SEPARATE OPINION OF JUDGE BONELLO

I have so far voted to find a violation by Poland in cases in which the applicants lost their right to lodge a cassation appeal because their legal aid lawyer refused to do so.

The majority reasons that if the applicants had sufficient time, after the refusal of the legal aid lawyer, in which to engage a private lawyer, then there was no violation of the applicants ' fair trial rights, and they only have themselves to blame. I find this reasoning almost cynical. After the state has certified an applicant to be indigent and entitled to legal aid because he or she cannot afford a private lawyer , then it is the applicant ' s fault that he or she did not proceed to engage and pay a private lawyer. As Queen Marie Antoinette famously said of the poor “If they cannot afford bread, why don ' t they eat cake?”

I have elaborated on this in my dissenting opinions in Kulikowski v. Poland , 8958/04, 19 May 2009, and Smyk v. Poland , 18353/03, 28 July 2009.

The present case is one of a considerable number of similar Polish cases. The majority has not been sympathetic to my different reasoning. In the future, in cases which raise these issues, I will be reluctantly joining the majority, solely in the interest of avoiding fragmentation in decision making, and those of collegiality and judicial certainty.

DISSENTING OPINION OF JUDGE MIJOVIĆ

As emphasis ed i n my previous concurring opinion s in four recent cases, [1] and in the joint dissenting opinion in Smyk v. Poland , I see the problem of the refusal of lawyers appointed under legal - a id schemes to represent legally- aided persons on the ground that the claim has no reasonable prospects of success as the general one, related not only to criminal, but also to both civil and administrative proceedings [2] . To avoid repetition, I refer to the detailed reasoning underpinning those opinions, which reasoning serves to explain my decision to vote against the majority ' s finding in this case.

[1] Kulikowski v. Poland , n o 18353/03, 18 August 2009, Antonicelli v. Poland , n o 2815/05, 18 August 2009, Arciÿski v. Poland , 41373/04, 15 September 2009 and Zapadka v. Poland, n°2615/05, 15 December 2009 )

[2] There are more than 100 such cases pending before the European Court of Human Rights