CONCURRING OPINION OF JUDGE MIJOVI Ć

As emphasised i n my previous concurring/dissenting opinions in ten recent cases , [1] and in the joint dissenting opinion in Smyk v. Poland , no. 8954/04 , 28 July 2009 , I see the problem of the refusal of lawyers appointed under legal-aid 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 civil and administrative proceedings. To avoid repetition , I refer to the detailed reasoning of those opinions.

SEPARATE OPINION OF JUDGE De Gaetano

1. I voted in favour of a violation of Article 6 § 1 when read in conjunction with Article 6 § 3 (c) only because of the particular facts of the case set within the context of a peculiar domestic case-law.

2. After the applicant – who was represented throughout the proceedings by a legal-aid lawyer – was convicted of grievous bodily harm and sentenced to imprisonment for five years , and after the Court of Appeal had upheld the first instance judgment , his legal-aid lawyer informed the latter court that he had not found any grounds on which to prepare a cassation appeal. The Court of Appeal informed the applicant , who was already in prison , of this fact but failed to inform him of his “procedural rights” , namely that the time-limit for filing a cassation appeal in the (unlikely) event of his managing to obtain the services of another lawyer at his own expense or of a lawyer acting pro bono , commenced to run (or , more precisely , commenced to run again) from the date on which that same court had notified him of the legal-aid lawyer ’ s refusal. This is the crux of the issue , set out in §§ 25 and 27 of the judgment.

3. How does this requirement to inform about “procedural rights” square with – if at all – the cardinal rule that everyone is presumed to know the law , whether substantive or procedural , and regardless of whether the law is statutory , judge made (or common law in some jurisdictions) or customary as the case may be? Because of the fact that this rule is so basic and fundamental , one finds only cursory references to it in the jurisprudence of the Commission and the Court , and only in a handful of cases ( e.g. Dello Preite v. Italy (no. 15488/89) Commission decision 25 February 1995; E.E. v. Austria (no. 31697/96) 7 September 1999; Polednová v. the Czech Republic (no. 2615/10) 21 June 2011).

4. In order to obviate some of the difficulties inherent in , and criticisms of , the Polish system of cassation appeals [2] , particularly when convicted prisoners who were represented by legal-aid lawyers were involved , the Polish Supreme Court , in a decision handed down on 26 February 2002 , changed its previous position concerning the date from which the time for lodging a cassation appeal commences to run , and held ( i ) that when a legal ‑ aid lawyer refused to file a cassation appeal on behalf of a convicted prisoner because in the lawyer ’ s view the appeal would offer no prospects of success , the time-limit for lodging the appeal would start to run only from the date on which the prisoner was informed by the Court of Appeal of the legal-aid lawyer ’ s opinion and not from the earlier date when the judgment of the appellate court was served on the prisoner; moreover (ii) it also held that the Court of Appeal was also specifically to instruct the prisoner of this fact so that if he wanted to he could take other measures to seek the legal assistance necessary for the lodging of a cassation appeal (see , Kulikowsky v. Poland 19 May 2009 , § 27). It is against the backdrop of this specific domestic decision that the instant case (as well as other similar ones where a violation has been found on account of the appellate court not having advised the prisoner about his “procedural rights” in respect of the cassation appeal , e.g. Jan Zawadzki v. Poland (no. 648/02) 6 July 2010 , § 16)) has to be viewed [3] .

5. We are now in the last quarter of the year of Our Lord 2011 . More than nine years have passed since the decision of the Supreme Court of Poland which established the “new” procedure as to the running of the time-limit. In the instant case , the facts mentioned in paragraph 2 , supra , occurred between September 2008 and August 2009. Has not enough time passed so that this Court could say that the issue of the time-limit for the filing of a cassation appeal pursuant to the legal-aid lawyer ’ s refusal to file the same , is now well established judge-made law which must be presumed to be known by one and all? Apparently not. It is important to recall in this connection that not every or any procedural failing – in the sense of the non-observance of domestic procedure – will necessarily amount to a breach of Article 6. One possible justification for finding – notwithstanding the passage of time – a violation of Article 6 § 1 in conjunction with Article 6 § 3 (c) is that a person who is in detention is hardly at liberty to rush headlong into a lawyer ’ s office to seek his advice upon receipt of the Court of Appeal ’ s letter , and that therefore this person ’ s “vulnerable” position makes the requirement that he should be informed of his “procedural rights” necessary in order to give substance to the said articles. To my mind this argument is not very convincing , since the time-limit is not just a matter of a few days or of a couple of weeks , but of thirty running (calendar) days. What the Court is possibly trying to say in the instant judgment is that the legal-aid lawyer ’ s refusal to file the appeal somehow engages the State ’ s additional obligation to provide , free of charge , advice as to the applicant ’ s “procedural rights”.

6 . Be that as it may , what is to be avoided is the development of phrases , like those used in §§ 25 and 27 of the present judgment , into mantras which , often inadvertently , are then extrapolated to other situations thereby undermining the principle that everyone is presumed to know the law.

[1] . Kulikowski v. Poland , no. 18353/03 , ECHR 2009 ‑ … (extracts) ; Antonicelli v. Poland , no. 2815/05 , 19 May 2009 , ArciÅ„ski v. Poland , no. 41373/04 , 15 September 2009 , Zapadka v. Poland , no. 2619/05 , 15 December 2009; Jan Zawadzki v. Poland , no. 648/02 , 6 July 2010 , S ubicka v. Poland , no. 29342/06 , 14 September 2010 , BÄ…kowska v. Poland , no. 33539/02 , 12 January 2010 , Slowik v. Poland , no. 31477/05 , 12 April 2011 , Subicka v. Poland (n° 2 ) nos. 34043/05 and 15792/06 , 21 June 2011 and Kowalczyk Teresa v . Poland , no. 23987/05 , 11 October 2011.

[2] 1. See, for such criticism , the concurring opinions of Judges Bonello and Mijovic in Kulikowsky v. Poland (no. 18353/03) and Antonicelli v. Poland (no. 2815/05) , both decided on 19 May 2009. The difficulties which legally-aided parties experience in connection with the lodging of cassation appeals in administrative cases seem to have been also acknowledged by the Supreme Administrative Court in Poland – see Subicka v. Poland (no. 29342/06) 14 September 2010 § 18. This case also distinguishes between administrative , civil and criminal cassation appeals.

[3] 2.  See also Słowik v. Poland (no. 31477/05) 12 April 2011 where no violation was found because in the note of the appellate court accompanying the legal-aid lawyer’s refusal to file a cassation appeal that court had “…informed the applicant , in compliance with the case-law of the Supreme Court…that on the date of the service of that refusal the thirty-day time-limit for lodging a cassation appeal started to run anew. Hence , the Court is of the view that the court took appropriate steps to inform the applicant of his procedural situation.” (§ 22).