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FOURTH
SECTION
CASE OF BĄKOWSKA v. POLAND
(Application
no. 33539/02)
JUDGMENT
STRASBOURG
12 January 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Bąkowska v.
Poland,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Giovanni Bonello,
Ljiljana
Mijović,
Päivi Hirvelä,
Ledi
Bianku,
Nebojša Vučinić, judges,
and
Lawrence Early,
Section Registrar,
Having
deliberated in private on 8 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33539/02) against the
Republic of Poland lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Polish national, Ms
Emilia Bąkowska (“the applicant”), on 5 September
2002.
- The
Polish Government (“the Government”) were represented by
their Agent, Mr J. Wołąsiewicz of the Ministry of
Foreign Affairs.
- The
applicant alleged, in particular, that he had been deprived of access
to the Supreme Court.
- The
applicant and the Government each filed observations on the merits
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1949 and lives in Słupsk.
- On
5 November 2000 the applicant filed a claim for payment against
a housing co operative of which she was a member. By a
judgment of 27 February 2001 the Słupsk Regional Court
dismissed the claim. The judgment was upheld on 7 September 2001
by the Gdańsk Court of Appeal. On 21 November 2001 the
applicant was served with that judgment together with its written
grounds.
- On
10 December 2001 she filed a request with the Słupsk Regional
Court to be granted a legal-aid lawyer for the purpose of lodging a
cassation appeal. Her request was subsequently forwarded to the
Gdańsk Court of Appeal as the Słupsk court lacked
jurisdiction to deal with it. The request was allowed by a decision
of 17 December 2001.
- On
18 December 2001 the decision of 17 December 2001 was served on the
local Bar Association. At the same time the Gdańsk Court of
Appeal informed the Bar about the date on which the applicant had
been served with the second-instance judgment.
On 3
January 2002 the Bar Association informed the applicant that a
legal-aid lawyer had been assigned to her case. By a letter of
19 January 2002 to the court the lawyer refused to lodge a
cassation appeal, finding no grounds to do so. The letter read:
“Having examined the file in detail, I have not
found grounds for lodging a cassation appeal. The judgment given on 7
September 2001 by the Court of Appeal did not breach any provisions
of substantive law. Nor were any provisions of procedural laws
violated during the proceedings.
The findings of fact made by the courts show without any
ambiguity that the applicant had never had the right to a
co-operative apartment which could be assimilated to ownership. She
had admitted, both before the first-instance and the appellate court,
that at the time of the exchange of apartments she had been aware
that her right was only assimilable to the rights arising out of a
rental contract. (...) It had been open to her to take steps in order
to have her right transformed into an ownership-like right, but she
had not done so. Hence, the first instance court was right in finding
that the defendant housing co-operative was not obliged to pay
compensation to the applicant. The appellate court accepted these
findings. In these circumstances, a cassation appeal would not offer
any prospects of success.”
- On
23 January 2002 the applicant requested the Gdańsk Court of
Appeal to assign a new legal-aid lawyer to her case.
- On
29 January 2002 the court informed the applicant that she should file
a request with the Bar Association for a new lawyer to be appointed.
On 4 February 2002 the applicant accordingly submitted her request to
the local Bar Association.
- By
a letter of 19 February 2002 the Bar Association dismissed the
request, having found that the applicant's previous legal aid
lawyer had been entitled to refuse to draft a cassation complaint.
- On
4 March 2002 the applicant again requested the court to assign a
legal aid lawyer to the case. On 15 March 2002 the Gdańsk
Court of Appeal informed the applicant that the refusal to lodge a
cassation appeal could not justify assigning a new lawyer for the
same purpose.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Legal aid
- Pursuant
to Article 5 of the Code of Civil Procedure, a court should give all
necessary procedural instructions to a party acting without a lawyer
and, in particular, should indicate the consequences of that party's
acts or failures to act.
