Lexploria

Resolution CM/ ResDH ( 2013)190 Thirteen cases against Poland

Execution of judgments of the European Court of Human Rights

Application

Case

Judgment of

Final on

18353/03

KULIKOWSKI

19/05/2009

21/12/2010

19/08/2009

21/03/2011

2815/05

ANTONICELLI

19/05/2009

19/08/2009

41373/04

ARCIŃSKI

15/09/2009

15/12/2009

9566/10

DOMBROWSKI

18/10/2011

18/01/2012

35916/08

KORGUL

17/04/2012

17/07/2012

18063/07

MIROSŁAW WOJCIECHOWSKI

20/12/2011

7272/09

NOWASZEWSKI

27/03/2012

17656/06

SZPARAG

05/10/2010

40459/05

URBANOWICZ

05/10/2010

648/02

JAN ZAWADZKI

06/07/2010

06/10/2010

16286/07

WLODARCZYK

11/10/2011

30358/04

WERSEL

13/09/2011

13/12/2011

22183/06

SZUBERT

05/07/2012

(Adopted by the Committee of Ministers on 26 September 2013 at the 1179th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgments transmitted by the Court to the Committee in the above cases and to the violations established;

Recalling the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with its above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgments, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)571 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination thereof.

Action Report [1]

Information about the measures to comply with the judgments in cases

Kulikowski against Poland, Antonicelli against Poland, Jan Zawadzki against Poland, Wersel against Poland, Arciński against Poland, Urbanowicz against Poland, Szparag against Poland, Włodarczyk against Poland, Mirosław Wojciechowski against Poland, Korgul against Poland, Nowaszewski against Poland, Dombrowski against Poland, Szubert against Poland

Case description

Dombrowski , application No. 9566/10, judgment of 18/10/2011, final on 18/01/2012

Nowaszewski , application No. 7272/09, judgment of 27/03/2012, final on 27/06/2012

Korgul , application No. 35916/08, judgment of 17/04/2012, final on 17/07/2012

Mirosław Wojciechowski , application No. 18063/07, judgment of 20/12/2011, final on 20/03/2012

WÅ‚odarczyk , application No. 16286/07, judgment of 11/10/2011, final on 11/01/2012

Szparag , application No. 17656/06, judgment of 05/10/2010, final on 05/01/2011

Urbanowicz , application No. 40459/05, judgment of 05/10/2010, final on 05/01/2011

Antonicelli , application No. 2815/05, judgment of 19/05/2009, final on 19/08/2009

Arciński , application No. 41373/04, judgment of 15/09/2009, final on 15/12/2009

Wersel , application No. 30358/04, judgment of 13/09/2011, final on 13/12/2011

Kulikowski , application No. 18353/03, judgment of 19/05/2009, final on 19/08/2009

Jan Zawadzki , application No. 648/02, judgment of 06/07/2010, final on 06/10/2010

Szubert , application No. 22183/06, judgment of 05/07/2012, final on 05/10/2012

The above cases concern violations of the applicants ’ right of access to the Supreme Court due to the domestic courts ’ failure to instruct the applicants on their further procedural rights in case of the refusal of legal-aid lawyers to assist them in filing and lodging cassation appeals on account of lack of prospects of success (violations of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c)).

The European Court noted in the abovementioned cases that when notified of a legal-aid lawyer ’ s refusal to prepare a cassation appeal, it was entirely appropriate and consistent with fairness requirements, that an appeal court indicated to an appellant what further procedural options were available to him or her, namely that the time-limit for lodging a cassation appeal started to run only on the date when he or she was served with the lawyer ’ s refusal. The failure of the courts to inform the applicants, who were not represented by lawyers, of their procedural rights meant that they had no way of knowing that they had a new time-frame within which to find a lawyer who might be persuaded to file cassation appeal on their behalf.

In the cases: Korgul and Szubert the applicants were given erroneous information about the time-limit for lodging a cassation appeal in case of the refusal of legal-aid lawyers to assist them in filing and lodging cassation appeals on account of lack of prospects of success.

In the Wersel case not only did the Regional Court refuse to grant the applicant further legal-aid lawyer ’ s assistance but it also communicated its refusal two days before the expiry of the time-limit for the submission of his cassation appeal. In view of the Court, the shortness of the time left to the applicant for appointing a lawyer of his choice and for preparing the intended cassation appeal did not give him a realistic opportunity of having his case brought to and defended in the cassation court in a “concreter and effective way”.

In the Kulikowski case the Court also found violations of Article 5 § 3 of the Convention on account of unreasonable length of detention on remand.

The European Court awarded the applicants with just satisfaction in respect of non-material damage.

