CONCURRING OPINION OF JUDGE MALINVERNI, JOINED BY JUDGES KOVLER AND SPIELMANN

(Translation)

1 . I voted with all my colleagues against finding a violation of Article 6 for the reasons set out, in particular, in paragraphs 32 to 41 of the judgment. In the instant case the applicant was indeed represented by a lawyer at first instance and during the initial stages of the appeal proceedings. The lawyer also outlined for him the main arguments on which to base his address before the court (see paragraphs 38-41).

2 . I am, nevertheless, of the opinion that the judgment does not address the most important issue raised by this case, namely the granting of free legal assistance in proceedings before the administrative courts.

3 . The reason advanced by the Supreme Court for refusing legal aid to the applicant was that, under the “relevant provisions of the Legal Aid Law ... legal aid could only be provided in criminal proceedings, civil proceedings that concern determination of a litigant ’ s human rights and proceedings lodged before the family courts ”. The Supreme Court went on to find that “[t] he proceedings introduced by the applicant, who sought judicial review under Article 146 of the Constitution of a decision refusing to appoint him in the civil service, did not constitute civil proceedings and, as such, his legal aid application had to be refused ” (see paragraph 14).

4 . The same argument was put forward by the Government in their memorial to the Court, in which they stated that: “t he Supreme Court had rightly dismissed the applicant ’ s legal aid request since legal aid was not available under the domestic law for administrative proceedings ” (see paragraph 26).

5 . Hence, the Cypriot legislation on legal aid, although it dates back only to 2002, rules out the granting of legal aid in public-law proceedings. In my view, a question arises as to the conformity of such legislation with the requirements of Article 6 of the Convention as regards the determination of civil rights and obligations , within the autonomous meaning of that expression.

6 . Admittedly, Article 6 of the Convention does not make explicit provision for free legal assistance except in criminal proceedings (Article 6 § 3 (c)). However, since the right to such assistance is designed to guarantee equal opportunities for the parties before the courts, so that the latter are accessible to all citizens irrespective of their financial situation, there is a priori no reason why it should not be made available in spheres other than criminal law.

7 . For that reason the Court, on the basis of Article 6 § 1 of the Convention, has accepted that “ despite the absence of a similar clause [to Article 6 § 3 (c)] for civil litigation, Article 6 § 1 may sometimes compel

the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court ” (see Airey v. Ireland , 9 October 1979, § 26 , Series A no. 32 ; see also Aerts v. Belgium , 30 July 1998, §§ 57-60 , Reports of Judgments and Decisions 1998 ‑ V , and Gnahoré v. France , no. 40031/98, § 38 , ECHR 2000 ‑ IX ).

8 . In truth , the right to free legal assistance should not depend either on the legal nature of the applicable provisions or on the procedural sphere concerned. It should be granted for all types of proceedings. In other words, the right to legal aid should depend solely on whether the applicant needs it in order to be in a position to defend his or her rights effectively.

9 . In recent decades, administrative law has increased in importance and complexity, with the result that not only individuals, but also the administrative authorities, have an interest in ensuring that the former are represented in difficult cases by a competent lawyer.

10 . In addition, the impartiality of the administrative authorities is often overestimated, if we consider that they are being asked to defend the public interest and at the same time to ensure that the individuals involved in the proceedings do not suffer damage as a result.

11 . Finally, there is no justification for the lack of equality between impoverished persons involved in criminal or civil proceedings, who have access to the courts free of charge, and impoverished persons engaged in administrative proceedings, who have to pay their lawyers ’ fees.

12 . All these arguments militate in favour of extending legal aid to administrative-law proceedings, provided of course that Article 6 of the Convention is applicable under its civil head and legal aid is indispensable in order to ensure effective access to a court by reason of the complexity of the procedure or of the case, or where for any other reason the interests of justice so require.