- Article
113 § 1 of the Code of Civil Procedure provides that a party to
the proceedings may ask the court competent to deal with the case to
grant him or her an exemption from court fees provided that he
submits a declaration to the effect that the fees required would
entail a substantial reduction in his and his family's standard of
living.
- Pursuant
to Article 117 of the Code, persons exempted from court fees may
request that legal aid be granted to them. The court will then
request the relevant District Bar Association or the District Chamber
of Legal Advisers to assign an advocate or a legal adviser to the
claimant's case.
B. The cassation appeal
- At
the material time a party to civil proceedings could lodge a
cassation appeal with the Supreme Court against a final judicial
decision of a second instance court which terminated the
proceedings.
- Under
Article 393 4 § 1 of the Code of Civil Procedure
a cassation appeal had to be lodged with the court that had given the
relevant decision within one month from the date on which the
decision with its written grounds was served on the party concerned.
Cassation appeals which were not lodged by an advocate or a legal
adviser would be rejected.
C. Relevant provisions of the Bar Act
- Article
1 of the Bar Act of 1982, as amended, reads, insofar as relevant:
“1. The Bar is established to
provide legal assistance, co-operate in protecting a person's rights
and freedoms as well as to formulate and apply the law.
2. The Bar is organized as a self-governing association.
3. An advocate whilst executing his/her professional
duties is accountable only to the law.”
19. Article 3 of the Act provides as
follows:
“The general tasks of the professional Bar Council
are as follows:
1) creation of conditions for the
statutory performance of the Bar's tasks,
2) representation of the Bar and protection of its
rights,
3) supervision over the observance of the rules
regulating the practice of the profession,
4) development of professional skills and training of
advocates,
5) determination and promotion of professional ethics
and ensuring their observance,
6) management (...) of the Bar's
assets.”
- Article 28
of the Act reads:
“1. An advocate may only refuse to provide legal
assistance for important reasons of which he must notify the
interested party. Any doubts as to whether to provide legal
assistance or refuse to do so shall be resolved by the local Bar
Council, and in situations where time is of the essence, by the Dean
of that Council.
2. In cases where legal assistance is granted on the
basis legal regulations concerning legal aid, only the entity
appointing the advocate to represent the client may decide to relieve
him or her from providing legal assistance.”
- Under
Article 21 § 3 of the Act, an advocate shall provide legal aid
services in the jurisdiction of a court where he or she has their
office.
- Lawyers
are bound to act in accordance with rules of professional and ethical
conduct enacted by the Bar Association. They may be held accountable
for professional misconduct or a breach of ethical principles in the
proceedings before the bar disciplinary court.
23. Under
Article 57 of the Body of Ethical Rules adopted by the
National Bar Council on 10 October 1998, when
an advocate, either privately hired by the client or appointed
under the legal aid scheme, considers that submission of
an appeal in a case offers no reasonable prospect of success and the
client
disagrees with his or her view, the lawyer shall give notice of
termination of the power of attorney, terminate the representation,
or
notify the
refusal to the body which appointed him or her.
D. Resolution of the Supreme Court of 2000 (III CZP
14/00)
- In
2000 the Supreme Court issued a resolution in reply to a legal
question whether a legal aid lawyer could refuse to lodge a
cassation appeal. It replied to the question in the positive.
- The
court observed that issues involved in the grant of legal aid
concerned not only the proper administration of justice, but also
touched on human rights, and the right of access to a court in
particular. Nevertheless, there was no comprehensive and coherent
regulation of legal aid available under Polish law.
- The
mere fact that it was necessary for a cassation appeal to be lodged
by a qualified representative was not open to criticism. However, a
certain conceptual confusion was to be noted in the provisions
governing legal aid as a whole, mostly because the legislator had
failed to harmonise the relevant provisions of civil and criminal
procedure. In particular, the scope of legal aid lawyers'
obligations when legal representation was mandatory was not directly
addressed by provisions of civil procedure.