Dombrowski , application No. 9566/10, judgment of 18/10/2011, final on 18/01/2012

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2,000 EUR

-

2 000 EUR

Paid on 20/02/2012

Nowaszewski , application No. 7272/09, judgment of 27/03/2012, final on 27/06/2012

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,000 EUR

100 EUR

1 100 EUR

Paid on 21/05/2012

Korgul , application No. 35916/08, judgment of 17/04/2012, final on 17/07/2012

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2,000 EUR

-

2 000 EUR

Paid on 02/10/2012

Mirosław Wojciechowski , application No. 18063/07, judgment of 20/12/2011, final on 20/03/2012

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1 000 EUR

Paid on 02/03/2012

WÅ‚odarczyk , application No. 16286/07, judgment of 11/10/2011, final on 11/01/2012

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1 000 EUR

Paid on 21/12/2011

Szparag , application No. 17656/06, judgment of 05/10/2010, final on 05/01/2011

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1 000 EUR

Paid on 15/12/2010

Urbanowicz , application No. 40459/05, judgment of 05/10/2010, final on 05/01/2011

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1 000 EUR

Paid on 15/12/2010

Arciński , application No. 41373/04, judgment of 15/09/2009, final on 15/12/2009

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1 000 EUR

Paid on 25/02/2010

Wersel , application No. 30358/04, judgment of 13/09/2011, final on 13/12/2011

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2,000 EUR

-

2 000 EUR

Paid on 16/02/2012

Kulikowski , application No. 18353/03, judgment of 19/05/2009, final on 19/08/2009

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

3,000 EUR

1,150 EUR

4 150 EUR

Paid on 09/06/2011

Jan Zawadzki , application No. 648/02, judgment of 06/07/2010, final on 06/10/2010

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

1,000 EUR

-

1 000 EUR

Paid on 29/12/2010

Szubert , application No. 22183/06, judgment of 05/07/2012, final on 05/10/2012

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

2,000 EUR

-

2 000 EUR

Paid on 20/09/2012

According to Article 126 § 1 of the Code of Criminal Procedure, a request for a retrospective leave to appeal out of time may be lodged, if a failure to submit an appeal was due to reasons independent from the party (like a failure of the relevant authorities to instruct a party on procedural rights or erroneous information). The request should be lodged within 7 days from the date the circumstances preventing a party from submitting an appeal ceased to exist, together with the appeal. Decision on refusal to grant a retrospective leave to appeal is subject to appeal.

Mr Kulikowski was sentenced to twelve years ’ imprisonment by the Gliwice Regional Court on 14 August 2002. On 19 December 2002 the Katowice Court of Appeal upheld the judgment.

In these circumstances, no other individual measure appears necessary.

The root of the violation of Article 6 § 1 of the Convention in conjunction with Article 6 § 3 (c) in the abovementioned judgments was largely due to the incorrect practice of domestic courts who, when notifying appellants of a legal-aid lawyer ’ s refusal to prepare a cassation appeal, did not indicate what further procedural options were available, and in particular – that the time-limit for lodging a cassation appeal started to run on the date of being served with the refusal.

It should be noted that, after the facts of these cases, the Supreme Court gave a series of decisions ruling that in case of a legal-aid lawyer ’ s refusal to assist an appellant in filing and lodging cassation appeals because of a lack of prospects of success, the appellate court is obliged to inform the appellant about the position of his lawyer and the right to lodge a cassation appeal prepared by a lawyer of his own choice and to notify the appellant that the time-limit for lodging a cassation appeal started to run on the date of being served with the refusal (see, inter alia : decision of 26/09/2011 in case No. II KZ 42/11, decision of 22/12/2009 in case No. III KZ 87/09, decision of 18/11/2009 in case No. II KZ 54/09, decision of 12/12/2008 in case No. IV KZ 82/08, decision of 06/05/2008 in case No. II KZ 16/08).

Moreover, in order to avoid similar violations in the future, the translation of main points of the Court ’ s judgment in Kulikowski case and translation of the judgment in Wersel case were published on the website of the Ministry of Justice. The judgments of the European Court were also included into the curricula of trainings for judges and prosecutors.

General measures are examined in the context of the Trzaska group of cases (application No. 25792/94).

In these circumstances, no other general measure appears necessary .

III. Conclusions of the responding state

The Government considers that further individual measures are not necessary in the present case and that the general measures adopted will be sufficient to conclude that Poland has complied with its obligations under Article 46, paragraph 1 of the Convention in respect to the breach of Article 6 § 1 of the Convention .

[1] Information submitted by the Polish authorities on May 16 th 2013.

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CASE OF KULIKOWSKI AND 12 OTHER CASES AGAINST POLAND

CASE OF KULIKOWSKI AND 12 OTHER CASES AGAINST POLAND