CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 15 juin 2006

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s84D0D60A { width:8.36pt; 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 } .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 } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8F4EE4B8 { margin-top:6pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s684F2214 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s25BD2B45 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9DAED311 { width:4.99pt; text-indent:0pt; display:inline-block } .sEC2CB098 { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt; text-align:justify } .s197FB613 { margin-top:6pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s21F08A35 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } .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 } .s988F61DE { margin-top:12pt; margin-left:21.25pt; margin-bottom:18pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sB1BD30C0 { margin-top:6pt; margin-left:21.25pt; margin-bottom:24pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s804EF768 { margin-top:24pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9C864DC2 { width:5.6pt; text-indent:0pt; display:inline-block } .sA284A115 { width:11.79pt; text-indent:0pt; display:inline-block } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s6B4F6559 { width:11.13pt; text-indent:0pt; display:inline-block } .sB6F98828 { margin-top:12pt; margin-left:36.6pt; margin-bottom:18pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s360DA689 { margin-top:18pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sB12058F2 { width:8.11pt; text-indent:0pt; display:inline-block } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sC83D396C { width:7.56pt; text-indent:0pt; display:inline-block } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sE5338F84 { margin-top:12pt; margin-left:14.2pt; margin-bottom:12pt; text-align:justify } .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 } .s2DF49AA6 { width:24.54pt; display:inline-block } .sA9E99AE7 { width:197.77pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 8932/05 by Krystyna SIAŁKOWSKA against Poland lodged on 28 February 2005 The European Court of Human Rights (First Section), sitting on 15 June 2006 as a Chamber composed of:   Mr   C.L. Rozakis , President ,   Mr   L. Loucaides ,   Mrs   F. Tulkens ,   Mrs   N. Vajić ,   Mr   A. Kovler ,   Mrs   E. Steiner ,   Mr   L. Garlicki, judges , and Mr S. Nielsen , Section Registrar , Having regard to the above application lodged on 28 February 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the comments submitted by the Helsinki Foundation for Human Rights, Warsaw, and by the Council of Bars and Law Societies of Europe; Having regard to the parties’ oral submissions at the hearing on 15 June 2006, Having deliberated, decides as follows: THE FACTS The applicant, Ms Krystyna Siałkowska, is a Polish national who was born in 1950 and lives in Wrocław. She is represented before the Court by Ms Bogdana Słupska-Uczkiewicz, a lawyer practising in Wrocław. At the hearing held on 15 June 2006 the respondent Government were represented by their Agent, Mr Jakub Wołąsiewicz, assisted by Ms Eliza Suchożebrska and Ms Malgorzata Kosicka, Advisers. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. After the applicant’s husband had died in September 2002, she instituted proceedings in which she claimed her widow pension. By a decision of 3 October 2002, the social insurance authority dismissed her request. On 4 March 2003 the Wroclaw Regional Court dismissed her appeal against this decision. On 2 September 2004 the Wroclaw Court of Appeal dismissed her further appeal. The appellate court observed that the findings of fact made by the social insurance authority were correct. The applicant and her husband had de facto separated in 1994. He had been living since then with another woman. The applicant had not been receiving any maintenance payments from him. When he had fallen ill, she had not been taking care of him and she had been informed of his poor health only in March 2002. The court considered that the lower court had not erred when it assessed the testimony of one witness, who had submitted that the couple had been living together, as not being credible. The appellate court concluded that legal requirements for grant of widow pension were not complied with. The applicant requested that legal aid for the purposes of lodging a cassation appeal be granted to her and her request was allowed. The court requested the local Bar Association to assign a lawyer to the case and advocate Z.W. was so assigned on 17 September 2004. The copy of the judgment of the appellate court was served on Z.W. on 9   November 2004. By a written opinion of one page and a half dated 3 December 2004 Z.W. advised the applicant that, in his view, a cassation appeal against the judgment of the appellate court did not offer reasonable prospect of success. He referred to the written grounds of the judgment of the appellate courts by which that court had explained why the applicant had not complied with the requirements of the applicable law, and considered that in the light of the evidence examined by the courts, there were no grounds on which to argue that the second-instance judgment was in breach of the law. Consequently, he did not draw up the cassation appeal. The opinion contained the following paragraph: “I would like to stress that the judgment of the Wroclaw Court of Appeal of 2   September was served on me on 9 October ( sic ) 2004 and that the thirty-day time-limit for the lodging of a cassation appeal expires on 9 December 2004.” On 6 December 2004 the applicant had a meeting with the lawyer at his office. He gave her his opinion and informed her that he saw no grounds on which to prepare a cassation appeal in her case. On the same occasion the applicant was served with the copy of the appellate court’s judgment with its written grounds. B.     