- As
a result, the scope of legal aid lawyers' obligations to provide
a party to the proceedings with “legal aid” in civil
proceedings was unclear. In particular, the provisions on lawyers'
legal aid obligations in connection with cassation proceedings
before the Supreme Court lacked clarity. The application of the
relevant provisions had given rise to serious difficulties of
interpretation and discrepancies in the case-law of the Polish
courts.
- The
court observed that the issue of the possible conflict between the
opinion of a party granted legal aid and a lawyer assigned to
represent him or her for the purpose of cassation proceedings had not
been directly addressed by the applicable law. The notion of legal
assistance could not be identified with a simple obligation of a
lawyer to act in accordance with the client's wishes. The role of a
legal aid lawyer had rather to be understood as obliging him or
her to provide legal advice to the party, including as to the
prospects of success offered by a cassation appeal against a given
judgment.
- The
constitutional role of the Supreme Court, the highest judicial
authority, was also an argument in favour of the conclusion that a
legal aid lawyer was not compelled by the will of the party to
have a cassation appeal lodged if such an appeal was bound to fail.
In case of a disagreement between the party and the lawyer, it was
open to the party to complain to the local Bar under Article 28 of
the Bar Act. The Bar could then appoint a new lawyer who could lodge
a cassation appeal, requesting at the same time to be granted leave
to appeal out of time under Article 169 of the Code of Civil
Procedure. It was true that the practice of the Supreme Court was not
coherent in that in some cases it had rejected such requests and in
others it had accepted them. However, it did not prevent the parties
from having recourse to this course of action.
E. Retrospective leave to submit a cassation appeal out
of time
- Pursuant
to Article 169 of the Code of Civil Procedure, a party to the
proceedings may ask for retrospective leave to perform a procedural
measure outside the prescribed time-limit; this measure shall be
performed simultaneously with the lodging of the request.
- Article
133 § 3 of the Code of Civil Procedure reads, in so far as
relevant:
“If a legal representative ... has been appointed
in a case, the court correspondence shall be served on [him or her].
- However,
in a number of decisions the civil courts have held that the running
of the time-limit for lodging a cassation appeal is not affected in
any way by a request for legal aid submitted by a hitherto
non-represented party and its subsequent grant or refusal. That
time-limit starts to run on the date when the party was served with
the judgment of the appellate court together with its written
grounds, also where the request for legal aid has subsequently been
granted (the Supreme Court's decisions of 15 April 1997, II CZ
35/97; 18 April 1997, I PKN 120/97; 10 September 1998, II UZ 101/98;
6 July 1999, II UKN 332/99; 9 August 2000, I CKN 747/00; 23 March
2001; II UZ 17/01; 19 June 2001, I PZ 33/01; 27 September 2001, II UZ
51/01; 28 November 2001, II UZ 85/01, 15 December 2005, I UZ 33/05).
- The
Supreme Court has repeatedly held that a request for leave to appeal
out of time was the only method by which a cassation appeal submitted
after the expiry of the time limit could be admitted for
examination (21 April 1997, II CZ 38/97; 27 September 2001, II UZ
51/01). In a further series of decisions the Supreme Court considered
that it would be unfair for the legally-aided party to be penalised
for the fact that legal aid applications could not be processed
quickly enough to make it possible for a cassation appeal to be
lodged within thirty days counted from the day of service of the
judgment on the party. A request to appeal out of time should
therefore be submitted within seven days from the date on which the
lawyer could obtain effective access to the case file or had an
effective possibility of drafting an appeal (4 March 2005, II UZ
72/04; 27 June 2000, I CZ 62/00), or from the date when the lawyer
was informed that he had been assigned to the case by the local bar
association (11 October 2001, IV CZ 163/01; 17 November
1998, II UZ 122/98; 11 October 2001, IV CZ 163/01).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained under Article 6 § 1 of the Convention that
she had been denied access to the Supreme Court.
