CONCURRING OPINION OF JUDGE SILVIS

1. The heart of the matter in this case is the combination of compulsory representation by a licensed lawyer before the Court of Cassation and the practical impossibility for the wheelchair - bound applicant of modest means to obtain legal aid for such representation. Having compulsory representation before the Court of Cassation on the one hand , and not having an adequate institutional framework , on the other , to ensure effective legal representation for entitled persons and a sufficient level of protection of their interests, that is what amounts to a violation of the right of access to a court.

2. However, finding a violation in this case does not imply that there would be anything wrong , as such , with limiting access to the Court of Cassation through compulsory representation by licensed lawyers. Parties to the Convention are perfectly free to introduce such restrictions as well as to abolish the m , as Armenia did. In general Article 6 of the Convention does not guarantee an unconditional right to legal aid. In Anghel v. Italy ( no. 5968/09, § 51 , 25 June 2013 ) the Court stated:

“There is no obligation under the Convention to make legal aid available for all disputes (contestations) in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (see Del Sol v. France , no. 46 800/99, § 21, ECHR 2002 ‑ II). However, despite the absence of a similar clause fo r civil litigation, Article 6 § 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable to effective access to court, either because legal representation is rendered compulsory, as is done by the domestic law of certain Contracting States for various types of litigation, or by reason of the complexity of the procedure or of the case (see Airey v. Ireland , 9 October 197 9, § 26, Series A no. 32).”

3. Whether a State Party to the Convention is obliged to grant legal aid to guarantee access to a court may depend on a number of aspects. In the classic case of Airey v. Ireland ( 9 October 1979, Series A no. 32 ) the applicant was “ imprisoned ” in a marriage for as long as legal aid w as not granted and access to a court for the purpose of petitioning for a decree of judicial separation was de facto illusory. In contrast with that matter of great personal weight , the Court accepted in A. v. United Kingdom (no. 35373/97, § 99 , ECHR 2002 ‑ X ) that not granting legal aid in a defamation case did not amount to an illegitimate restriction of access to a court. Our Court is not in a position to decide in a case - by - case manner whether legal aid should be granted, but a domestic system should guarantee that serious requests are taken into consideration. In the Court ’ s case-law it has been accepted that a lack of a prospect of success might be a reason for refusing legal aid. An interesting example is to be found in Ritchie and Others v. the United Kingdom (( dec ), 6788/12, § 45 , 13 November 2014) , where the Scottish Legal Aid Commission had not f ou nd it established that “a privately funded person of modest means would reasonably be advised to pursue this matter further”. States Parties to the Convention are certainly allowed to make legal aid in civil matters dependent not only on conditions like a reasonable prospect of success, but also on indications like the level of urgency and significance of the interests at stake , as well as the requirement of a proportional personal contribution with due regard to the individual ’ s financial situation. The unsurmountable problem of the applicant in th e present case was the lack of a ny serious possibility in the domestic system of obtain ing even due consideration of her right to legal aid in order to obtain access to the Court of Cassation .

C ONCURRING OPINION OF JUDGE MOTOC

1. This judgment is important because it concerns a sensitive aspect of Article 6 of the Convention, namely the effective right to a fair trial for vulnerable individuals and least well-off litigants.

2. The issue of legal aid in civil proceedings was unambiguously decided by the Court in the case of Airey v. Ireland ( 9 October 1979, Series A no. 32 ), where the Court dismissed the Government ’ s argument that the right of access to a tribunal did not place any positive obligation on the States, particularly obligations with implications of an economic nature .

3. This question becomes highly serious where the national system actually requires representation by a lawyer. This applies to Ms Shamoyan ’ s case and to the system in Armenia at the material time, but also to other legal systems, such as that in Belgium, as addressed in the case of Aerts v. Belgium ( 30 July 1998, Reports of Judgments and Decisions 1998-V, pp. 1964-1965 ) , and Poland, as in the cases of Staroszczyk v. Poland (no. 59519/00, 22 March 2007 ) and Tabor v. Poland ( no. 12825/02, 27 June 2006 ) .

