JOINT PARTLY DISSENTING OPINION OF JUDGES WOJTYCZEK AND EICKE

1. In the instant case, we agree with the majority that the Respondent State failed to observe its procedural obligations under Article 2 of the Convention; however, we do not share the view that the application was admissible.

2. It seems to us that there is a contradiction in the reasoning in respect of the exhaustion of remedies. On one hand, the majority states in paragraph 55 in fine : “It therefore appears that an appeal on points of law to the Court of Cassation was not an accessible remedy at the material time.” On the other hand, in paragraph 56 the majority states as follows: “the Court of Cassation appears to have shown excessive formalism by not applying this rule [allowing the courts to suspend proceedings if they found that an applicable provision was incompatible with the Constitution] and deciding instead to refuse the examination of the applicant ’ s appeal on points of law”. The second assumption necessarily implies that the remedy was not ineffective and, if properly applied, could have been effective.

3. If the first assumption is correct and the cassation appeal was not an accessible remedy at the time when the application was lodged (as the majority considers this Court to have concluded in Shamoyan v. Armenia , no. 18499/08, § 33, 7 July 2015), then the applicant should not have pursued an ineffective remedy (see, for instance, the inadmissibility decisions in the cases of Glinski v. Poland , no. 21062/05, and Fernie v. the United Kingdom , no. 14881/04) . In consequence, the deadline for lodging the application with the European Court of Human Rights falls to be counted from the day on which the decision of Criminal Court of Appeal was served on the applicant.

On 4 September 2008 the Criminal Court of Appeal dismissed the applicant ’ s appeal and on 30 September 2008 the applicant lodged a cassation appeal with the Court of Cassation. Assuming that the judgment of the Criminal Court of Appeal was served on the applicant on 30 September at the latest, the applicant should have lodged the application by 30 March 2009 at the latest. As the application was not, however, lodged until 22 April 2009, it should have been declared inadmissible as out of time.

4. By contrast, if the second assumption is correct and the Court of Cassation could have examined the cassation appeal in spite of the fact that it was not introduced by a licensed lawyer, it appears to us that, on the available evidence, the applicant has failed to exhaust that remedy effectively. After all, despite the existence of the above rule, confirmed by the Constitutional Court ’ s judgment of 8 October 2008 declaring Article 404 § 1 (1) of the Code of Criminal Procedure and section 29.1 of the Advocacy Act incompatible with Articles 18 and 19 of the Constitution in that they disproportionately restricted access to the Court of Cassation (see paragraph 49 of the present judgment), it appears that the applicant not only failed to invite the Court of Cassation to suspend or adjourn the proceedings in his case in view of the apparent incompatibility with the Constitution, until such time as that incompatibility had been remedied or the deadline set by the Constitutional Court (31 December 2008) had expired, but he also, more generally, failed to invite the Court of Cassation to take his financial situation into account. We note in this context that the Court of Cassation ’ s decision in the applicant ’ s case was not taken until 30 October 2008, that is, some three weeks after the Constitutional Court ’ s judgment and two months before the expiry of the deadline set by the Constitutional Court.

5. In any event, the ineffectiveness (if any) of the remedy in question, as established by the majority, was not absolute but relative, given that its accessibility depended upon the applicant ’ s ability to bear the costs of the fees charged by licensed lawyers. The applicant asserts that he was unable to pay the fee likely to be charged by a licensed lawyer. We are very sensitive to this argument. Access to court should never be blocked by excessive financial burdens and any such allegation deserves the Court ’ s careful attention.

In the instant case, however, the applicant ’ s assertion that the financial burden placed on him was excessive has not been sufficiently substantiated. On this point the reasoning remains completely unpersuasive, in that it appears that the majority accepted the applicant ’ s allegations about his inability to pay the lawyer ’ s fees without seeking to assess his real situation. After all, we have no information about either the applicant ’ s financial situation or the fees he would have been charged in order to lodge his appeal with the Court of Cassation. Moreover, there is no evidence that, despite the apparently clear statutory requirement, the applicant ever approached a licensed lawyer to enquire about the likely costs of lodging such an appeal.

6. Concerning the question of compensation, Judge Wojtyczek voted against awarding to the applicant the amount of 14,000 euros in respect of non-pecuniary damage. Taking i n t o account the amount of compensation awarded in similar cases, he found the amount awarded to the applicant excessive. Judge Eicke agreed with the majority on this issue.