Article 6
§ 1 reads, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
-
The Government submitted that the applicant had failed to exhaust
relevant domestic remedies. She should have brought a civil action
for compensation against the legal aid lawyer. They were of the
view that a civil action was an effective remedy where a lawyer,
either legal aid or privately hired, was negligent in carrying out
his or her duties regarding legal representation in judicial
proceedings. They also referred to a complaint to the local Bar
Association under Article 28 of the Bar Act.
The
applicant did not address this issue.
-
The Court observes that the remedies referred to by the Government
were merely of a retrospective character. They could only, and if the
applicant had been successful, have resulted either in the courts
granting damages or in the Bar Association finding the lawyer at
fault. Such retrospective measures alone were not sufficient to
ensure effective access to a court competent to determine the
applicant's civil rights and obligations. The Court therefore rejects
the Government's
objection.
- The
Court further notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
Merits
1. The Parties' arguments
- The
applicant submitted that her interests had not been properly
safeguarded by the legal-aid lawyer. In particular, the lawyer's
refusal to lodge a cassation appeal had been served on the applicant
after the expiry of the time limit for lodging it.
- The
Government argued that the applicant's case had been examined at two
levels of jurisdiction. Neither the Convention nor domestic law
guaranteed a right to have a civil case heard at three levels of
jurisdiction. The right to a court was not absolute and could
therefore be subject to certain limitations, in so far as they did
not impair the very essence of that right. In particular, the
criteria of admissibility of appeals to be lodged with the highest
courts could be strict and the procedure more formal than that before
the lower courts, without the requirements of Article 6 of the
Convention being breached thereby. The mere fact that it was
necessary for a cassation appeal to be lodged by a qualified
representative was not open to criticism.
- The
Government further submitted that in principle the grant of legal aid
did not affect the running of the thirty-day time limit for
lodging a cassation appeal with the Supreme Court. However, the
case law of the Polish civil courts indicated that retrospective
leave to appeal out of time could be granted where legal aid for the
purposes of lodging a cassation appeal had been given, but the
legal aid lawyer could not comply with all the relevant
formalities within that time-limit.
- They
further referred to the resolution of the Supreme Court given in
September 2000. That court had held that a lawyer assigned to a case
under a legal aid scheme was entitled to refuse to lodge a
cassation appeal in civil proceedings, if he or she was of the view
that this remedy offered no reasonable prospects of success. The
Government stressed that the notion of legal aid was not to be
understood as providing legal representation in proceedings in all
cases. It also comprised the provision of legal advice on the
prospects of success offered by a given legal remedy in the
particular context of each case. The lawyers' tasks could not be
perceived as following their clients' instructions and wishes
uncritically and lodging remedies against their better judgment. Nor
was it the role of the State to compel lawyers to do so. Hence, the
lawyer's refusal had served the purpose of securing the proper
administration of justice by the Supreme Court, including ensuring
that the case load of that court would not be unreasonably increased
by unmeritorious cassation appeals.
- The
Government submitted that the applicant had failed to act diligently.
She had received the judgment of the appellate court on 21 November
2001 and it was from that date that the thirty-day time limit
had started to run. However, she had submitted her request for legal
aid almost three weeks later, on 10 December 2001. Moreover, she
had submitted it to the wrong court and her request had had to be
forwarded to the Gdańsk Court of Appeal. Her request had been
processed very quickly as it had taken the latter court only three
days to grant her legal aid. Subsequently, the Gdansk Bar Association
assigned the case to a lawyer within five days. The lawyer had
examined the applicant's case within sixteen days and had given a
reasoned legal opinion on the prospects of success of a cassation
appeal.
- The
Government concluded that the applicant's case had been processed
with all requisite diligence.