Relevant domestic law and practice 1.   Relevant provisions of the Constitution Article 45 of the Constitution, insofar as relevant, reads: “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. ...” Article 17 of the Constitution, insofar as relevant, reads: “By means of a statute, associations may be created within a profession in which the public repose confidence, and such professional associations shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, public interest.” 2.   Legal aid Pursuant to Article 5 of the Code of Civil Procedure, a court should give all necessary procedural instructions to a party acting without a lawyer and, in particular should indicate the consequences of that party’s acts or failures to act. Article 113 § 1 of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. Pursuant to Article 117 of the Code, persons exempted from the court fees may request that legal aid be granted to them. The court will then request the relevant District Bar Association or the District Chamber of Legal Advisers to assign an advocate or a legal adviser to the claimant’s case. 3.   The cassation appeal At the material time, a party to civil proceedings could lodge a cassation appeal with the Supreme Court against a judicial decision of a second-instance court which terminated the proceedings. Under Article 393 4 § 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 with its written grounds was served on the party concerned. Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected. Article 393 1 of the Code as applicable at that time listed 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.” Article 393 3 specified the requirements of a cassation appeal. It read in its relevant part: “§ 1.     A cassation appeal should include: 1)     an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only; 2)     an indication of the grounds for the cassation appeal; 3)     arguments showing that its examination would be justified; 4)     a motion to have the decision under appeal quashed or amended, specifying also the scope of the motion.” Article 393 4 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 (...).” The reasons justifying the examination of a cassation appeal by the Supreme Court could be inferred a contrario from Article 393 of the Civil Code of Procedure which, as applicable at that time, read, in its relevant part: “1.     The Supreme Court may refuse to entertain the cassation appeal, if: i)     there is no appearance of any significant legal issue in the case, ii)     there is no need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts’ case law, iii)     the appeal is manifestly ill-founded. 2.     Paragraph 1 shall not apply if the judicial decision challenged manifestly breached the law or where the proceedings are invalid in law.” 4.   Relevant provisions of the Bar Act Article 1 of the Bar Act of 1982, as amended, reads, insofar as relevant: “1.     The Bar is established to provide legal assistance, co-operate in protecting a person’s rights and freedoms as well as to formulate and apply the law. 2.     The Bar is organized as a self-governing association. 3.     An advocate whilst executing his/her professional duties is accountable only to the law.” Article 3 of the Act provides as follows: “The general tasks of the professional Bar Council are as follows: 1)     creation of conditions for the performance of the Bar’s statutory tasks, 2)     representation of the Bar and protection of its rights, 3)     supervision over the observance of the rules regulating the practice of the profession, 4) development of professional skills and training of advocates, 5) determination and promotion of professional ethics and ensuring their observance, 6) management (...) of the Bar’s assets.” Article 28 of the Act reads: “1. An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party. Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local Bar Council, and in situations where time is of the essence, by the Dean of that Council. 2. In cases where legal assistance is granted on the basis legal regulations concerning legal aid, only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance.” Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by the Bar Association. They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court. Under Article 57 of the Body of Ethical Rules adopted by the National Bar Council on 10 October 1998, when an advocate, either privately hired by the client or appointed under legal aid scheme, considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view, the lawyer shall give notice of termination of the power of attorney terminate the representation, or notify the refusal to the body which appointed him or her. 5 .   