DISSENTING OPINION OF JUDGE LOUCAIDES JOINED BY JUDGES ROZAKIS AND STEINER

I do not agree with the majority that there has been a breach of Article 6 § 1 of the Convention in this case.

The majority stated that a refusal of a legal aid lawyer to undertake the lodging of a cassation appeal “should meet certain quality requirements. In particular, the refusal must not be formulated in such a way as to leave the client in a state of uncertainty as to its legal grounds. However, the majority proceeds to observe “that under the applicable domestic regulations the legal aid lawyer was not obliged to prepare a written legal opinion on the prospects of the appeal. It was also stated that the domestic law “did not set any standards as to the legal advice he had to give to justify his refusal to lodge a cassation appeal”.

Nevertheless, the majority found a violation of Article 6 on the ground that the lawyer in this case did not formulate in writing his refusal to prepare the cassation appeal and the reasons for such a refusal. According to the majority “the lack of the written form of refusal left the applicants without necessary information as to their legal situation and, in particular, the chances of their cassation appeal to be accepted by the Supreme Court.”

My disagreement with the majority is based on the following:

a) I do not think it is fair or necessary to require from a legal aid lawyer to formulate his opinion in writing so long as such a requirement does not exist under the domestic law in respect of the other lawyers to whom any individual might have had recourse on payment for lodging a cassation appeal. A person is entitled to have a legal aid lawyer under the same conditions as in the case of a non legal aid lawyer.

b) The applicant did not allege that he did not comprehend the legal opinion given by the legal aid lawyer for his refusal to draw up a cassation appeal.

c) There is no concrete evidence to show that if the refusal to lodge such an appeal was given in writing the applicant would have been in a better position or that the opinion would have been more useful. In this respect one should bear in mind that in fact the legal aid lawyer has later on -sometime in February 2000 - expressed his opinion not to lodge an appeal also in writing in answer to a complaint of the applicants to the Secretary of the Warsaw Bar Association and it does not emerge from the facts that the written opinion was more enlightening than the oral one.

d) The gist of the refusal to lodge a cassation appeal by the legal aid lawyer was that in his opinion there were no grounds for filing a cassation appeal in the applicant ' s case. I find it difficult to accept that an elaboration of such an approach would have given the applicants more necessary or useful information as to their legal situation.

e) There is no evidence that the lawyer has acted in any negligent or arbitrary way

f) The applicant had sufficient time before the expiration of the time ‑ limit for lodging the cassation appeal to seek a second legal opinion regarding his case but he failed to take any steps in that direction.