2. The Court's assessment
a. The principles established by the Court's case-law
- The
Convention does not compel the Contracting States to set up courts of
appeal or of cassation. However, where such courts do exist, the
guarantees of Article 6 must be complied with, for instance in that
it guarantees to litigants an effective right of access to the courts
for the determination of their “civil rights and obligations”
(see, among many other authorities, Levages Prestations Services
v. France, 23 October 1996, Reports 1996-V,
pp. 1544-45, § 44, and Poitrimol v. France,
judgment of 23 November 1993, Series A no. 277 A,
§ 13-15). The manner in which this provision applies to
courts of appeal or of cassation depends on the special features of
the proceedings concerned and account must be taken of the entirety
of the proceedings conducted in the domestic legal order and the
court of cassation's role in them. Given the special nature of the
court of cassation's role, which is limited to reviewing whether the
law has been correctly applied, the Court is able to accept that the
procedure followed in such courts may be more formal (see Meftah
and Others v. France [GC], nos. 32911/96, 35237/97 and
34595/97, § 41, ECHR 2002 VII).
- A requirement that an appellant be represented by a
qualified lawyer before the court of cassation, such as in the
present case, cannot in itself be seen as contrary to Article 6. This
requirement is clearly compatible with the characteristics of the
Supreme Court as a highest court examining appeals on points of law
and it is a common feature of the legal systems in several member
States of the Council of Europe (see Gillow v. the United
Kingdom, judgment of 24 November 1986, Series A no. 109,
§ 69; Vacher v. France, judgment of 17 December
1996, Reports of Judgments and Decisions 1996 VI,
pp. 2148-49, §§ 24 and 28; Tabor v. Poland,
no. 12825/02, § 42, 27 June 2006; Staroszczyk
v. Poland, no. 59519/00, § 129, 22 March
2007; Siałkowska v. Poland, no. 8932/05, § 106,
22 March 2007).
- It
is for the Contracting States to decide how they should comply with
the fair hearing obligations arising under the Convention. However,
the Court must satisfy itself that the method chosen by the domestic
authorities in a particular case is compatible with the Convention.
In discharging its obligation to provide parties to proceedings with
legal aid when it is provided by domestic law, the State must,
moreover, display diligence so as to secure to those persons the
genuine and effective enjoyment of the rights guaranteed under
Article 6 (see Del Sol v. France, no. 46800/99,
§ 21, ECHR 2002 II; Staroszczyk v. Poland,
cited above, § 130, Siałkowska v. Poland,
cited above, § 107, Smyk v. Poland,
no. 8958/04, § 4, 28 July 2009; Arciński
v. Poland, no. 41373/04, § 34, 15 September 2009 and
R.D. v. Poland, nos. 29692/96 and 34612/97, § 44,
18 December 2001, mutatis mutandis).
- The
Court has already held that the mere
fact that a legal aid lawyer can refuse to represent a party in
proceedings before the highest court cannot be said to be, of itself,
tantamount to a denial of legal assistance which is incompatible with
the State's obligations under Article 6 of the Convention
(Siałkowska v. Poland, cited above, § 113;
Antonicelli v. Poland, no. 2815/05, § 38,
19 May 2009, Kulikowski v. Poland, no. 18353/03,
§ 63, 19 May 2009). However, an adequate
institutional framework should be in place so as to ensure effective
legal representation for entitled persons and a sufficient level of
protection of their interests. In particular, the existence of
regulations concerning the time-frame within which the lawyer should
inform the party of a refusal to prepare a cassation appeal has been
considered crucial for the assessment of whether the party's
interests have been properly safeguarded (Siałkowska
v. Poland, cited above, § 114-115).