Resolution of the Supreme Court of 2001 (III CZP 14/00) In 2001 the Supreme Court issued a resolution in reply to a legal question whether a legal aid lawyer could refuse to lodge a cassation appeal. It replied to the question in the positive. It observed that issues involved in the legal aid concerned not only proper administration of justice, but also touched on human rights, and a right of access to a court in particular. Nevertheless, there was no comprehensive and coherent regulation of legal aid available under Polish law. The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism from the access to the court point of view. However, a certain conceptual confusion was to be noted in provisions governing legal aid as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. In particular, the scope of legal aid lawyers’ obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure. The essential body of law concerning civil procedure had been enacted in 1964, while the provisions on mandatory legal representation for the purposes of the cassation appeal had been introduced in 1996, when this new kind of appeal had been created. As a result, the scope of legal aid lawyers’ obligations to provide a party to the proceedings with “legal aid” in civil proceedings before the Supreme Court was unclear. The court noted that the judicial practice regarding the application of relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case-law of the Polish courts. The court observed that the issue of possible conflicts between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law. It further noted that the notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client’s wishes. The role of a legal aid lawyer had rather to be understood as obliging him or her to provide legal advice to the party, including as to the prospects of success offered by a cassation appeal against a given judgment. The constitutional role of the Supreme Court, a highest judicial authority, was also an argument in favour of a conclusion that a legal aid lawyer was not compelled by the will of the party to have a cassation appeal lodged, even if such an appeal was bound to fail. In case of a disagreement between the party and the lawyer, it was open to the party to complain to the local Bar under Article 28 of the Bar Act. The Bar could then appoint a new lawyer who could lodge a cassation appeal, requesting, at the same time to be granted leave to appeal out of time under Article 169 of the Code of Civil Procedure. It was true that the practice of the Supreme Court was not coherent in that in some cases it had been rejecting such requests and in other it accepted them. However, it did not prevent the parties from having recourse to this course of action. 6.   Retrospective leave to appeal out of time Pursuant to Article 169 of the Code of Civil Procedure, a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time-limit; this measure shall be performed simultaneously with lodging the request. 7.   Service of court correspondence Article 133 § 3 of the Code of Civil Procedure reads, insofar as relevant: “3. If a legal representative or a person authorised to receive court correspondence on behalf of a party has been appointed in a case, the court correspondence shall be served on these persons.” C.   Code of Conduct of the Council of Bars and Law Societies of Europe The Council of Bars and Law Societies of Europe has adopted a Code of Conduct in the European Union. Its Article 1 provides that a lawyer must serve the interests of justice as well as those whose rights and liberties he or she is trusted to assert and defend and it is his or her duty not only to plead his or her client’s case but also to be his or her adviser. A lawyer’s function therefore lays on him or her a variety of legal and moral obligations, sometimes appearing to be in conflict with each other, towards the client, the courts and other authorities before whom the lawyer pleads his or her client’s case or acts on his or her behalf; the legal profession in general and each fellow member of it in particular; the public for whom the existence of a free and independent profession, bound together by respect for rules made by the profession itself, is an essential means of safeguarding human rights in face of the power of the state and other interests in society. Pursuant to Article 3.1.2 of the Code, a lawyer shall advise and represent his or her client promptly, conscientiously and diligently. Under Article 3.1.4 a lawyer shall not be entitled to exercise his or her right to withdraw from a case in such a way or in such circumstances that the client may be unable to find other legal assistance in time to prejudice being suffered by the client. COMPLAINTS The applicant complains under Article 6 § 1 of the Convention that the proceedings were unfair in that she was denied effective access to a court. She refers to the fact that the lawyer appointed under the applicable legal aid scheme refused to bring the cassation appeal to the Supreme Court against the second-instance judgment. She also maintains that due to an incorrect assessment of the available evidence the national courts reached erroneous conclusions. THE LAW 1.   