Rejection of the appeal due to failure to file a second copy of the appeal does not infringe the fair trial since the party was repeatedly informed of this obligation


Kunert v. Poland 04.04.2019 (no. 8981/14)

see here


Access to court. Dismissal of the applicant’s appeal for failure to file a second copy with the Registry of the Court. According to the European Court of Human Rights, the disputed claim does not appear to be a disproportionate obstacle to the very substance of the right of access to a court, since the applicant, on one hand, had received the general information that all the documents had to be submitted to the court in two copies and then informed the court that he was unable to comply with that obligation. The Court considered that he did not show the deligence that is usually expected from a party in civil proceedings. No violation of Article 6 (1) of the ECHR.


Article 6


The applicant, Wojciech Kunert, is a Polish national who was born in 1973 and lives in Wrocław

The case concerned conditions of detention and an alleged denial of access to court.

Mr Kunert was detained in Wrocław Remand Centre for various periods between 1991 and 2014,
including from June 2009 to October 2010. During his detention, between 29 July and 26 August
2009 he was held in overcrowded cells in which the space per person was below the Polish statutory
minimum standard of 3 sq. m.

In April 2011 he brought a civil claim before the courts against the State Treasury for infringement of
his personal rights and for compensation on account of his detention in overcrowded cells. In the
course of the proceedings the court rejected an application for legal aid but instructed him that all
pleadings should be submitted in two copies.

In October 2012 the Wrocław-Śródmieście District Court dismissed his claim. The court found that
the applicant’s cells had indeed been overcrowded for approximately one month, but that he had
failed to demonstrate that the defendant’s actions had been unlawful.

On 10 October 2012, he lodged a letter with the court which it treated as an appeal, however, there
was only one copy of it. In December 2012 Mr Kunert lodged a request for leave to appeal out of
time against the judgment, as well as two copies of a letter entitled “appeal”.

The court dismissed the applicant’s request for leave to appeal, and explained that he had already
lodged his appeal on 10 October 2012. It further issued an order and instructed him to comply with
the formal requirements of his appeal by submitting a copy of it within seven days.

Shortly afterwards, Mr Kunert submitted a letter in which he informed the court that he was unable
to comply with the order because he did not have the text of his appeal that he could copy or
rewrite and he did not remember the exact wording. He added that he had not been aware that he
should have submitted his appeal in two copies. However, in March 2013 the court rejected his
appeal for failure to submit an exact copy of it.

An interlocutory appeal by Mr Kunert was dismissed on the grounds that he, the person who had
started a civil action and had known that he had been deprived of his liberty, could justifiably be
expected to keep copies of all letters he sent to the court, especially since he had been informed
that two copies of all such letters had to be submitted.

Relying in particular on Article 6 § 1 (right to a fair trial) of the European Convention on Human
Rights, Mr Kunert complained that the rejection of his appeal for failure to send an identical copy of
the appeal to the court had deprived him of the right of access to a court.


Non violation of Article 6

It is for the Court to examine whether, in the circumstances of the present case, the Wrocław-Śródmieście Regional Court decision and later the Wrocław Regional Court decision to reject the applicant’s appeal violated his right of access to a court.

The Court notes that the applicant was deprived of his liberty and that he was not represented by a lawyer during the civil proceedings that initiated the proceedings. The application for legal aid was rejected twice. In those circumstances, he could only rely on his own knowledge and the information provided to him by the national courts on the procedural rules governing civil proceedings.

The Court also notes that prior to the judgment of the Court of First Instance on 28 August 2012, the applicant was informed of the obligation to file all the pleadings  in two copies. On 10 October 2012, before which he was instructed to file a complaint, he sent a letter to the court, which was considered by the court to be an “appeal”. At that time, the applicant was deprived of legal aid for the second time. The Court also notes that the domestic court’s order issued after the first instance court ruling on the time and method of appeal did not contain the information that each appeal should be sent in two copies.

Under those circumstances, the question arises as to whether it was reasonable  to expect that the applicant knew that an appeal would have to be lodged in two copies.

The Court considers that this intervention seeks a legitimate aim, namely the proper administration of justice. Next, it must be ascertained whether, having regard to all the relevant circumstances of the case, there was a reasonable relationship of proportionality between that objective and the means used to achieve that objective. The Court has already examined a similar case in the event that an action filed by one applicant was rejected on the ground that he did not submit a second copy. In that case, an infringement was found because, firstly, the applicant had not been informed of the obligation to lodge a complaint in several copies and, on the other hand, had shown the diligence normally required by the party in civil proceedings: he had asked the national court of a copy of his initial appeal and, when his request was not answered, he submitted to the court a manuscript of his original appeal.

On the contrary, in the present case, although the applicant had received general information on 28 August 2012 that all the documents had to be submitted before the court in two copies, he lodged his appeal only in one copy. He then informed the court that he was unable to comply with this provision. However, he failed to take further action. In particular, he did not try to file a manuscript copy of his initial appeal before the court. In view of all the circumstances of the present case, the Court took the view that it was not unreasonable to expect the applicant to lodge an appeal by submitting two copies. At the same time, he considers that the applicant did not show the diligence usually expected of a party in civil proceedings. In view of the above, the Court found that the claim at issue did not appear to be a disproportionate obstacle to the very substance of the applicant’s right of access to a court, as guaranteed by Article 6 § 1 of the Convention. Therefore, the applicant’s access to a court was not unjustifiably limited in the present case.

As regards the Government’s arguments concerning the Siwiec case, the Court has already held that the facts of this case must be distinguished from its case-law on access to court and excessive formalism. The Court sees no reason to decide otherwise in this case.

Consequently, there was no violation of Article 6 of the Convention ( editing).



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