CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 19 mai 2009

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } .s6B505E72 { margin:0pt; padding-left:0pt } .s1C7BEF1E { margin-left:28.52pt; padding-left:7.48pt; font-family:serif } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sA36B60A1 { font-family:Arial; font-style:italic } .sADADF4A7 { font-family:Arial; text-decoration:underline } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }   400 19.5.2009   Press release issued by the Registrar   TWO CHAMBER JUDGMENTS AGAINST POLAND CONCERNING LEGAL ASSISTANCE   The European Court of Human Rights has today notified in writing its two Chamber judgments [1] in the cases of Kulikowski v. Poland ( application no. 18353/03 ) and Antonicelli v. Poland ( no. 2815/05 ). The cases concerned in particular the refusal of the lawyers, appointed by the domestic courts to represent Mr Kulikowski and Mr Antonicelli in criminal cases against them, to prepare cassation appeals in order to challenge their convictions before the Supreme Court.   The Court held unanimously that there had been:   a violation of Article 6 § 1 (access to court) in conjunction with Article 6 § 3 (right to a fair trial) of the European Convention on Human Rights, in both cases, on account of the court at second instance failing to inform Mr Kulikowski and Mr   Antonicelli of how much time they had available to lodge cassation appeals; and, a violation of Article 5 § 3 (right to liberty and security) in the Kulikowski case, on account of the excessively long time he spent in pre-trial detention.   Under Article 41 (just satisfaction) of the Convention, the Court awarded Mr Kulikowski 3,000   euros   (EUR) in respect of non-pecuniary damage, and EUR   1,150 for costs and expenses. The Court had awarded legal aid to Mr Antonicelli during the proceedings before it and, failing to see a causal link between the violation found and the pecuniary damage alleged, did not award him any sum for damages. (The judgments are available only in English.)   1.     Principal facts   Mr Kulikowski and Mr Antonicelli are two Polish nationals who were born in 1964 and 1974 respectively, and are currently serving prison sentences: Mr Kulikowski for killing his mother, and Mr Antonicelli for manslaughter.   Under a legal-aid scheme, both applicants had lawyers appointed by the domestic courts to represent them in the criminal proceedings. Mr Kulikowski and Mr Antonicelli were both convicted at first instance, and had their convictions upheld on appeal, following which their lawyers refused to prepare and lodge cassation appeals before the final judicial instance, the Supreme Court. The lawyers based their refusal on the fact that such appeals had, allegedly, no prospect of success. The Supreme court informed Mr Kulikowski and Mr Antonicelli of the situation and did not appoint other lawyers to assist them further.   2.     Procedure and composition of the Court   The two applications were lodged with the European Court of Human Rights on 18 May 2001 in the Kulikowski case and on 11 January 2005 in the Antonicelli case. The Court decided, on 27 September 2007 and 20 November 2007 respectively, to examine the cases for merits and admissibility at the same time.   Judgment was given in both cases by a Chamber of seven judges, composed as follows:   Nicolas Bratza (United Kingdom), President , Lech Garlicki (Poland), Giovanni Bonello (Malta), Ljiljana Mijović (Bosnia and Herzegovina), Päivi Hirvelä (Finland), Ledi Bianku (Albania), Nebojša Vučinić (Montenegro), judges   and Lawrence Early, Section Registrar ,   3.     Summary of the judgment [2]   Complaints   Relying on Article 6 § 1 in conjunction with Article 6 § 3, both Mr Kulikowski and Mr   Antonicelli complained that, as a result of their lawyers’ refusal to prepare cassation appeals in their cases, they had been denied effective access to the Supreme Court. In addition, Mr Kulikowski complained that he had been detained for too long pending trial.   Decision of the Court   Article 6 § 1 in conjunction with Article 6 § 3 in both cases   The Court first noted that 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. This requirement had been interpreted by the Polish Supreme Court as obliging lawyers to provide comprehensive legal advice to convicted individuals, which included giving an opinion on what prospects of success they had before the final judicial instance. The Supreme Court had also concluded that a legal-aid lawyer, assigned to individuals who were criminally prosecuted and convicted at first and second instance, could refuse to prepare a cassation appeal and that the domestic court was not bound to assign those individuals another lawyer. The Court agreed with this conclusion but also emphasised that the State nonetheless had the responsibility of ensuring a balance between effective access to justice for convicted individuals and the independence of the legal profession.   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 assisting them and had therefore set a longer time-limit for lodging a cassation appeal in those cases. Thus this period had been set to only start running on the date on which the defendants had been informed of their lawyer’s refusal to assist them further, and not, as in the cases of lawyers of one’s choice, from the moment the lawyers had been informed of the judgment of the second instance court.   The Court considered that this interpretation by the Supreme Court had allowed sufficient time to both Mr Kulikowski and Mr Antonicelli to find new lawyers to represent them. The fact that neither of them had been financially able to hire a lawyer of their own choice did not raise an issue under Article 6 of the Convention, as that Article does not oblige a State to ensure assistance by successive legal-aid lawyers for the purposes of pursuing legal remedies already found not to offer reasonable prospects of success.   However, according to the case law of the Supreme Court, the court of appeal should have instructed Mr Kulikowski and Mr Antonicelli, who were without legal representation at the time, on how much time they had to lodge a cassation appeal, something which it had failed to do. The Court concluded that, to that limited but crucial extent, the relevant procedures under Polish law at the time had been deficient and had deprived the applicants of effective access to the Supreme Court. There had therefore been a violation of Article 6 § 1 in conjunction with Article 6 § 3.   Article 5 § 3 in the Kulikowski case   In justifying Mr Kulikowski’s pre-trial detention throughout its duration, the authorities had relied on the possibility that he could be given a severe sentence. The Court recalled that the gravity of the charges alone could not justify long periods of detention pending trial. It further noted that the authorities had not considered any other possibility of securing Mr   Kulikowski’s appearance at trial. In addition, as he had been detained on charges of murder committed in a family setting, his case could not have presented particular difficulties for the investigation. Accordingly, the overall period of detention – two years, four months and six days – had been excessively long and in violation of Article 5 § 3.   Judges Bonello and Mijovic expressed joint concurring opinions in both cases, which are annexed to the judgments.     ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Press contacts Stefano Piedimonte (telephone : 00 33 (0)3 90 21 42 04) Tracey Turner-Tretz (telephone : 00 33 (0)3 88 41 35 30) Paramy Chanthalangsy (telephone : 00 33 (0)3 88 41 28 30) Kristina Pencheva-Malinowski (telephone : 00 33 (0)3 88 41 35 70) Céline Menu-Lange (telephone : 00 33 (0)3 90 21 58 77)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.