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The Right of Access to a Court – recent caselaw of ...

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The Right of Access to a Court – recentcaselawof European Court of Human Rights
NikolinaKatić,assistant Government Agent of the ROC before ECHR
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 “universallyrecognizedfundamental principles of law”First it wasdefinedin the caseGolder v UKThe right of access to a court must be “practical andeffective”One of the aspectsoftherightto a fairtrial(Article6oftheConvention)Itisthecorestoneoftheruleoflawandsafeguardfromthearbitrarypower
Whocanclaimrighttoaccessto acourt?
Everyone has the right to have any claim relating to his “civil rights and obligations” brought before a court ortribunalRighttoaccessto acourt=theright to institute proceedings before courts in civilmatters→an individual must “have a clear,practicalopportunity to challenge an act that is an interference with his rights”anyone who considers that an interference with the exercise of one ofhisorher civil rights is unlawful and complains that he or she has not had the possibility ofsubmittingthatclaim to a tribunal meeting the requirements of Article 6 §1
Limitations?
NOT AN ABSOLUTE RIGHTmay be subjecttolimitations, but these must not restrict or reduce the access left to the individual in such a way ortosuchan extent that the very essence of the right isimpairedconditions of admissibility of an appeal-the states enjoy margin of appreciationlimitationwillnot be compatiblewithArticle6 § 1if it does not pursue alegitimate aimand if there is not a reasonable relationshipofproportionalitybetween the means employed and the aim sought to beachievedFormal steps required and time-limitations are not considered to be contrarytorequirementsofArticle6oftheConvention→ensuringtheproperadministrationof justice and compliance, in particular, with the principle of legal certainty
Obligationsofdomesticcourts
Inapplyingtheproceduralrules, the courts mustavoidbothexcessive formalismthat would impair the fairnessoftheproceedings andexcessive flexibilitysuch as would render nugatory theproceduralrequirementslaid down in statutesshouldtake sufficient account of theparticularcircumstancesof the case and not apply the relevant rules and case-law toorigidly–deciding upon the circumstances of „each particular case”Strike afair balancebetweentheinterests of the authorities and of the persons concerned, in particular by affording thepartiesaclear, practical and effective opportunity to challenge the decisions
Buvačv Croatia
FACTSThe applicant filed a suit against the newspaper publisherseekingcorrectionoftheinformationpublishedintheprintedversionofthepaperHissuitwasdissmisedwithoutdecidingonthesubjectmatterofthecasebythecourtoffirstinstanceThefirstinstancecourtdeemedthattheapplicanttookwrongproceduralsteps– heshouldhavehadfirstlyaddressthenewspperpublisherwiththesamerequestandthenfile a civilsuitDECIOSON OF THE ECHRViolation of 6§1 of the Convention – access to a court- excessive formalismofthedomesticcourts
Access totheSupremeCourt
the conditions of admissibility of an appeal on pointsoflawmay quite legitimately be stricter than for an ordinaryappealZubac v. CroatiaGiven the special nature oftheSupremeCourt’srole, the procedure followed in the Court of Cassation may be moreformal,especiallywhere the proceedings before it follow the hearing of the case by a first-instancecourtandthen a court of appeal, each with full jurisdictionTrevisanatovItaly
RecentcaselawoftheECHR
Zubac v. Croatia (GC)TrevisanatovItalyRamos Nunes de Carvalho e Sá v.Portugal(GC)Kamenova v.BulgariaNaït-Liman v.Switzerland(GC)
Zubac v Croatia
FACTSThe applicantconcludeda contract for the exchange of his house in Dubrovnik (the Republic of Croatia) for one inTrebinje(RepublikaSrpska, Bosnia and Herzegovina)Afterhebrougta civil actionseeking to declare the contract null and void on the basis that it hadbeensignedunder duress, owing to circumstances arising from the war inCroatia– setthevalueofthedisputeat 10.000 HRKInthelaterstageoftheproceedingsraisedthevalueofthedisputeto 105.000,00 HRKFirstandsecondinstancecourtrejectedtheapplicant’sclaim–filedanappealonpointsoflawtotheSupremeCourtthe Supreme Court considered that the relevant value of the claim under consideration was the value stated on the claimdocumentsnottheincresedvalue(eventhoughlowercourtsupheldtheincresedvalueindecision onexpences)
Zubac v Croatia
DECISION OF THEECHR (GC)application of a statutory threshold for making an appeal to theSupremeCourtwas a legitimate andreasonable proceduralrequirementSucha restriction also pursued thelegitimate aimsofobservingthe rule of law and the proper administration ofjustice–theroleoftheSCapplication of the rules concerning the statutory minimumforlodgingan appeal had not disproportionately hinderedMsZubac’sright of access to a court,norgonebeyond theState’s“marginof appreciation”to regulate the rules on access to court and the application of thoserulestheSupreme Court shouldnotbebound by the errors of lower courts when determining the granting ofaccess–thedecisionoftheSCensuredtheproperadministrationofjusticeandcorrectedthemistakemadebylowercourtsNO VIOLATION OF ARTICLE 6 § 1
