DISSENTING OPINION OF JUDGE BONELLO JOINED BY JUDGE MIJOVIĆ

1. In our separate concurring opinions in two recent cases, [1] Judge Mijović and I have placed on record wh at we think of the Polish legal ‑ aid system relating to cassation appeals to the Supreme Court.

2. In those cases which concerned the failure of legal ‑ aid lawyers to file cassation appeals, the Court had found a violation of Article 6 § 1 in conjunction with Article 6 § 3 c. The reasons stated in those concurring opinions apply even more compellingly to the present case in which the Court failed to find any violation of the Convention. To avoid repetition, I refer to the detailed reasoning of those two concurring opinions.

3. I find the new argument included in paragraph 63 of the present judgement additionally objectionable: “Moreover it has not been shown or argued that before the expiry of the time limit (for appeal) the applicant took any steps with a view to obtaining legal assistance from a privately hired lawyer”.

4. In the view of the majority, applicants who have been certified by the domestic court to be entitled to legal aid because they cannot afford to hire a private lawyer , have themselves to blame for not having hired a private lawyer when the legal ‑ aid lawyer fails them.

5. Applicants are granted legal aid only because the domestic court is satisfied they do not have the means to hire a paid lawyer. Then, after being officially certified indigent by the state, they lose the right to appeal to the Supreme Court because they have not hired and paid for a lawyer the S tate is satisfied they are not in a p osition to pay. They are penalis ed for not having done what the S tate has accepted they are unable to do.

[1] Kulikowski v. Poland , n° 18353/03, 19 May 2009 and Antonicelli v. Poland , n° 2815/05, 19 May , 2009