Information Note on the Court’s case-law No. 119
May 2009
Kulikowski v. Poland - 18353/03
Judgment 19.5.2009 [Section IV]
Article 6
Criminal proceedings
Article 6-1
Access to court
Court’s failure to inform the accused that they had a new time-limit for lodging a cassation appeal after their legal-aid lawyers had refused to assist them: violation
[This summary also covers the Judgment in the case of Antonicelli v. Poland, no. 2815/05, 19 May 2009]
Facts: Both applicants were convicted in criminal proceedings at first instance, and had their convictions upheld on appeal. They were prevented from appealing to the Supreme Court – where legal representation was compulsory – after the lawyers who had been appointed to assist them under the legal-aid scheme declined to act after advising that an appeal had no reasonable prospects of success. The domestic courts informed the applicants of that refusal and did not appoint other lawyers to assist them further.
Law:The Polish criminal procedural law required a lawyer to assist individuals whose conviction had been upheld by an appellate court in the preparation of their cassation appeals. The Supreme Court had recognised that difficulties might arise for convicted individuals to have access to the cassation court in cases in which their legal-aid lawyers had withdrawn from the case. Hence, it had held that the time-limit for lodging a cassation appeal started to run only on the date on which the defendant was informed of the lawyer's refusal to assist him further. It could not therefore be said that the applicants had been left with so little time to have a cassation appeal prepared that they had been denied a realistic opportunity of having their case brought to and argued before the cassation court (compare and contrast with Siałkowska v. Poland, in Information Note no. 95, where the time‑limit had started to run when the legal-aid lawyer had been served with the judgment and the applicant had been informed of the lawyer's refusal only three days before the expiry of the time‑limit). Moreover, it had not been shown or argued that it would have been impossible for them to find a new lawyer to represent them.The fact that neither applicant had been financially able to hire a lawyer of his own choice did not raise an issue under Article 6, as that Article did not oblige a State to ensure assistance by successive legal-aid lawyers for the purposes of pursuing legal remedies which had already been found not to offer reasonable prospects of success. In the absence of indications of negligence or arbitrariness on the lawyers’ part, the State could be said to have complied with its obligations to provide effective legal aid to the applicants in connection with the cassation proceedings. However, the relevant court of appeal had failed to inform the applicants of their procedural rights and the time-limit, as required by the case-law of the Supreme Court. The applicants, who had been left without legal representation, had therefore no way of knowing that they had a new time-frame within which to find a lawyer who might be persuaded to file a cassation appeal on their behalf. To that limited but crucial extent, the relevant procedural framework available under Polish law had been deficient in the applicants’ case, with the result that their right of access to the Supreme Court had not been secured in a “concrete and effective manner”.
Conclusion: violation (unanimously).
Article 41 –EUR 3,000 to Mr Kulikowski in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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