Right of Access to Court Imposes Positive Obligation on Courts to Inform Litigants of Rights and Entitlements

Kulikowski v Poland [2009] ECHR 18353/03 (19 May 2009) The European Court of Human Rights has held that the right to access courts imposes positive obligations on courts to inform individuals of their entitlements, that delays in obtaining expert evidence will not justify extended pre-trial detention, and that prohibition of contact with family members who are witnesses may be a permissible limitation on the right to family.


Adam was arrested in March 2000 and charged with murdering his mother.  Following a series of delays, he was brought to trial in August 2002, was found guilty, and was sentenced to 12 years imprisonment.

Mr Kulikowski argued that the period of remand was excessive and in breach of his right to be brought to trial in a 'reasonable time' (art 5 of the European Convention on Human Rights).  Domestic courts in Poland had justified his detention on the basis that the offence was serious, the sentence would be long and prosecutors needed time to gather evidence.

Following an unsuccessful first appeal, Mr Kulikowski sought to launch a final appeal to the Supreme Court.  His legal aid lawyer refused to file the appeal, on the basis that it lacked merit.  The Supreme Court did not appoint alternative legal counsel, and failed to inform Mr Kulikowski that he was entitled to an extension of time to file an appeal.  Mr Kulikowski argued that this breached his right to access the courts (ECHR art 6).

As Mr Kulikowski's wife and sons were witnesses in the case, he was prohibited from communicating with his family while on remand.  He argued that this breached his right to family life (ECHR art 8).


Right to be tried within a reasonable time

The Court held that the reasons given by domestic courts for Mr Kulikowski's detention were 'valid grounds for the applicant's initial detention'.  However, the seriousness of the offence and the need to gather evidence became less relevant as time passed and 'the gravity of the charges cannot by itself justify long periods of detention pending trial'.

It was relevant that this was not a complex case, and much of the delay related to obtaining expert evidence.  The Court held that difficulties related to obtaining expert opinion 'cannot justify the lengthy period of the applicant's detention'.

The extended remand was not justifiable and was in violation of art 5.  Domestic courts should have considered alternative means of guaranteeing Mr Kulikowski's appearance at trial.

Right to access the courts

The Court stated that the right of access to the courts is not absolute.  States must balance the need to ensure effective access to the legal system for those who have been convicted of crimes against other factors such as the independence of the legal profession.

In this case, Mr Kulikowski had been given legal aid assistance, but this ceased when his lawyer gave a negative merits advice and refused to endorse the appeal papers.  The assistance of this first legal aid lawyer satisfied the requirements of art 6, and the court did not have to guarantee alternative legal aid assistance.

In contrast, it was a breach of art 6 for the court to fail to inform Mr Kulikowski of his right to an extension of time to file an appeal.  According to Polish law, an applicant is entitled to an extension of time to file an appeal where a lawyer refuses to endorse a final appeal.  This is designed to give the applicant time to find another lawyer.  In this case, the Supreme Court's failure to inform Mr Kulikowski of his right to an extension was in breach of his rights under art 6.  It did not matter that Mr Kulikowski could not have afforded to pay a lawyer.  He should still have been given the opportunity to try to find one.

Right to family

The Court held that while 'it is an essential part of a detainee's right to respect for family life that the authorities enable him or, if need be, assist him in maintaining contact with his close family', States may restrict the right to respect of family life in order to achieve legitimate aims, and where the State can demonstrate that there is a 'pressing social need motivating the interference'.

In this case, the measures that interfered with Mr Kulikowski's rights under art 8 were justifiable limitations directed towards 'the prevention of disorder and crime'.  That is, the measures were in place because his family were witnesses in his criminal case and therefore were not in breach of art 8.

Relevance to the Victorian Charter

Right to be tried without unreasonable delay

This case provides further guidance on what might amount to 'unreasonable delay' under s 25(2)(c) of the Victorian Charter.  Delay is more likely to be unreasonable where the facts of a case are relatively straight forward or where delay is associated with obtaining expert evidence rather than other forms of evidence, such as witness statements.

Right to a fair hearing and right to legal aid

This case confirms that access to the courts and to legal aid is a key component of the right to a fair hearing, protected by ss 24 and 25 of the Victorian Charter, but this is not an absolute right.  The case highlights the importance of providing legal aid, especially in cases where an individual has been found guilty of a criminal offence.  However, it also illustrates that this right to legal aid-funded assistance does not extend to a right to dictate the lawyer's actions.

Here, Mr Kulikowski wanted legal aid representation for a final appeal.  However, it was important that his legal aid lawyer had the freedom to make a professional judgment and provide an unfavourable merits assessment which, according to Polish law, prevented the lawyer from launching a final appeal in accordance with Mr Kulikowski's wishes.  Thus, Mr Kulikowski's right to legal representation and desire to run a final appeal did not outweigh the need to ensure that his lawyer could exercise independence.  In the Australian context, this accords with the accepted position that a lawyer's obligations to the court outweighs their obligation to their client in the event of conflict, even when the client is being provided with legal assistance pursuant to a state's human rights obligations.

It is important to note that if Mr Kulikowski had not been provided with legal aid to at least obtain a merits assessment on his final appeal, it is likely that his right to access the courts would have been breached.

Right to protection of families (s 17)

This case confirms that the right to family imposes obligations on public authorities to consider various options before taking steps which negatively impact a person's right to family, protected by s 17 of the Victorian Charter.  The right to family is not an absolute right, and may be tempered by other factors (for example, the need to limit contact between an accused and family members who are witnesses).  However, the Court in this case emphasised that authorities should explore alternatives (such as supervised visits with children) before cutting off all family contact.

Helen Conrad, Human Rights Law Group, Mallesons Stephen Jaques