European Court of Human Rights - case of Kulikowski v. Poland  (2009) (excerpts)

European Court of Human Rights - case of Kulikowski v. Poland  (2009) (excerpts)

(...)


65. In this connection, the Court notes that the Supreme Court in a series of decisions noted the difficulties which could arise for the defendant in securing an effective access to the cassation court where the grant of legal aid for the purposes of cassation proceedings had been made but the legal aid lawyer subsequently concluded that a cassation appeal offered no prospects of success. The Supreme Court has examined the manner in which the beginning of the relevant time-limit should be determined in such special circumstances. It held, in its decision of 26 February 2002, that following a legal aid lawyer's refusal to prepare a cassation appeal the event triggering the running of the relevant time-limit should be established in such a way as to accommodate the defendant's situation so as not to deprive him of a practical possibility of having his or her case examined by the Supreme Court. Hence, it 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, not when the lawyer was served with the judgment of the second-instance court.

70. The Court is therefore of the view that, to that limited but crucial extent, the relevant procedural framework available under Polish law as from February 2002 was deficient in the applicant's case. The failure of the Katowice Court of Appeal to inform the applicant, who was not represented by a lawyer, of his procedural rights meant that he had no way of knowing that he had a new time-frame within which to find a lawyer who might be persuaded to file a cassation appeal on his behalf. The Court notes in this connection that the procedural framework governing the making available of legal aid for a cassation appeal in criminal cases, as described above, is within the control of the appellate courts. When notified of a legal-aid lawyer's refusal to prepare a cassation appeal, it is entirely appropriate and consistent with fairness requirements, that an appeal court indicate to an appellant what further procedural options are available to him or her. The Supreme Court's case-law stresses this point. However, in the instant case this requirement was not complied with, with the result that the applicant's right of access to the Supreme Court was not secured in a “concrete and effective manner”.