CONCURRING OPINION OF JUDGE MIJOVI Ć

While I fully support Judge Bonello ’ s arguments expressed in his concurring opinion, I feel compelled to emphasis e a few further points since I see the problem of the refusal of lawyers appointed under the legal ‑ aid scheme to represent legally- aided persons on the ground that a claim has no reasonable prospects of success as the general one. Additionally, I do not see this problem as related exclusively to criminal proceedings . It also concerns both civil [7] and administrative ones, although the facts of this case do not allow me to extend my opinion to such proceedings.

Proceedings concerning the lodging of a cassation appeal against the judgment of the appellate court in this case started with the Katow ice Court of Appeal ’ s appointment of a legal-aid lawyer for the purposes of the cassation proceedings. The letter containing both the legal-aid lawyer ’ s decision not to lo dge a cassation appeal and the c ourt ’ s decisi on not to appoint another legal- aid lawyer was served on the applicant only two days before the time-limit for lodging a cassation appeal was to expire. The main reason for the Chamber to find a violation of Article 6, in accordance with the Court ’ s case-law [8] , was “ that the relevant procedural framework available under Polish law as from February 2002 was not applied in the applicant ’ s case in such a manner as to afford him a realistic opportunity of taking further steps to have his cassation appeal lodged with and argued before the Supreme Court and to have thereby his access to a court secured in an effective manner ”. However, in my view, the refusal by a lawyer appointed under a legal-aid scheme to prepare grounds of appeal for consideration by the Supreme Court, as well as the requirements for lodging a cassation appeal, are issues that represent a breach of the applicant ’ s right of access to the court and reflect the existence of a serious problem in the legal-aid scheme set up by the Polish legislation in general.

While there are no doubts that it is legitimate for the S tate to determine that legal aid should be available for some types of proceedings and not for others, the limitations applied must not restrict the access left to the individual in such a way that the very es sence of the rights guaranteed by Article 6 is impaired. The applicant in this case complained that as a result of the legal-aid lawyer ’ s refusal to lodge a cassation appeal he had been denied effective access to the Supreme Court. The provisions of Article 6 stipulate that everyone charged with a criminal offence has, among other rights, a right “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.”

As far as I understand the practice of the Supreme Court, once the legal-aid lawyer refuses to lodge a cassation appeal the court could assign a new legal-aid lawyer only if it had been shown that the first lawyer had been negligent in his task of assessing whether a cassation appeal had any prospect of success. The negligence of the first legal-aid lawyer, additionally, had to “be shown” in separate civil proceedings against the lawyer for compensation, the applicant being required to prove that the court should, in the circumstances, have assigned a new legal-aid lawyer. To my mind, this part of the legal-aid scheme is simply too far removed from what I would consider sufficient to ensure effective access to the court.

While it is true that the right to a court, of which the right of acc ess constitutes one aspect [9] is not absolute but may be subje ct to limitations, and that the S tates in these matters surely enjoy a certain margin of appreciation [10] , these limitations are not compatible with Article 6 provisions if there is no legitimate aim at issue and if there is a lack of proportionality between the means employed an d the aim sought to be achieved [11] . The Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with. [12]

These principles of the Court ’ s case-law are correctly stated in the Chamber ’ s judgment. Nevertheless, in my opinion, they should have been further developed and taken a step further in order to criticise the conceptual confusion surrounding the domestic provisions governing the legal ‑ aid scheme, namely the fact that u nder the applicable domestic regulations the legal-aid lawyer is not obliged to prepare a written legal opinion on the prospects of success of the appeal and, moreover, the law does not set any standards as to the quality of the legal advice that has to be given to justify the lawyer ’ s refusal to lodge the appeal.

Furthermore, I strongly believe that the decision whether a case offers reasonable prospects of success should not be taken by a legal-aid lawyer. I would stress in this connection that the right of access to the Supreme Court should be based on the idea that each and every individual should be granted the right to state his case before a last-instance jurisdiction if she or he considers that the law has been violated or misinterpreted by the lower courts. Giving a right to a legal-aid lawyer to decide on the fate of the case even before it is brought before the Supreme Court and without any written reasons for that decision, is, for me, arbitrary, even, as Judge Bonello pointed out, capricious. Of course, a legal ‑ aid lawyer ’ s opinion should matter. However, I see legal-aid more in terms of free legal representation than legal advice or, even worse, only the legal (and very personal) attitude of an individual having no judicial status. Additionally, as a Judge, I find the formula “in a legal-aid lawyer ’ s opinion, a cassation appeal lacked prospects of success” not only arbitrary, but offensive and prejudicial, especially bearing in mind the fact that the Court of Appeal in this case relied on this “opinion” by refusing the applicant ’ s requests for the appointment of a new legal-aid lawyer and thereby finally preventing the applicant from having his case decided by the highest judicial authority. That is what I see as the essence of this problem and that is why I think that the European Court ’ s case-law should have dealt with this situation more carefully instead of finding a violation of Article 6 for the sole reason that the time-limits set by the Polish legislation had not been respected.

[1] At § 16.

[2] At § 54: “A lawyer, even if officially appointed, cannot be considered to be an organ of the state”.

[3] R.D. v. Poland , 18 December, 2001.

[4] Sialkowska v. Poland ; Staroszczyk v. Poland , 22 March 2007.

[5] At § 63.

[6] Article 30.

[7] There are more than 120 such cases pending before the European Court of Human Rights

[8] Siałkowska v. Poland , no. 8932/05, 22 March 2007

[9] Golder v. the United Kingdom , judgment of 21 February 197 5

[10] Vas il akis v. Greece , judgment of 17 January 2008

[11] Ashingdane v. the United Kingdom, judgment of 28 May 1985; Edificaciones March Gallego S.A. v. Spain , judgment of 19 February 1998

[12] Staroszczyk v. Poland , judgment of 22 March 2007