CONCURRING OPINION OF JUDGE BONELLO

1 . The facts of this case disclose that the applicant, a defendant in a criminal trial, had requested h is legal-aid lawyer to lodge a c assation appeal against the judgement of the appellate court. The lawyer, barely two days before the lapse of the original period allowed by law for filing the appeal, informed the applicant that his case “lacked prospects of success and that she therefore refused to prepare and lodge one with the Supreme Court”. [1] I am dissatisfied with the reasoning the Court adopted to find a violation of Article 6. In my view, the applicant ’ s rights were violated not solely because the Katowice Court of Appeal failed in its obligation to inform him of an extended time limit to file a c assation appeal, as the Court found, but for far more radical reasons.

2 . To me the facts in themselves reveal a grievous violation of the applicant ’ s right of access to a court. Once the Polish legal system has put in place an ultimate recourse to cassation in criminal proceedings, to signify anything at all, this right has to be a meaningful (“practical and effe ctive”) one, and not one depende nt exclusively on the unfettered and unreviewable caprice of one single non-juridical person. [2] If the right to have recourse to the Court of Cassation exists in the Polish system, the guarantees of Article 6 had to be complied with. Moreover, when the state is under an obligation to provide legal aid, this must be done in a manner that secures the beneficiaries “the genuine and effective enjoyment of the rights guaranteed under Article 6”. [3]

3 . This Court has acknowledged the importance of not making the lodging or non-lodging of cassation appeals in civil proceedings depend exclusively on the whims of legal-aid lawyers. It has found a violation of Article 6 when the applicants ’ right of access to a court for a cassation review in civil litigation was thwarted by last-minute refusals of legal-aid lawyers to proceed with the appeal. [4] I see as inconsequential the expectation of high standards in civil proceedings and of lower ones in criminal trials. If anything, what applies to civil proceedings should apply more forcefully still to criminal ones.

4 . The Polish legal system establishes (a) the right of a cassation appeal in criminal trials; (b) that this right can only be exercised through the patronage of legal counsel; (c) the right of appellants to the Court of Cassation of restricted means to a legal ‑ aid lawyer. In this case, the Polish courts accepted that the applicant ’ s indigence justified his request to be assisted by a legal ‑ aid lawyer to prepare and plead his cassation appeal.

5 . The Polish courts have attached such a determining value to criminal cassation appeals that they have extended the time limit (30 days) for lodging such an appeal when the appellant is assisted by a legal-aid lawyer. It starts running not from the date the lawyer is served with the judg ment by the second-instance court, but only from the date on which the defendant was informed of the lawyer ’ s refusal. [5] The motivation behind this reasoning may have been admirable. Its factual consequences – giving the appellant sufficient time to employ a private lawyer against payment – disastrous, as I will suggest in paragraph 11.

6 . In my view the present judgement has emptied of any real substance the right of access to a court. Cumulatively, the three rights established by the Polish legal order (v. paragraph 4) have, in practice, morphed into the more overriding right of any legal-aid lawyer to have the first and the last word, and all the other words in between. From today onwards it is not the Court of Cassation that decides on the validity or otherwise of the grounds for cassation. That has been left exclusively – and irrevocably – to the more-or-less inspired fancies of any legal-aid lawyer. The ultimate bulwark of cassation review, willed by the Polish legal system, has been irretrievably weakened by delegating the destiny of impecunious and often petulant clients to the benevolence or otherwise of underpaid and sometimes resentful lawyers.

7 . The fundamental right of access to a court hangs solely on the goodwill of a lawyer almost coerced to work for a pittance, rather than on any objective evaluation of merit conducted by an independent and impartial authority. This right has been forsaken to the often mercile ss mercy of one legal-aid advise r, cheerfully unrestrained by the most minimal checks and balances. The legal-aid lawyer, solo, determines all of this, and some lawyers are known not to be immune from a well–crafted commercial sense of humour. It has not been pointed out by the respondent G overnment that any legal-aid lawyer has ever been sanctioned for a capricious refusal to lodge a cassation appeal in a criminal trial. Untouchable if they decide well, equally untouchable if they decide irresponsibly. The twentieth century has removed infallibility from the Holy Roman Pontiff and bestowed it on Polish legal-aid lawyers.

