PROCEDURE

The case originated in an application (no. 28095/08) 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”) by a Polish national, Mr Witold Siwiec (“the applicant”), on 14 May 2008.

The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz of the Ministry of Foreign Affairs.

The applicant complained that he had been unable to present his civil case to the courts on an equitable basis vis-à-vis the opposite party.

On 11 October 2010 the President of the Fourth Section decided to give notice of the application to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1960 and lives in Zabrze.

From 2000 until 2004 the applicant ran a business, a shoe shop, with his wife.

In October 2004 he started serving a prison sentence.

On 4 September 2006 he lodged a civil action against his wife with the Łuków District Court, claiming that she should transfer the lease of the shop to him, together with the merchandise which had been left there at the time of his arrest. He also claimed compensation for damage which he had allegedly sustained as a result of her having unlawfully taken over the business after his arrest, in the amount of 2,000 Polish zlotys (PLN) per month since October 2004.

He further requested exemption from court fees. In the statement of claim he informed the court that his opportunity to represent himself properly had been curtailed by the fact that he was serving a prison sentence.

The proceedings were conducted under the procedural provisions of the Code of Civil Procedure pertaining to commercial disputes, providing, in particular, for certain restrictions as regards time-limits for proposing evidence to be examined by the first-instance court (prekluzja dowodowa).

On 20 December 2006 the Lublin Regional Court exempted the applicant from the obligation to pay court fees in the amount of PLN 5,850 but maintained his obligation to pay other court fees as they arose in the future. The court noted that the applicant was poor and did not have any savings which would secure his procedural interests in the proceedings.

On 22 February 2007 the applicant requested that witness C.O., the owner of the shop, be heard by the court to testify on the lease.

On 7 May 2007 the court issued a decision dismissing the applicant’s request for the witness C.O. to be heard. The court reiterated that according to Article 47912 § 1 of the Code of Civil Procedure the applicant’s request had to be refused, as he had failed to submit it with his statement of claim. The court further noted that the requested evidence was of no importance for the case. The decision was sent to the applicant. It was served on him on 30 May 2007.

A date for the hearing was scheduled for 11 June 2007.

By a letter of 31 May 2007 the applicant requested the court to arrange for him to be brought to the hearing from Biała Podlaska Prison, where he was detained at that time. He also reiterated that witness C.O. should be questioned and requested that K.M. and A.M. also be heard by the court as witnesses. The applicant failed to submit copies of his request to the court as required by Article 128 § 1 of the Code of Civil Procedure (see paragraph 28 below).

On 11 June 2007 the court requested the applicant to complete his request by submitting copies of it with a view to having them served on the defendant. The applicant failed to comply with the court’s request.

A hearing in the case was held on the same day. It lasted five minutes. The defendant stated only that she did not accept the applicant’s claim. The applicant was neither present nor represented.

The court gave a judgment on 25 June 2007. It dismissed the applicant’s claim, finding no grounds on which to accept that he had suffered any damage or that the defendant had been acting unlawfully.

In the written reasons for that judgment the court referred to Article 47912 § 1 of the Code of Civil Procedure (see paragraph 27 below) and held that the applicant’s request for C.O. to be heard as a witness had been submitted too late. It should have been submitted with the statement of claim. The court did not refer to the applicant’s request to be brought to the hearing held on 11 June 2007.

The applicant appealed. He argued that the first-instance court had assessed the evidence wrongly and reached untenable conclusions. He further submitted that he was serving a prison sentence and that it was therefore very difficult for him to effectively defend his interests in the proceedings. He requested exemption from all court fees and for a legal‑aid lawyer to be assigned to represent him before the appellate court.

By a decision of 1 October 2007 the Lublin Regional Court refused to grant legal aid to the applicant, finding that he was able to present his own case to the court. The court was of the view that the fact that his claim had been dismissed was not tantamount to a finding that the applicant was unable to argue his case. The court exempted him from the obligation to pay court fees in the amount of PLN 6,750 and dismissed the remainder of his request. It noted that the applicant remained in prison and that his financial situation had not improved since the previous decision on court fees had been given (see paragraph 10 above).

The applicant appealed against this decision in so far as it related to the refusal of legal aid. He submitted that the fact that he was relatively articulate did not suffice for a finding that he was able to prepare and present legal arguments to the appellate court in a sufficiently competent manner. He reiterated that he was serving a prison sentence, which made it difficult for him to act effectively in defence of his interests in the proceedings.

On 30 October 2007 the Lublin Court of Appeal dismissed his appeal against the refusal to grant legal aid, essentially sharing the views of the first‑instance court. It further noted that the fact that the applicant was serving a prison sentence did not of itself justify assigning a lawyer to the case, because it was not necessary for the applicant to appear in person before the court.

On 18 December 2007 the Lublin Court of Appeal dismissed the applicant’s appeal against the first-instance judgment, essentially sharing the conclusions of the first‑instance court. The court accepted that the case concerned a commercial dispute and was therefore governed by the more strict regulations of the Code of Civil Procedure. In the written grounds for the judgment the court relied on the parties’ statements of claims and on the defendant’s statements made before the court.

This judgment was served on the applicant on 29 January 2008.

On 6 February 2008 the Lublin Court of Appeal granted the applicant legal aid for the purposes of preparing a cassation appeal. On 11 February 2008 the Lublin Bar Association assigned M. K. to the case.

By a written legal opinion dated 25 February 2008 the lawyer informed the applicant that he was refusing to prepare a cassation appeal in the case. He was of the view that there were no legal grounds on which such an appeal could be prepared. This opinion was served on the applicant shortly afterwards.