TrevisanatovItaly
FACTSTheapplicantwasemployedwithIBM for 32yearswhenhewasdismissedMrTrevisanatobrought proceedings against the company IBM before the Milan Employment Tribunal asking it to declare his dismissal null and void or ineffective, and to order hisreinstatementTheclaimwasdissmisedTheapplicantappealedtotheCourtofCassationCourt of Cassation declared the appeal inadmissiblein the absence of an appropriate formulationof the point of law in accordance with Article 366bis of the Code of Civil Procedure. A request for revision was also declared inadmissible
TrevisanatovItaly
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 inensuring the uniform interpretation of thelawlimitation imposed by Article 366bis pursued alegitimate aim, meeting the requirements both of legal certainty and of the proper administration ofjusticeTheinadmissibilitydecisioncould 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’scaseAdditionalytherule applied by the Court of Cassation was not judge-made but had been introduced by thelegislatureNO VIOLATION
Ramos Nunes de Carvalho e Sá v. Portugal
FACTSIn 2010 and 2011 three sets of disciplinary proceedings were brought against the applicant, who was a judgeatthecourtoffirstinstance(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 ofproceedings
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 proprietyTheapplicantappealedagainstthedecisionstotheSupremeCourtJudicial Division of the Supreme Court unanimously dismissed the threeappealsSuspededfor 100days,therestofthepenaltybecametimebarred
Ramos Nunes de Carvalho e Sá v. Portugal
DECISION OF THE ECHRThe applicantcomplaintaboutthelackofpublichearinginthestageoftheproceedingsbeforetheSCformingtheviolationofaccesstothecourtinArticle6§1IstheJudicialDiviosonoftheSCinthiscase„acourt”withinthemeaningofArticle6-1?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 ofjudgesWhen 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
Ramos Nunes de Carvalho e Sá v. Portugal
ProceedingsbeforeCSMwasonlyinwriting,theyhadheardnowitnesses, applicantdidnotpresentherdefenceinoral-The Court therefore considered that the CSM had not exercised its discretionary powers on an adequate factualbasisThe Court ruledNO VIOLATIONof the Convention in connection to the applicant’s objection of thelack of impartiality– thepureabstractriskthatjudgesdecidingontheapplicant’scasecouldbeintheapplicant’spositionandthereforebeimpartialcannotcastdoubtonthe(lack)ofimpartialitythelack of a hearingeither 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 theConvention-VIOLATION
Kamenova vBulgaria
FACTSIn 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.In2001, after his conviction had been quashed and the case remitted for a fresh examination, the applicant filed her compensation claim.In2006 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 CriminalProcedureLater 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
Kamenova vBulgaria
DECISION OF THE ECHRPrinciple: theapplication ofstatutorylimitation periods had to be foreseeable for the claimants, having regard to the relevant legislation, case-law and the particularcircumstancesThe 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 declaredinadmissibleThe applicant had not presented any explanation as for why she had failed to put forward her claim
Kamenova vBulgaria
Theriskofhavingherclaimdeclaredtime-barredwasontheapplicantItcould 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 acourtNO VIOLATION
Naït-Liman v.Switzerland
FACTSTheapplicantwas 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 StatesecurityHe was then taken to Tunis by Tunisianagents–theapplicantclaimedhewastorturedinTunisiafled Tunisia in 1993 for Switzerland, where he applied for political asylum; this was granted in1995In 2001theapplicantlearnedthatthemanwhotorturedhimwasinoneofthehospitalsinSwitzerland– hefiledacriminalcomplaintandappliedtojointheproceedingsas a civil party
Naït-Liman v.Switzerland
the principal public prosecutor discontinued the proceedings on the grounds that A.K.(personaccusedbytheapplicant)had left Switzerland and that the police had been unable to arresthimIn 2004the applicant lodged a claim fordamagesagainst Tunisia and againstA.KbeforethecourtinGenevathe claimwasdeclairedinadmissibleon 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,SwitzerlandAllappealsweredissmissed
Naït-Liman v.Switzerland
DECISION OF THE ECHR (GC)TheGC heldthat 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,recognizedunder SwisslawRestriction 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 ajudgmentproportionality 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
Naït-Liman v.Switzerland
The Court identified two concepts of international law that were relevant for the present case:-universaljurisdiction and-theforum ofnecessityGCconcludedthat international law had not imposed an obligation on the Swiss authorities to open their courts with a view to ruling on the merits ofMrNaït-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 thisareaNO VIOLATION
Thank youfor your attention!

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The Right of Access to a Court – recent caselaw of ...