- The
Court further reiterates that admissibility conditions for appeals
are necessary to ensure legal certainty and the proper administration
of justice and litigants should normally expect those rules to be
applied. However, a particularly strict interpretation of a
procedural rule may deprive an applicant of the right of access to a
court (see Běleš and others v. Czech Republic,
no. 47273/99, § 60, 12 November 2002; Zvolský
and Zvolská v. Czech Republic, no. 46129/99,
12 November 2002; Kemp and Others v. Luxembourg,
no. 17140/05, § 42, 24 April 2008, mutatis
mutandis)
b. Application of the principles to the facts of the
case
- Turning
to the circumstances of the present case, the Court first observes
that where a party to civil proceedings is represented by a lawyer,
the procedural time-limits set by the Code of Civil Procedure start
to run on the date of the service of judicial decisions on the lawyer
(see paragraph 31 above; see also Smyk v. Poland,
cited above, § 63).
- Where
a party does not have legal representation, as in the present case,
and is granted legal aid only after the second-instance judgment has
been given, the case-law of the Supreme Court provides that the
time limit for lodging a cassation appeal starts to run from the
date on which the judgment of the appellate court has been served on
that party (see paragraph 32 above).
- The
Court observes that a party who is subsequently granted legal aid is
thereby put in a difficult position because at the time of service
the time-limit has already started to run. The Polish courts,
including the Supreme Court, have repeatedly held that his or her
request for legal aid does not affect the running of the time-limit.
A legal-aid lawyer subsequently assigned to the case has therefore
less time to examine the case and decide, still within the
time-limit, whether a cassation appeal offers prospects of success
and to prepare it.
- The
Court further notes that the applicable domestic regulations do not
specify the time-frame within which the applicant should be informed
about the refusal to prepare a cassation appeal (see Siałkowska,
cited above, § 114, Smyk v. Poland, cited
above, § 60). The Court has already found that the way in which
those regulations were applied in practice were capable of leaving
legally-aided parties with no realistic opportunity of having their
cases brought to the Supreme Court within the time-limit provided for
by law (Siałkowska v. Poland, cited above,
no. 8932/05, §§ 11 - 155). In the present case
the second-instance judgment, together with its written grounds, was
served on the applicant on 21 November 2001. It was on that date that
the thirty day time-limit for lodging the cassation appeal
started to run.
- However,
the Court observes that subsequently the applicant submitted her
request for legal aid on 10 December 2001, almost three weeks later.
It has not been shown or even argued that this delay had been
justified by any special circumstances for which the applicant could
not be held responsible, or that she could not have been aware of the
time limit within which a cassation appeal had had to be
submitted to the court. The time limit was to expire on
21 December 2001. The court, having received her request,
examined it speedily and granted her request on 17 December
2001.
- Having
regard to the delay with which the applicant availed herself of her
procedural right, the Court is of the view that she failed to display
diligence which should normally be expected from a party to civil
proceedings (see Pretto and Others v. Italy, judgment of
8 December 1983, Series A no. 71, pp. 14-15, § 33
).
- The
Court therefore concludes that in the particular circumstances of the
present case there has been no violation of Article 6 § 1
of the Convention.
II. OTHER ALLEGED
VIOLATIONS
OF THE CONVENTION
- The
applicant also complained, in her letter submitted to the Court on 8
December 2008, that the circumstances of the case had given rise to
violations of Articles 8, 13 and 14 of the Convention as well as of
Article 1 of Protocol No. 1 to the Convention. The Court
notes that the final decision in the case was given on 15 March 2002.
It follows that this aspect of the application has been introduced
outside the six-month time-limit prescribed by Article 35 § 1
and must be rejected, pursuant to Article 35 § 4 of
the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously admissible the complaint
concerning access to the Supreme Court and the remainder of the
application inadmissible;
- Holds by six votes to one that there has been no
violation of Article 6 § 1 of the Convention.
Done in English, and notified in writing on 12 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the
Convention and Rule 74 § 2 of the Rules of Court, the separate
opinion of Judge Bonello and the dissenting opinion of Judge Mijović
are annexed to this judgment.
N.B.
T.L.E.
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
emphasised in my previous concurring
opinions in four recent cases,
and in the joint dissenting opinion in Smyk v. Poland, 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 both civil and
administrative proceedings.
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.
