European Court of Human Rights - case of Staroszczyk v. Poland  (2007) (excerpts)

European Court of Human Rights - case of Staroszczyk v. Poland  (2007) (excerpts)

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114. Secondly, under Article 57 of the Body of Ethical Rules and Dignity of Advocate Profession an advocate could refuse to prepare a cassation appeal if he or she was of the opinion that there were no reasonable prospects of its success.

115. This principle that a legal aid lawyer could refuse to draw up a cassation appeal had been confirmed by the resolution of the Supreme Court of 28 September 2000. The Supreme Court had 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 was only the Regional Bar Council who was competent to countenance such a refusal. The Supreme Court had also observed that this notion of “important reasons” had not been defined by law. It had been of the view that Article 57 of the Body of Ethical Rules and Dignity of Advocate Profession, insofar as it referred to the lack of prospects of success of this remedy, should serve as a basis for interpretation of this notion.

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135. The Court is further of the view that when examining the circumstances of the present case it must have regard to the specific features of the Polish system of legal aid.  In this respect, the Court deems that the refusal of a legal aid lawyer should meet certain quality requirements. In particular, the refusal must not be formulated in such a way as to leave the client in a state of uncertainty as to its legal grounds. In this connection, the Court observes that under the applicable domestic regulations the legal aid lawyer was not obliged to prepare a written legal opinion on the prospects of the appeal. Nor did the law set any standards as to the legal advice he had to give to justify his refusal to lodge a cassation appeal. As a result, in the present case the lawyer did not prepare such opinion and only informed the applicants orally about his refusal to lodge a cassation appeal on their behalf. The Court notes in this connection that the Constitutional Court, in its judgment of 31 March 2005, observed that the legal provisions concerning the admissibility conditions of a cassation appeal applicable at the relevant time had given rise to serious interpretational difficulties and discrepancies in the case-law of the Polish courts (see § 50 above).

136. The Court is of the view that if requirements concerning the written form of refusal, including the reasons for it, to draw up a cassation appeal had existed, they would have rendered possible an objective post hoc assessment of whether the refusal to prepare the cassation appeal in a given individual case had been arbitrary. This is particularly important in view of the difficulties involved in such an assessment, highlighted by the Constitutional Court.

137. Consequently, the lack of the written form of refusal left the applicants without necessary information as to their legal situation and, in particular, the chances of their cassation appeal to be accepted by the Supreme Court. The mere fact that the timing of the refusal seemed unobjectionable could not cure this deficiency.