The Right of Access to a Court – recent case law of European Court of Human Rights

1. The Right of Access to a Court – recent caselaw of European Court of Human Rights Nikolina Katić, assistant Government Agent of the ROC before ECHR

2. Right to a court – Article 6 § 1 of the Convention • „In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. „ • one of the “universallyrecognized fundamental principles of law” • First it was defined in the case Golder v UK • The right of access to a court must be “practical and effective” • One of the aspects oftheright to a fair trial (Article 6 oftheConvention) • Itisthecorestoneoftheruleoflawandsafeguardfromthearbitrarypower

3. Who canclaimright to access to a court? • Everyone has the right to have any claim relating to his “civil rights and obligations” brought before a court or tribunal • Right to access to a court = the right to institute proceedings before courts in civil matters→an individual must “have a clear,practical opportunity to challenge an act that is an interference with his rights” • anyone who considers that an interference with the exercise of one of hisor her civil rights is unlawful and complains that he or she has not had the possibility of submittingthat claim to a tribunal meeting the requirements of Article 6 § 1

4. Limitations? • NOT AN ABSOLUTE RIGHT • may be subject tolimitations, but these must not restrict or reduce the access left to the individual in such a way or tosuch an extent that the very essence of the right is impaired • conditions of admissibility of an appeal - the states enjoy margin of appreciation • limitation will not be compatible withArticle 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship ofproportionalitybetween the means employed and the aim sought to be achieved • Formal steps required and time-limitations are not considered to be contrary to requirementsofArticle 6 oftheConvention→ensuring the properadministration of justice and compliance, in particular, with the principle of legal certainty

5. Obligationsofdomesticcourts • In applyingtheprocedural rules, the courts must avoid both excessive formalism that would impair the fairness ofthe proceedings and excessive flexibility such as would render nugatory the proceduralrequirements laid down in statutes • shouldtake sufficient account of the particularcircumstances of the case and not apply the relevant rules and case-law too rigidly – deciding upon the circumstances of „each particular case” • Strike afair balance betweenthe interests of the authorities and of the persons concerned, in particular by affording the parties aclear, practical and effective opportunity to challenge the decisions

6. Buvač v Croatia • FACTS • The applicant filed a suit against the newspaper publisher seekingcorrectionoftheinformationpublishedintheprintedversionofthepaper • Hissuitwasdissmisedwithoutdeciding on thesubjectmatterofthecasebythecourtoffirst instance • Thefirst instance courtdeemedthatthe applicant tookwrongproceduralsteps – he shouldhave had firstlyaddressthenewspperpublisherwiththe same requestandthen file a civil suit • DECIOSON OF THE ECHR • Violation of 6§1 of the Convention – access to a court- excessive formalismofthedomesticcourts

7. Access to theSupreme Court • the conditions of admissibility of an appeal on points oflaw may quite legitimately be stricter than for an ordinary appeal • Zubac v. Croatia • Given the special nature of theSupremeCourt’srole, the procedure followed in the Court of Cassation may be more formal,especially where the proceedings before it follow the hearing of the case by a first-instance courtand then a court of appeal, each with full jurisdiction • Trevisanato v Italy

8. Recentcaselawofthe ECHR • Zubac v. Croatia (GC) • Trevisanato v Italy • Ramos Nunes de Carvalho e Sá v. Portugal (GC) • Kamenova v. Bulgaria • Naït-Liman v. Switzerland (GC)

9. Zubac v Croatia • FACTS • The applicant concluded a contract for the exchange of his house in Dubrovnik (the Republic of Croatia) for one in Trebinje (RepublikaSrpska, Bosnia and Herzegovina) • Afterhe brougta civil action seeking to declare the contract null and void on the basis that it had beensigned under duress, owing to circumstances arising from the war in Croatia – set thevalueofthedispute at 10.000 HRK • In thelaterstageoftheproceedingsraisedthevalueofthedispute to 105.000,00 HRK • First andsecond instance courtrejectedtheapplicant’sclaim – filedanappeal on pointsoflaw to theSupreme Court • the Supreme Court considered that the relevant value of the claim under consideration was the value stated on the claim documentsnottheincresedvalue (eventhoughlowercourtsupheldtheincresedvaluein decision on expences)

