CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 28 février 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD6845F38 { font-family:Arial; color:#0072bc } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s46DB5BA6 { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s4598CDF { width:70.9pt; display:inline-block } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s68D1564D { width:34.89pt; display:inline-block } .s543FF837 { width:151.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIRST SECTION DECISION Application no. 26750/16 Nina WIERZBICKA against Poland   The European Court of Human Rights (First Section), sitting on 28   February 2023 as a Committee composed of:   Lətif Hüseynov , President ,   Krzysztof Wojtyczek,   Ivana Jelić , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   26750/16) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 19 April 2016 by a Polish national, Ms Nina Wierzbicka (“the applicant”), who was born in   1948, lives in Cracow and was represented by Mr Z. Cichoń, a lawyer practising in Cracow; the decision to give notice of the application to the Polish Government (“the Government”), represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the domestic courts’ refusal to appoint to the applicant a legal aid lawyer who could lodge a   cassation appeal with the Supreme Court on her behalf. 2.     The applicant was born in Novosukhotino in Kazakhstan, where her family had been deported in 1936. She moved to Poland in 1999. Since 2   July 2003 she has been receiving a retirement pension from the State. On 2   November 2003 the Head of the Office for War Veterans and Victims of Oppression awarded her a monthly payment in connection with the deportation of her family. Subsequently, the authorities refused the applicant’s request for a disability pension in connection with her incapacity to work resulting from her family’s deportation in 1936. Her appeals were dismissed by the Cracow Regional Court on 15 May 2009 and the Cracow Court of Appeal on 15 June 2010. On 24 March 2011 the Supreme Court refused to entertain a cassation appeal lodged in the case by the applicant. 3.     On 14 September 2012 the applicant lodged a new request with the Cracow Social Security Board for a disability pension, claiming that she had been unable to work owing to her family’s deportation to Kazakhstan. 4.     On 4 December 2012 the Board refused her request. The applicant appealed against that decision. 5.     On 30 October 2014 the Cracow Regional Court dismissed her appeal. The court heard expert evidence and noted that the domestic courts had already examined and dismissed a similar claim for a disability pension made by the applicant. A further appeal by the applicant against that judgment was dismissed by the Cracow Court of Appeal on 8 July 2015. 6.     On 16 September 2015 the applicant lodged an application with the Cracow Court of Appeal for a legal aid lawyer who could lodge a   cassation appeal with the Supreme Court on her behalf. 7.     On 13 October 2015 the Cracow Regional Court, to which the application had been transferred, dismissed it. The court stated that the applicant had obtained from the State a small house in which she had been living on her own. She had a stable income – a retirement pension of 880   Polish zlotys (PLN – approximately 220   euros (EUR)) per month and a benefit for war veterans of PLN   400 (approximately EUR   100). Her expenses amounted to PLN   800 (approximately EUR   200) for the upkeep of her house and the costs of food and medicine. The court acknowledged that a cassation appeal could only be lodged by a lawyer and noted that a decision to grant legal aid depended on an assessment of the financial standing of the person applying for it. The court assessed the applicant’s financial situation as difficult but concluded that, in view of the documents she had presented and taking into account her stable income, her financial situation was not such as to prevent her from accumulating the resources necessary to hire a professional lawyer. 8.     The applicant lodged an appeal against that decision. 9.     On 24 November 2015 the Cracow Court of Appeal dismissed her appeal. It pointed out that the social minimum income (poverty threshold) for a one-person household was PLN   1,070.65 (approximately EUR   268) and that the applicant’s income “significantly exceeded” ( znacznie przekracza ) that threshold. The court concluded that that the applicant had been able to cover the costs of a lawyer without any detriment to her essential standard of living. 10.     The applicant complained under Article 6 § 1 of the Convention of a lack of access to the Supreme Court. THE COURT’S ASSESSMENT 11.     The applicant argued that the domestic courts had issued an arbitrary decision in finding that as her income was above the poverty threshold, it would have been possible for her to pay the costs of a lawyer. The applicant further contested the Government’s argument that her civil case had been previously examined at three levels of jurisdiction. Had that been the case the domestic courts would have rejected it as res judicata . 12.     The Government contended that the application was manifestly ill ‑ founded as the domestic courts had thoroughly examined the applicant’s financial standing and considered that it had not warranted the appointment of a legal aid lawyer. The related matter of the disability pension had already been examined by the national courts, including the Supreme Court, and therefore the cassation appeal would in any event not have been examined on the merits because it had not complied with the strict admissibility criteria. Finally, the applicant had not been prevented from lodging a cassation appeal, as in fact she still had some two months after the dismissal of her request for legal aid to appoint a representative of her choice who would lodge the cassation appeal on her behalf. 13.     The Court notes that the right of access to a court is not absolute and may be subject to restrictions, provided that they pursue a legitimate aim and are proportionate. 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 (see Steel and Morris v.   the United Kingdom , no. 68416/01, § 62, ECHR 2005-II). 14.     The Court has also held that the requirement for an appellant to be represented by a qualified 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 domestic court examining appeals on points of law (see Tabor v. Poland , no.   12825/02, §   42, 27   June 2006). 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 enjoy before them the fundamental guarantees of a fair hearing contained in that Article (ibid., § 42, with further references). 15.     Turning to the circumstances of the present case, the Court notes that the Cracow Regional Court   gave detailed reasons for its refusal to appoint a legal aid lawyer for the applicant for the purposes of lodging a cassation appeal (compare and contrast Tabor , cited above, § 44). The court examined the financial standing of the applicant and compared it with statistical data pertaining to the income poverty thresholds in Poland at the material time. According to the court’s assessment, the applicant’s income, although modest, should have allowed her to cover the costs of legal representation at the cassation level. The domestic courts assessed the matter of legal aid at two levels of jurisdiction in extensively reasoned decisions. 16.     There is nothing to indicate that the domestic courts failed to display the necessary diligence in examining the applicant’s application for legal aid or that they relied on incorrect information or irrelevant arguments. For instance, the domestic courts correctly recognised that legal representation in the cassation proceedings was mandatory and limited their examination to the assessment of whether the applicant’s financial standing allowed her to bear the costs of that representation (compare and contrast Wieczorek v.   Poland , no.   18176/05, §   48, 8 December 2009). 17.     The Court reiterates that it is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his or her case effectively before a court. In the present case the applicant lodged at least two requests for a disability pension on the basis that she had been a child of a Polish family that had been deported to Kazakhstan in 1936. The first request was examined by the relevant authorities, and then by the Cracow Regional Court and the Cracow Court of Appeal. In that set of proceedings the applicant lodged a cassation appeal which the Supreme Court refused to examine on 24 March 2011. The applicant repeated her request for a disability pension on the same grounds in 2012; the case was examined on the merits by the Social Security Board and by the courts at two levels of jurisdiction. The authorities and the courts examined expert evidence and the relevant domestic law and concluded that the applicant had not fulfilled the statutory requirements to obtain the pension. In such circumstances it cannot be said that the fact that the case was not examined by the Supreme Court at the third level of jurisdiction amounted to a denial of an opportunity for the applicant to present her case. 18.     Finally, the Court notes that the domestic authorities dealt with the question of legal aid speedily and the applicant still had time to lodge a cassation appeal within the relevant time-limit. The applicant was therefore not left without any realistic opportunity of lodging a cassation appeal (compare and contrast Tabor , cited above, §   46). 19.     It follows from the above that the application is manifestly ill ‑ founded and must be rejected in accordance with Article   35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 23 March 2023.     Liv Tigerstedt   Lətif Hüseynov   Deputy Registrar   President