The applicant complains under Article 6 § 1 of the Convention that the proceedings were unfair in that the lawyer appointed under the applicable legal aid scheme refused to bring the cassation appeal to the Supreme Court against the second-instance judgment. Article 6 § 1 of the Convention, in so far as relevant, reads: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A.   The Government’s objections as regards incompatibility ratione personae and exhaustion of domestic remedies a)   The Government argue first that the application is incompatible ratione personae with the provisions of the Convention. In the present case the court acknowledged the need for the applicant to be represented by a legal aid lawyer and such a lawyer was assigned to the case. However, any problems that might have arisen in connection with the issue of lodging of the cassation appeal between the applicant and the lawyer do not incur the liability of the State. The lawyer was a member of an independent and self ‑ governing professional association, which adopts its own rules of conduct and sets down its own disciplinary regulations. The public authorities do not exercise any direct control over the methods of the lawyers’ work and cannot impose on a legal aid lawyer an obligation to draw up a cassation appeal. It follows from the independence of the legal profession from the State that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed, and, as such, cannot, other than in special circumstances, incur the State’s liability under the Convention. The Government refer to the Court’s case law in similar cases ( Artico v. Italy , judgment of 13 May 1980, Series A no. 37, § 18; Daud v. Portugal , judgment of 21 April 1998, Reports of Judgments and Decisions 1998-II, §   33). They reiterate that special guarantees required with regard to defence rights in criminal proceedings are not applicable in the same way in civil proceedings ( Skrobol v. Poland , no. 44165/98, dec. 8 July 2003). The applicant disagrees with the Government and maintains that the State cannot be regarded as not bearing any responsibility for the conduct of legal aid cases such as this concerned in the present case. The Court considers that the Government’s objection is closely linked to the substance of the applicant’s above complaint under Article 6 § 1 of the Convention, and should be joined to the merits of the case. b)   The Government furthermore argue that the applicant failed to exhaust all the remedies available under Polish law as required by Article 35 § 1 of the Convention. If she was dissatisfied with the legal assistance she received from the officially appointed lawyer, it was open to her to make a complaint to the local Bar Association under Article 28 of the Bar Act and to ask that another lawyer be assigned to her case. If the local Bar Association had shared her doubts regarding the soundness of the lawyer’s refusal to draw up a cassation appeal, it could have appointed another lawyer to represent her. Even assuming that this new lawyer would not have had time to submit a cassation appeal within the time-limit provided for by law, he or she could do that after the expiry of that time-limit and, at the same time, request retrospective leave to appeal out of time. Secondly, the applicant could have appointed a lawyer of her own choice for the purposes of representing her before the Supreme Court. Thirdly, the applicant could also have requested the Minister of Justice, the Prosecutor General, or the Ombudsman, to lodge a cassation appeal on her behalf within six months from the date of the service of the judgment. Having regard to the subsidiary character of the supervision carried out by the European Court of Human Rights, the Government conclude that the application should be rejected for failure to exhaust relevant domestic remedies. The applicant submits that, having been served by her legal aid lawyer with the copy of the second-instance judgment on 6 December 2004, she was convinced that the thirty-day time-limit for lodging a cassation appeal had started to run, as she was informed by Z.W, on 9 October 2004. Accordingly, she believed that it had expired on 9 November 2004. Even assuming that she knew that on 6 December she still had three days within which to lodge a cassation appeal, she did not have any realistic opportunity to have a legal aid lawyer assigned to the case within such a short time and to have the appeal lodged on her behalf. The Court considers that the Government’s objection is closely linked to the substance of the applicant’s complaint under Article 6 § 1 of the Convention, and should therefore be joined to the merits of the case. B.   The substance of the application 1.   