10. Zubac v Croatia • DECISION OF THE ECHR (GC) • application of a statutory threshold for making an appeal to the SupremeCourt was a legitimate and reasonable procedural requirement • Such a restriction also pursued the legitimate aimsofobserving the rule of law and the proper administration of justice – the role ofthe SC • application of the rules concerning the statutory minimum forlodging an appeal had not disproportionately hindered MsZubac’s right of access to a court, norgone beyond the State’s“margin of appreciation” to regulate the rules on access to court and the application of those rules • the Supreme Court should notbe bound by the errors of lower courts when determining the granting of access – the decision ofthe SC ensuredtheproperadministrationofjusticeandcorrectedthemistakemadebylowercourts • NO VIOLATION OF ARTICLE 6 § 1

11. Trevisanato v Italy • FACTS • The applicant wasemployedwith IBM for 32 yearswhen he wasdismissed • MrTrevisanato brought proceedings against the company IBM before the Milan Employment Tribunal asking it to declare his dismissal null and void or ineffective, and to order his reinstatement • Theclaimwasdissmised • The applicant appealed to the Court ofCassation • Court of Cassation declared the appeal inadmissible in the absence of an appropriate formulation of the point of law in accordance with Article 366bis of the Code of Civil Procedure. A request for revision was also declared inadmissible

12. Trevisanato v Italy • The Court observed that the purpose of Article 366bis of the Code of Civil Procedure (CCP) had been both to protect the party’s interest and to preserve the role of the Court of Cassation in ensuring the uniform interpretation of the law • limitation imposed by Article 366bis pursued a legitimate aim, meeting the requirements both of legal certainty and of the proper administration of justice • Theinadmissibilitydecision could not therefore be regarded as an excessively formalistic interpretation of the ordinary rules such as to preclude an examination on the merits of the applicant’s case • Additionaly the rule applied by the Court of Cassation was not judge-made but had been introduced by the legislature • NO VIOLATION

13. Ramos Nunes de Carvalho e Sá v. Portugal • FACTS • In 2010 and 2011 three sets of disciplinary proceedings were brought against the applicant, who was a judge atthecourtoffirst instance • (1)for calling the judicial inspector responsible for her performance appraisal a “liar” during a telephone conversation and accusing him of “inertia and lack of diligence”; (2)for the use of false testimony in the earlier proceedings; and (3)for asking the judicial investigator, in the course of a private conversation, not to take disciplinary action against the witness on her behalf who had been called during the first set of proceedings

14. Ramos Nunes de Carvalho e Sá v. Portugal • CSM, ruling in the three sets of proceedings, respectively ordered the applicant to pay 20 day-fines (20 days without pay) for acting in breach of her duty of propriety; suspended her from duty for 100 days for acting in breach of her duty of honesty; and suspended her for 180 days for acting in breach of her duties of loyalty and propriety • Theapplicant appealedagainstthedecisions to theSupreme Court • Judicial Division of the Supreme Court unanimously dismissed the three appeals • Suspeded for 100 days, therestofthepenaltybecame time barred

15. Ramos Nunes de Carvalho e Sá v. Portugal • DECISION OF THE ECHR • The applicant complaintaboutthelackofpublichearinginthestageoftheproceedingsbeforethe SC formingtheviolationofaccess to thecourtinArticle 6§1 • IstheJudicialDiviosonofthe SC inthiscase „a court” withinthemeaningofArticle 6-1? • even if they did not come within the scope of Article 6 of the Convention under its criminal head, disciplinary penalties could nevertheless entail serious consequences for the lives and careers of judges • When a member State initiated such disciplinary proceedings, public confidence in the functioning and independence of the judiciary was at stake; in a democratic State, this confidence guaranteed the very existence of the rule of law

16. Ramos Nunes de Carvalho e Sá v. Portugal • Proceedingsbefore CSM wasonlyinwriting, they had heard no witnesses, applicant didnotpresentherdefenceinoral - The Court therefore considered that the CSM had not exercised its discretionary powers on an adequate factual basis • The Court ruled NO VIOLATION of the Convention in connection to the applicant’s objection of the lack of impartiality – the pure abstractriskthatjudgesdeciding on theapplicant’scasecouldbeintheapplicant’spositionandthereforebeimpartialcannotcastdoubt on the (lack) ofimpartiality • the lack of a hearing either at the stage of the disciplinary proceedings or at the judicial review stage, meant that the applicant’s case had not been heard in accordance with the requirements of Article 6 § 1 of the Convention - VIOLATION

