CONCURRING OPINION OF JUDGE VAJI Ć

1. I regret that I am unable to share the reasoning of the majority in the present case. My finding of a violation is based on reasoning different from that set out in § 136 and 137 of the judgm ent and is explained in point 3 infra .

2. In the majority ' s view the main reason for finding a violation in the present case was the fact that the lawyer ' s refusal to prepare a cassation appeal was not provided in writing and had therefore left the applicants in a state of uncertainty as to the legal grounds for such a refusal.

It should be noted , firstly , that no obligation to prepare a written legal opinion on the prospects of a cassation appeal arises under domestic law ; this is true with regard to all lawyers, whether or not they are working under the legal aid scheme. Although national authorities are free to introduce such a requirement into their domestic legal system, it is not for the Court to impose such an obligation on them. The Court has often stated that it is not for it to indicate to the States Parties legislative or organisational measures to be taken in the organisation of their legal system in general. The same applies to the organisation of their legal aid system, more particular ly in view of preserving the independence of the legal profession , which is primordial in a democratic society. T he Court thus leaves to the States the choice of the means of ensuring that a right guaranteed under the Convention is secured in their judicial systems, the Court ' s task being only to ascertain whether the method they have chosen is consistent with the requirements of the Convention ( s ee Imbrioscia v. Switzerland, judgment of 24 November 1993, § 38).

In such a context it seems difficult to understand how the finding of a violation of the Convention in the present case can be based on the lack of written grounds for the refusal. In addition, a lawyer ' s refusal to provide written grounds cannot, in our opinion, be put on the same footing as that of a court which refuses to grant legal aid with out giving legal grounds to justify such a decision (see Tabor v. Poland, judgment of 27 June 2006, §§ 45 ‑ 46, in which the Court found a violation of Article 6 of the Convention).

O ther States Parties to the Convention have procedures similar to the cassation appeal procedure in Polish law , in which only lawyers or speciali s ed advocates are entitled to plead before certain courts. It would not appear, however, that there is a requirement in any of th o se countries that those advocates or lawyers must provide their clients with a written legal opinion or explanation concerning their views on the cases in question . The same is true of contacts between lawyers and clients in general , which are habitually based predominantly on oral communication . A different conclusion cannot be deduced from the submissions of the Council of Bars and Law Societies of Europe , which intervened in the present proceedings as a third party.

3. I can, however, agree , albeit with some hesitation, that there has been a violation of the applicants ' rights in the present case if we examine the effectiveness of the legal aid proceedings as a whole . The applicants would appear to have experienced real difficulties in finding a lawyer who would a gree to represent them ( see paragraphs 21-22; see also Rutkowski v. Poland , (dec), no. 45995/99, 19 October 2000) and who would then be diligent in that task ( see paragraphs 24-34; see also Sia ł kowska v. Poland, judgment of 22 March 2007, § 16-19); the procedure involved is also time - consuming (see, mutatis mutandis , Tabor v. Poland, cited above, §§ 44-46) and somewhat complicated , so that when one lawyer refuses to provide legal representation it does not seem possible to have another appointed speedily. In the event of refusal to prepare a cassation appeal , this would make it im possible for the new lawyer to submit such an appeal within the prescribed time-limit ( see the submissions by the Polish Helsinki Foundation for Human Rights, paragraph 117). Moreover, the applicants in the present case were informed by the Bar that , whe re an ex officio lawyer found no grounds on which to lodge a cassation appeal, the Bar Association would not appoint another lawyer for that purpose ( see paragraph 37).

Of course, it is not the role of the State to oblige a lawyer, whether appointed under the legal aid scheme or not , to institute any legal proceedings or lodge any legal remedy contrary to his or her opinion regarding an action or remedy ' s prospects of success. Such powers in the hands of the State would be detrimental to the essential role of an independent legal profession in a democratic society , which is founded on trust between lawyers and their clients. It is, however, the responsibility of the State to ensure the requisite balance between, on the one hand, the effective enjoyment of access to justice and , on the other, the independence of the legal profession. The Court has repeatedly held that , for the effective exercise of the right to a fair hearing guaranteed by Article 6 of the Convention , it is also important that legal aid lawyers discharge their obligation to give appropriate legal advice with due diligence (see Artico v. Italy, judgment of 13 May 1980 , and Daud v. Portugal , judgment of 21 April 1998), even if the lawyer ' s conclusion is that a case, or a further remedy, do not offer prospects of success.

The aim of legal aid, where it is available for disputes in civil proceedings, is to ensure, among other means, the right of fair and effective access to justice for applicants who do not dispose of sufficient personal means to pay for their own legal representation. That is why, in view of all the difficulties encountered by the applicants i n the present case and bearing in mind the cumbersome procedure required in order to obtain represent ation in proceedings before a court in which the national legal system obliged them to be legally represented, the State should not , in my opinion , remain passive ( see Rutkowski v. Poland , (dec), no. 45995/99, 19 October 2000 , and, mutatis mutandis, Tabor v. Poland, cited above, para graph 43 ) .

Rather, it is a State ' s obligation to see to it that an effective legal aid mechanism allow s adequate access to justice. The circumstances of this case, as well as those of the Sia ł kowska v Poland case (cited above), in which a judgment is adopted by the Chamber on the same day, show the need for the authorities to review their legal aid system as a whole and to take action to improve it so that it will operate efficiently ( see Tabor v. Poland, cited above, § 43). Which of the various possible legal aid systems they m ay wish to select, or what the real reasons may be for the malfunctioning of the present system – these are questions to be answered and resolved by the national authorities, preferably after a thorough debate which would include all the actors involved. The result, however, should be to secure an adequate institutional and procedural framework to ensure that citizens who are entitled to obtain legal aid will be provided with effective representation in judicial proceedings so that their interests are properly represented.

4. In view of the foregoing and of all the circumstances of the present case , I consider that there has been a violation of the applicants ' right to a fair hearing guaranteed under Article 6 § 1 of the Convention.