4. The most sensitive question subsequently adjudicated by the Court was the selection of cases deemed sufficiently meritorious for consideration. Although the circumstances in the case of Steel and Morris v. the United Kingdom ( no. 68416/01, ECHR 2005 ‑ II ) were favourable to the applicants in view of the amounts at stake in the case and the complicated nature of the relevant legislation, in other cases the circumstances have operated to the detriment of the victims.

5. The question of the established procedure for deciding who should have access to this system has already been analysed in Aerts v. Belgium . In that case the Court found a violation of Article 6 § 1 ( § 60); similar bodies had determined the question whether the applicant ’ s request had been “well-founded” “at the present time”, that is to say whether it was founded on the Court ’ s judgment in that case. The Belgian legislature amended the Law on legal assistance and adopted a different wording to the effect that only “manifestly ill-founded requests will be rejected”.

6. The French system for analysing applications for which legal aid has been requested was examined in the case of Del Sol v. France ( no. 46800/99, ECHR 2002 ‑ II ) . In that judgment the Court noted, firstly, that the reason relied on by the Legal Aid Office and the President of the Court of Cassation for refusing the applicant ’ s application for legal aid – namely the lack of an arguable ground of appeal on points of law – was expressly contemplated in Law No. 91-647 of 10 July 1991 and was undoubtedly intended to meet the legitimate concern that public money should only be made available to applicants for legal aid whose appeals to the Court of Cassation have a reasonable prospect of success. As the European Commission of Human Rights pointed out, it is self-evident that a legal aid system can only operate effectively by establishing machinery to select which cases should be legally aided (see, for example, the Commission ’ s decisions of 10 July 1980 in the case of X v. the United Kingdom , no. 8158/78, Decisions and Reports 21, p. 95, and of 10 January 1991 in the case of Garcia v. France , no. 14119/88, unreported).

7. In the case of Del Sol , t he Court consider ed that “the scheme set up by the French legislature offers individuals substantial guarantees to protect them from arbitrariness. The Legal Aid Office of the Court of Cassation is presided over by a judge of that court and also includes its senior registrar, two members chosen by the Court of Cassation, two civil servants, two members of the Conseil d ’ Etat and Court of Cassation Bar and a member appointed by the general public (section 16 of the Law of 10 July 1991 cited above). Moreover, an appeal lies to the President of the Court of Cassation against refusals of legal aid (section 23 of the Law). In addition, the applicant was able to put forward her case both at first instance and on appeal ”.

8. In their separate opinion in the case of Del Sol , J udges Tulkens and Lou caï des observed that although the judgment accepted that a legal aid system c ould only operate effectively if machinery wa s in place to enable a selection to be made of those cases qualifying for it (§ 23 of the judgment), it was not immediately apparent that such a scheme may result in inequality between litigants. However, that wa s clearly the position in the case at hand , since only the least well-off litigants, those who ha d to apply for legal aid, we re subjected to a prior scrutiny of the merits of their ground of appeal to the Court of Cassation. Unless there wa s an “objective and reasonable justification” for it, such difference in treatment could amount to discrimination. They continued that n o system may impair the essence of the right of a particular class of litigant to a court, as guaranteed by Article 6 of the Convention, and the existence of safeguards, even substantive ones, against abuse of the system intended to afford protection from arbitrariness, w ould not suffice to compensate for any such impairment.

9. In the case of Shamoyan the Court had an opportunity to develop the issue of access by less well-off persons to justice. In fact the Government mention that the applicant, a person with disabilities, at no point requested a lawyer to represent her before the Court of Cassation. Ms Shamoyan replied was that it was useless to her to request a lawyer since she has no financial means to afford a lawyer.

10. The Court did not take into account, as it has in previous cases , whether the applicant has made any effort to find a lawyer since she is disabled and lacks financial means. Therefore it is a development of the case law that the Court has noted that the absence of the possibility to be granted legal aid in order to comply made a disproportio nate restriction on the right of the applicant ’ s effective right to acces s to that c ourt. In this re s pect the case departs f rom Del Sol because the Chamber is not analysing the right to apply for legal aid in a credible case but the simply the right to legal aid. E quality among the applicants has bec o me effective in the sense of Article 6 § 1.