The parties’ submissions The Government point out that the applicant’s request to be granted legal aid for the purposes of legal assistance in connection with the cassation proceedings was granted. The State discharged hereby its obligations under Article 6 of the Convention to ensure effective access to a court by acceding to the applicant’s request for legal aid. Having carefully considered her case, the lawyer refused to prepare a cassation appeal on her behalf and provided a reasonable explanation of the reasons for his decision. The notion of legal aid, within the meaning of the applicable provisions of domestic law and of the resolution of the Supreme Court of 21 September 2000, is not limited to carrying out instructions of a client. Its essence consists in providing legal advice to the parties according to the lawyer’s best knowledge. Hence, a decision not to pursue the applicant’s case further also fell within the ambit of the notion of legal aid. The legal opinion of 6 December 2004 prepared by Z.W. was aimed at securing proper administration of justice in the cassation proceedings before the Supreme Court. The Government emphasise that this opinion was extensively reasoned. The legal aid lawyer stressed in his opinion that in the circumstances of the case there were no factual and legal grounds on which to lodge a cassation appeal. The Government further recall the Court’s case law to the effect that a State cannot be held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes ( Artico v. Italy , judgment of 13 May 1980, Series A no. 37, §   36). It follows from the independence of the legal profession from the State that the conduct of defence is essentially a matter between the defendant and his counsel, whether counsel be appointed under a legal aid scheme or be privately financed ( Kamasinski v. Austria , judgment of 19 December 1989, Series A no. 168, § 65). Lastly, the Government argue that a cassation appeal is an extraordinary remedy by which it is possible to challenge final judicial decisions. The recourse to this remedy should be limited to exceptional cases, the more so as the applicant’s case had been examined by two levels of courts with full jurisdiction as to the fact and law. The Government conclude that the system under which a legal aid lawyer can refuse to lodge a cassation appeal is compatible with the requirements of Article 6 § 1 of the Convention insofar as it guarantees a right of access to a court. The applicant submits that the compatibility of the legal aid system in civil cases in Poland, and in particular the issue of refusals to lodge cassation appeals by legal aid lawyers has to be seen against a general background governing cassation appeals introduced into the Code of Civil Procedure in 1996 as applicable at the material time. She draws the Court’s attention to Articles 393, 393 1 and 393 3 of that Code as applicable at the material time which, read together, defined conditions under which cassation appeals were deemed fit to be examined by the Supreme Court. The applicant argues that, given that these provisions were drafted in very broad terms, a decision whether a cassation appeal did comply with the conditions they defined was of a highly discretionary nature. A decision whether to accept a cassation appeal for examination was normally given by the Supreme Court within the framework of a so-called judicial pre-assessment of the cassation appeal. Under the applicable legal provisions as they stood at that time, a single judge of the Supreme Court was empowered to give such a decision. Moreover, the law did not provide for an obligation to provide reasons for it. Following the adoption of these provisions in 2001, a judicial practice developed under which many cassation appeals were rejected by unmotivated decisions of the Supreme Court. The applicant emphasises that this judicial practice seriously limited access to the Supreme Court and resulted in many cases being rejected by that court. In addition, under the legal aid provisions it was possible for a legal aid lawyer to carry out an assessment of prospects of success of cassation appeal before it was even drawn up. It was often the case that legal aid lawyers, bearing in mind serious difficulties in having a cassation appeal declared admissible and accepted for examination by the Supreme Court, refused to represent legal aid clients, arrogating thereby for themselves a judicial function which should have been carried out by that Court itself. As a result of a combination of these factors, access to the Supreme Court became unduly restricted. The applicant further submits that although, regard being had to the independence of the legal profession, the State cannot be held responsible for acts and decision of legal aid lawyers, it falls to the State to ensure effective access to justice. An effective exercise of the right of access to a court requires that the legal aid system should be organised in such a way as to make access to legal aid both transparent and effective. 2.   The third parties’ submissions a)   The Council of Bars and Law Societies of Europe The Council of Bars and Law Societies of Europe recalls that Article   6 §   1 of the Convention embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect ( Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom , judgment of 10 July 1998, Reports of Judgments and Decisions 1998 ‑ IV, §   72). In some circumstances, professional legal assistance is necessary to ensure that an individual enjoys the right to a court. This requirement may be fulfilled by the grant of legal aid. Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case ( Airey v. Ireland , judgment of 9   October 1979, Series A no. 32, §   26). Should a legal aid board determine that legal assistance is crucial for the proper conduct of a case, the right to effective access to a court demands that such representation be provided. Such is the situation also when successive lawyers refuse to act on the party’s behalf ( Bertuzzi c. France , n o   36378/97, §§ 27 - 32, CEDH 2003 ‑ III) The Council of Bars and Law Societies of Europe believes, considering the Court’s case-law and the Code of Conduct it has adopted and having regard to the general principles by which justice must be governed, that the Member States of the Council of Europe are under a general obligation to secure that the system under which a citizen is entitled to obtain legal aid provides effective representation in judicial proceedings. The Council stresses that access to justice shall be equal for all citizens. This principle can only be enforced if the equality of arms in the exercise of defence rights is guaranteed. Indeed, the principle of quality of arms is an aspect of a right to a fair hearing within the meaning of Article 6 § 1 of the Convention. This obligation is particularly important in those civil cases, in which – as the present case – a litigant opposes the State. Legal aid is one of the means to have the objective of fair access to justice realised. The Court has held in its case-law that legal aid serves the purpose of ensuring effective access to justice. In allowing citizens with very low financial means to be able to have recourse to legal aid assistance, the legal aid institutions allow them to obtain legal advice and identify legal remedies appropriate to their situation. To this effect, legal aid should be adequate and effective. There are various systems of legal aid in State Parties. Although legal aid institutions are responsible to ensure a satisfactory end result, i.e. adequate and timely appointment of a lawyer, it is the State Parties who bear the final obligation to ensure that the legal aid system, seen as a whole, is effective. This requirement of effectiveness is of a crucial importance, as the procedural requirements must be respected by the legal aid lawyer so that the client’s interests are well represented. While it is true that the guarantees of Article 6 § 1 of the Convention are not as extensive as those of Article 6 §   3 of the Convention, the requirements of a fair hearing call for legal aid to be available also in civil cases. As regards issues specifically linked with cassation proceedings, it is submitted that procedures similar to cassation appeal procedure before the Polish Supreme Court exist, albeit with different characteristics defined by laws governing civil procedure, in several State Parties. In those countries in which all lawyers are entitled to plead before the cassation court, as is the case in Poland, the principles governing legal aid must take into consideration the specificity of such procedures. As cassation appeals normally provide a legal framework specially designed for the purposes of judicial review of the lawfulness of decisions given by lower courts, special strict condition of admissibility apply to them. Lawyers are by definition best placed to judge whether any given case offers prospect of success before a cassation court. This discretion is a vital element of the independence of the legal profession and implies that the lawyer should freely take a decision not to submit an appeal to the court of cassation if he or she is of the view that relevant legal grounds for doing so do not obtain in the case. However, it logically follows from the principle of effectiveness of legal aid that the beneficiary of legal aid must have a reasonable possibility of asking for another legal aid lawyer to replace the first one, within a reasonable time-frame and taking into consideration the special characteristics of the cassation procedure. Short deadlines applicable in the cassation proceedings may in certain cases render such change of lawyers difficult, but legal aid scheme should allow such a change of counsel before the applicable deadline expires. In conclusion, the Council submits that the State Parties are obliged to see to it that an effective mechanism of legal aid allows adequate access to justice. The State Parties are responsible for ensuring that the system works efficiently. It is for the Court to examine on case-to-case basis whether this was indeed the case in various individual situations. However, no State Party shall bear the responsibility for actions of lawyers, acting as members of independent bar associations. Only where the legal aid scheme does not adequately meet the conditions of effectiveness, shall the role of the State be assessed by the Court, in order to determine whether the State has taken all measures to ensure fair access to justice. In order for the effective access to justice to be compatible with the requirements of Article 6 § 1 of the Convention, a balance should be struck between the possibility for a lawyer to refuse to represent a client and the opportunity for a party to the proceedings to request either a bar association or the court, as the case may be, to replace a lawyer by another one, with full respect of the independence of the legal profession. b)   The Polish Helsinki Foundation for Human Rights The Polish Helsinki Foundation for Human Rights submits that in civil cases, lack of legal aid can hinder resolution of disputes having an impact on civil rights and obligations