careful in deciding about legal aid. In particular, they should be
very prudent where the refusal to grant free legal aid will most probably result in the complete
closing of the possibility to further litigate the case.
32.
In Poland, alimony claims can serve as a perfect example of proceedings where extremely
careful examination of the application for legal aid is essential. Firstly, alimonies can be regarded as
a key financial support mainly for single parents and their children. Establishing by the court an
amount of alimonies to be paid often constitutes their „be or not to be” in ensuring them a minimum
standard of living. Secondly, having exempted ex lege alimony proceedings from court fees, the
state has already recognised the particularity of the situation of persons who often have to struggle
for financial means to survive. Finally, refusing an application for legal aid by the court in such
proceedings can result in cutting off access to court of the persons concerned. Taking into
consideration that they often institute alimony proceedings simply because they already encounter
financial problems, it is not very probable that they will be able to afford paying lawyers’ fees for
helping them efficiently litigate cases before the court, or simply for preparing and lodging their
cassation appeals. Therefore, if the courts in Poland do not apply stricter scrutiny in examining the
needs for legal aid in alimony or similar proceedings, or if they disregard indigent persons’ inability
to bear further costs of litigation, we think that guarantees of Article 6 can be seriously endangered.
30
31
32
33
34
35
36
Airey v. Ireland. Application No.6289/73. Judgment of 9 September 1979
Article 393³ of the Civil Procedure Code states that: „The cassation appeal should be prepared by a counsel being
an advocate or a legal adviser”.
Twalib v. Grece. Application No.24294/94. Judgment of 9 June 1998
Pham Hoang v. France. Application No.13191/87. Judgment of 25 September 1992
Airey v. Ireland. Application No.6289/73. Judgment of 9 September 1979
Airey v. Ireland. Application No.6289/73. Judgment of 9 September 1979
Del Sol v. France. Application No.46800/99. Judgment of 26 February 2002
9
33.
It must be also considered that in Poland litigants must comply with certain, usually very
strict time-limits which are set for the preparation and filing of cassation appeals with the Supreme
Court Thus, while refusing the litigants’ applications for legal aid lawyer to prepare and file the
cassation appeal with the Supreme Court in Poland, the lower-instance courts should also draw
special attention to the fact whether they leave sufficient time for the applicants for finding a lawyer
of their own choice, and for the very preparation and filing of the cassation appeal with the Supreme
Court. Failing to do so, they can be regarded as limiting the litigants’ access to court as it was found
in R.D. v Poland37 where the Court decided that the shortness of the time left to the applicant for
appointing a lawyer of his choice and for preparing the intended cassation appeal did not give him a
realistic opportunity of having his case brought to and defended in the cassation court in a „concrete
and effective way”.
34.
Finally, when applying for a legal aid lawyer to be appointed, litigants must be ensured a
procedure which offers substantial guarantees to protect them from arbitrariness. In Del Sol v.
France38 the Court found that the Legal Aid Office of the Court of Cassation in France
demonstrated sufficient lack of arbitrariness as it is presided over by a judge of that court and also
includes its senior registrar, two members chosen by the Court of Cassation, two civil servants, two
members of the Conseil d'Etat and Court of Cassation Bar and a member appointed by the general
public. Moreover, an appeal lies to the President of the Court of Cassation against refusals of legal
aid39. Following that judgment, it can be concluded that the state has an obligation to set up the
decision-making procedures and appeals procedure in the legal aid scheme in such a manner, which
gives guarantee that the final decision on allowing or rejecting application for a legal aid lawyer
will be objective. Therefore, if the decisions are made by sole judges, or the appeals are heard by
the same composition of the court, or the appeals are for some reasons not transferred to higherinstance courts as the case may be in Poland, it could be found that the procedure in question does
not provide sufficient guarantees arising from Article 6. Consequently, a thorough examination of
decisions taken in such proceedings might be necessary to find out whether they were just and met
fair trial requirements.
5.
CONCLUSIONS
35.
We consider that access to justice should not be impaired by high legal costs. The indigent
persons should be able to exercise their rights effectively and can not be excluded from the judicial
area simply because they cannot afford paying their costs. This applies, in particular, to people who
not only encounter financial problems, but are vulnerable or in any other manner may not
effectively litigate their cases. In this regard the State Party must make sure that its legal assistance
system is properly set up, developed and strengthened. Therefore, the State Party has to - on a
constant basis - collect data, analyse statistics, examine complaints and their sources, study opinions
of the judiciary and representatives of legal professions and NGO sector. Only this can give it a true
picture and can indicate whether the legal aid scheme is properly established.
36.
In order to avoid situations where the indigent persons are deprived of not only an equal, but
any access to legal aid, the State Party should look at minimum common standards set forth in the
well developed case-law of the Court. Moreover, taking into account recent development of this
issue, the State Party may also refer to standards established by the Council of Europe and the EU
institutions. One may neither forget about efforts put into the improvement of the situation by nongovernmental organisations. Reading monitoring reports of such organisations as HFHR or the
Public Interest Law Initiative may draw attention not only to human rights sensitive issues, but may
deliver a multi-level image of the functioning of national legal aid systems. Then, the State Party
can learn that real problems undermining the operation of the rule of law may still exist. In
particular, one may identify certain deficiencies in the provision of legal aid, and their negative
37
38
39
R.D. v. Poland, applications nos. 29692/96 and 34612/97. Judgment of 18 December 2001
Del Sol v. France. Application No.46800/99. Judgment of 26 February 2002
Del Sol v. France. Application No.46800/99. Judgment of 26 February 2002
10
influence on vulnerable groups in society. In consequence, a widespread reform concerning better
application of the legal aid norms in practice, and improvement of the management of the legal aid
system in whole, might appear necessary in order to ensure that procedural guarantees of the right
to legal aid are effectively applied.
37.
The examination of the situation in Poland, in our opinion, revealed a number of problems in
the legal aid system. It is not just an „ad hoc” malpractice of the courts or legal aid lawyers, but it
sometimes amounts to a serious misunderstanding of a general legal aid concept as such and its role
in a democratic society and in the state ruled by law. Balancing between state’s financial constraints
and the protection of indigent persons’ rights often results in Poland in the negligence of the latter.
It happens that judges cannot freely evaluate the situation of persons concerned, but have to restrict
their decisions to conform to insufficient budgets. Moreover, the legal aid scheme does not set a
satisfactory appeal system which would keep the decision-making process under adequate control
of higher instance courts. None of the Polish authorities concerned seems to gather or examine
sufficient amount of data in order to properly assess or draw conclusions whether the legal aid
system works and meets both the standards required and the needs of the indigent persons. In the
light of the above-expressed concerns we are looking forward to obtaining a Honourable Court’s
view.
404142
40
Aleksandra Jeżowska-Minárik, magister iuris (University of Wrocław, Poland), LL.M in International
Business Law (Central European University, Budapest). She worked for several years in Warsaw offices of Baker &
McKenzie and Norton Rose. In 2004 she was a lawyer in the European Court of Human Rights.
41
Adam Bodnar, magister iuris (University of Warsaw, Poland), LL.M. in Comparative Constitutional Law
(Central European University, Budapest). He worked for several years in the Warsaw office of Weil, Gotshal &
Manges. Since 2004 he is a coordinator of the strategic litigation program in the HFHR.
42
Andrzej Rzepliński, professor of law, member of the Management Board of the HFHR, and head of the legal
programs of the HFHR, head of the Centre of Human Rights Studies, University of Warsaw, Poland.
11