PROCEDURE

The case originated in an application (no. 8932/05) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Polish national, Ms Krystyna Siałkowska (“the applicant”), on 28 February 2005.

The applicant, who had been granted legal aid, was represented by Ms Bogdana Słupska-Uczkiewicz, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent, Mr Jakub Wołąsiewicz.

The applicant complained under Article 6 § 1 of the Convention that the proceedings had been unfair in that she had been denied effective access to a court. She referred to the fact that the lawyer appointed under applicable legal aid scheme had failed to undertake the necessary steps to represent her interest effectively in that he had refused to bring the cassation appeal to the Supreme Court against a judgment of the appellate court.

The application was allocated to the First Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

The Chamber decided that in the interests of the proper administration of justice, the proceedings in the present case should be conducted simultaneously with those in the case of Staroszczyk v. Poland (application no. 59519/00).

The applicants and the Government each filed further written observations (Rule 59 § 1). In addition, third-party comments were received from the Council of Bars and Law Societies of Europe and from the Helsinki Foundation for Human Rights, which had been given leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2).

A hearing took place in public in the Human Rights Building, Strasbourg, on 15 June 2006 (Rule 54 § 3). There appeared before the Court: (a) for the Government Mr Jakub Wołąsiewicz, Ambassador, Agent, Ms Małgorzata Kosicka, Legal Expert, Counsel, Ms Eliza Suchożebrska, Third Secratary, Adviser; (b) for the applicants Mr Wojciech Hermeliński, Ms Bogdana Słupska-Uczkiewicz, Counsel. The Court heard addresses by Mr Jakub Wołąsiewicz, Mr Wojciech Hermeliński, Ms Bogdana Słupska-Uczkiewicz and Ms Eliza Suchożebrska.

By a decision of 15 June 2006, following the hearing on admissibility and the merits, the Court declared the application partly admissible. It joined the examination of the Government's objections as regards incompatibility ratione personae and exhaustion of domestic remedies to the merits of the case.

The applicants and the Government each filed further written observations (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1950 and lives in Wrocław.

After the applicant's husband had died in September 2002, she instituted proceedings in which she claimed her widow pension.

By a decision of 3 October 2002, the social insurance authority dismissed her request.

On 4 March 2003 the Wroclaw Regional Court dismissed her appeal against this decision. On 2 September 2004 the Wroclaw Court of Appeal dismissed her further appeal.

The appellate court observed that the findings of fact made by the social insurance authority were correct. The applicant and her husband had de facto separated in 1994. He had been living since then with another woman. The applicant had not been receiving any maintenance payments from him. When he had fallen ill, she had not been taking care of him and she had been informed of his poor health only in March 2002. The court considered that the lower court had not erred when it assessed the testimony of one witness, who had submitted that the couple had been living together, as not being credible. The appellate court concluded that the legal requirements for granting a widow pension were not complied with.

The applicant requested that legal aid for the purposes of lodging a cassation appeal with the Supreme Court be granted to her and her request was allowed. The court requested the local Bar Association to assign a lawyer to the case and advocate Z.W. was so assigned on 17 September 2004.

The copy of the judgment of the appellate court was served on Z.W. on 9 November 2004.

By a written opinion of one page and a half dated 3 December 2004 Z.W. advised the applicant that, in his view, a cassation appeal against the judgment of the appellate court did not offer reasonable prospect of success. He referred to the written grounds of the judgment of the appellate court by which that court had explained why the applicant had not complied with the requirements of the applicable law, and considered that in the light of the evidence examined by the courts, there were no grounds on which to argue that the second-instance judgment was in breach of the law. Consequently, he did not draw up the cassation appeal.

The opinion contained the following paragraph: “I would like to stress that the judgment of the Wroclaw Court of Appeal of 2 September was served on me on 9 October (sic) 2004 and that the thirty-day time-limit for the lodging of a cassation appeal expires on 9 December 2004.”

On 6 December 2004 the applicant had a meeting with the lawyer at his office. He gave her his opinion and informed her that he saw no grounds on which to prepare a cassation appeal in her case. On the same occasion the applicant was served with the copy of the appellate court's judgment with its written grounds.