of individuals. Taking into account the broad scope of cases considered as „civil” and their importance for individuals, the need for professional legal aid in civil proceedings is substantial for guaranteeing the access to court. The possibility to refuse the preparation of a cassation appeal by the advocate has an important impact on the access to legal aid and consequently on the right to a court. A cassation appeal lodged by the party personally, without the assistance of an advocate, fails to comply with legal requirements and will be dismissed by the court. The Civil Procedure does not provide mandatory representation in any type of cases. However, the lodging of a cassation appeal requires mandatory assistance of an advocate or legal advisor. Nonetheless, an ex officio advocate or legal advisor are not obliged by law to prepare and to submit a cassation appeal in every and each case. They can refuse to do so in two situations. Firstly, pursuant to Article 28 of the Bar Act, a lawyer can give notice on termination of power of attorney when he or she considers that an “important reasons” prevent him or her from further representing the client. He or she must notify the Regional Bar Council thereof. Secondly, under Article 57 of the Body of Ethical Rules and Dignity of Advocate Profession an advocate can refuse to prepare a cassation appeal if he or she is of the opinion that there are no reasonable prospects of its success. This principle that a legal aid lawyer can refuse to draw up a cassation appeal was confirmed by the resolution of the Supreme Court of 28   September 2000. The Supreme Court stated therein that such a refusal could only be justified by “important reasons” within the meaning of Article 28 of the Bar Act. In civil cases it is only the Regional Bar Council who is competent to countenance such a refusal. The Supreme Court also observed that this notion of “important reasons” was not defined by law. It was of the view that Article 57 of the Body of Ethical Rules and Dignity of Advocate Profession should serve as a basis for interpretation of this notion. The Foundation further stresses that legal provisions concerning refusal of legal assistance were unclear and provoked serious difficulties of interpretation. Until the Supreme Court’s resolution of 2000 even the case ‑ law of the Supreme Court in that matter was divergent. When a lawyer refuses to draw up a cassation appeal, he or she should notify his or her decision to the local Bar Council. However, there are no detailed rules determining what information or grounds should be specified in such notice. The commentaries to the Civil Procedure Code highlight that under current law there is no direct possibility to control the legitimacy of the advocate refusal in case when the advocate was appointed ex officio . If a client disagrees with the lawyer’s decision, he or she can complain to the local Bar Council. However, there are no regulations in force which would govern the procedure of examination of such complaints by the Bar. There are no further instruments allowing the party to obtain any answer from the Bar Council, or to obtain another legal aid lawyer for the purposes of preparation of the appeal. What is more, while the refusal to prepare and submit a cassation appeal has to be justified, there are no standards determining the manner and scope of such justification that has to be provided for by a lawyer. The applicable regulations, including the Code of Civil Procedure, fail to safeguard access to the Supreme Court in case of an arbitrary refusal to prepare and to submit the cassation appeal by a lawyer. The party does not possess any remedy or procedure at his or her disposal to review the well ‑ foundedness of the lawyer’s decision. Furthermore, the thirty-day time ‑ limit for the lodging of a cassation appeal as applicable at the material time was short. When a legal aid lawyer refused to draw up a cassation appeal made by the ex officio advocate, the party did not have enough time to lodge with the court a new motion for the appointment of another lawyer. The procedure of appointment of a legal aid lawyer was too long to make it possible for a new lawyer to submit the cassation appeal within the time ‑ limit. Lastly, as the costs of legal representation within the legal aid scheme are covered out of the State budget, the State should have, at least to some degree, a possibility of reviewing of the lawyer’s refusals to prepare cassation appeals in civil cases. 3.   The Court’s assessment The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint 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.   2.   The applicant further complains that the courts wrongly assessed evidence in the proceedings and, as a result, reached erroneous conclusions. Having regard to this part of the application, to all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Joins to the merits the Government’s objection as regards incompatibility ratione personae and exhaustion of domestic remedies; Declares admissible, without prejudging the merits of the case, the applicant’s complaint about the legal aid lawyer’s refusal to bring a cassation appeal to the Supreme Court; Declares the remainder of the application inadmissible.   Søren Nielsen   Christos Rozakis   Registrar   President