8 . This delegation of the very ultimate line of defence to the unchallenged discretion of legal-aid lawyers appears more than merely threatening. In refusing to prepare and to lodge a cassation appeal, lawyers are not bound to provide explanations. Their line of reasoning, if it can be charitably so called, may forever remain a well-kept secret. You can ’ t appeal because the legal-aid lawyer says you can ’ t. And why does he say you can ’ t? Because he says you can ’ t, stoopid . The domestic courts have absolutely no say in it. Nor does the European Court of Human Rights want any.

9 . In the present case, the lawyer was allowed to shield her inaction by relying on a formula as hackneyed as it is meaningless: “in her opinion, a cassation appeal lacked prospects of success”. No reference to stringent argument, to authoritative precedent, no judicial doctrine to comfort her conclusions – just her unsupported ‘ opinion ’ , and next one please. Was her discretion subject to any review? No. Did she give any reasons? No. Did the Cassation Court have any input in her decision? No. Did the applicant have any redress? No. Is she the one and ultimate arbiter? Yes. Only a small minority of the Court seems to have been upset by this concentrate of approved arbitrariness. I was upset, but then, I confess, I am sometimes guilty of the unpleasant misdemeanour of straying from the paths of legalism and intruding into reality.

10 . What rules is the dictatorship of the legal-aid lawyer. What governs is the tyranny of the unfettered discretion of a person not answerable to anyone. The domestic Court of Cassation exhausts its liability by the mere appointment of a legal-aid lawyer. How those legal- aid lawyers, assigned for the specific purpose of lodging a cassation appeal, discharge their responsibilities, is then nobody ’ s business. If they discharge it properly, fine. If not, tough luck, but fine all the same. Their whimsy reigns supreme, and this Court of human rights is happy it should be so. It is happy that legal-aid lawyers have absolute power, and no commensurate responsibility. A totality of power that would not disgrace anyone proud to be totalitarian.

11 . I find less than convincing the reasoning that, if informed in good time, the would-be appellants to the Court of Cassation can get themselves a private lawyer against payment, if the legal-aid lawyer deserts the cause. An applicant is granted legal aid only because the domestic court is satisfied he does not have the means to hire a paid lawyer. Then, after being officially certified indigent by the state, that state invites the appellant to hire and pay for a lawyer to safeguard his rights. A wonderfully consequent way for a state to follow through its own findings - in the view of those who believe that saying white and black in the same breath demonstrates the virtues of versatility.

12 . Once the Court of Cassation had acknowledged the applicant ’ s right to legal aid, arguing that paid services are an acceptable fall-back, is bringing consistency into disrepute and wrecking the very basic architecture of legal aid. Is there a whiff of plutocratic discrimination in all this? Wealthy defendants who pay their lawyer have access to the Court of Cassation for their ultimate defence. Those of limited means, only if their lawyer wakes up in a good mood.

13 . This appears to me to have been the right occasion in which, if an equitable solution contrasted with some previous case-law of the Court, the Chamber should have relinquished jurisdiction in favour of the Grand Chamber. [6]

14 . Of course, we can all agree th at the right of access to a court - the core issue in this complaint - is not absolute, and may be subject to limitations. But the Court “must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired”. Oh holy, noble, and meaningless mantras. I do not see that the essence of the right of access of the applicant to the Court of Cassation was “impaired”. It was totally and completely wiped out. The legal community would be eternally thankful to anyone who pointed out what scraps of the right of access to the Court of Cassation were left to the applicant. I have looked for them hard and with plenty of perseverance at the beginning, and I am still looking for them now.