17. Kamenova v Bulgaria • FACTS • In 1997 the applicant’s daughter was killed in a traffic accident which had several victims. In 1999 the lorry driver responsible for the accident was convicted. • In 2001, after his conviction had been quashed and the case remitted for a fresh examination, the applicant filed her compensation claim. • In 2006 she was awarded damages, however, in 2007 the award was quashed and her claim was declared inadmissible on the grounds that it had been submitted out of time, that is, after the remittal of the case and not before its initial examination by a court of first instance, as required by the Code of Criminal Procedure • Later that year, the applicant brought a tort action against the driver before the civil courts. It was dismissed as time-barred, given that the statutory five-year limitation period had expired in 2002 and the applicant’s belated claim brought in the context of the criminal proceedings in 2001 could not have interrupted its running

18. Kamenova v Bulgaria • DECISION OF THE ECHR • Principle: the application of statutory limitation periods had to be foreseeable for the claimants, having regard to the relevant legislation, case-law and the particular circumstances • The Code of Criminal Procedure stated expressly that any civil claim had to be brought before the commencement of the examination of the case by the court of first instance, and case-law accepting exceptions to that rule was scarce. The applicant should thus have been aware in 2001, when she had brought her civil action in the criminal proceedings, only after a remittal of the case, that she ran a risk to have that action declared inadmissible • The applicant had not presented any explanation as for why she had failed to put forward her claim 

19. Kamenova v Bulgaria • Theriskofhavingherclaimdeclared time-barredwas on the applicant • It could therefore not be said that the statutory limitation period or the manner in which it had been interpreted or applied by the national courts had impaired the very essence of the applicant’s right of access to a court • NO VIOLATION

20. Naït-Liman v. Switzerland • FACTS • The applicant was arrested in April 1992 by the police in Italy and taken to the Tunisian consulate in Genoa, where he was presented with a bill of indictment according to which he represented a threat to Italian State security • He was then taken to Tunis by Tunisian agents – the applicant claimed he wastorturedinTunisia • fled Tunisia in 1993 for Switzerland, where he applied for political asylum; this was granted in 1995 • In 2001 the applicant learnedthatthemanwhotorturedhimwasin one ofthehospitalsinSwitzerland – he filed a criminalcomplaintandapplied to jointheproceedings as a civil party

21. Naït-Liman v. Switzerland • the principal public prosecutor discontinued the proceedings on the grounds that A.K. (personaccusedbythe applicant)had left Switzerland and that the police had been unable to arrest him • In 2004 the applicant lodged a claim for damagesagainst Tunisia and against A.KbeforethecourtinGeneva • the claim wasdeclairedinadmissible on the ground that it lacked territorial jurisdiction and that the Swiss courts did not have jurisdiction under the forum of necessity in the case at hand, owing to the lack of a sufficient link between, on the one hand, the case and the facts, and, on the other, Switzerland • All appealsweredissmissed

22. Naït-Liman v. Switzerland • DECISION OF THE ECHR (GC) • The GC held that Article 6 of the Convention was applicable in this case since, on the one hand, it concerned a “genuine and serious” dispute, and, on the other, the applicant could lay claim to a right which was, at least on arguable grounds, recognized under Swiss law • Restriction of the access to a court had legitimate aim: proper administration of justice, particularly in terms of the problems in gathering and assessing the evidence, the difficulties linked to execution of a judgment • proportionality of the restriction: the State enjoyed a certain margin of appreciation in regulating this right; the scope of this margin depended, inter alia, on the relevant international law in this area

23. Naït-Liman v. Switzerland • The Court identified two concepts of international law that were relevant for the present case: - universal jurisdiction and - the forum of necessity • GC concluded that international law had not imposed an obligation on the Swiss authorities to open their courts with a view to ruling on the merits of MrNaït-Liman’s compensation claim, on the basis of either universal civil jurisdiction in respect of acts of torture or a forum of necessity. It followed that the Swiss authorities had enjoyed a wide margin of appreciation in this area • NO VIOLATION

24. Thank you for your attention!