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FIRST
SECTION
CASE OF
MARANGOS v. CYPRUS
(Application
no. 12846/05)
JUDGMENT
STRASBOURG
4 December
2008
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 Stavros Marangos v. Cyprus,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
Takis
Eliades, ad
hoc judge,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 13 November 2008,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 12846/05) against the Republic
of Cyprus lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Cypriot national, Mr Stavros Marangos (“the
applicant”), on 15 March 2005.
- The
applicant, who had been granted legal aid, was represented by Mr S.
Drakos, a lawyer practising in Nicosia. The Cypriot Government (“the
Government”) were represented by their Agent, Mr P. Clerides,
Attorney-General of the Republic of Cyprus.
- The
applicant alleged, in particular, that he had been denied access to
court due to the lack of legal aid.
- By
a decision of 17 March 2006, the Court gave notice of the complaint
concerning Article 6 of the Convention to the Government. It also
decided, under Article 29 § 3 of the Convention, to examine the
merits of the application at the same time as its admissibility.
- Mr G. Nicolaou, the judge elected in respect of Cyprus,
withdrew from sitting in the case (Rule 28 of the Rules of Court).
The Government accordingly appointed T. Eliades to sit as an ad
hoc judge (Rule 29).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1959 and lives in Nicosia. He is currently
employed on a temporary basis at the Statistical Service of the
Republic of Cyprus.
- On
3 July and 9 August 2000 he made two applications for appointment in
different sections of the civil service. On 10 July 2001 and 11
September 2001 both of his applications were refused by the Civil
Service Commission on the ground that he had not performed his
military service or been legally exempted from it.
- On
21 September 2001 the applicant lodged a judicial review application
before the Supreme Court challenging the relevant decisions of the
Civil Service Commission. He contended, inter alia, that he
had refused to perform his military service with the Cypriot National
Guard as he was a homosexual and that for the determination of his
sexual orientation he would have been subjected to degrading
treatment contrary to Article 3 and 8 of the Convention.
- In
its interim decision of 24 February 2003 the court rejected an
application for amendment of the applicant's pleadings. It noted that
whether or not the applicant was entitled to be exempted from
military service was not a contested issue in the pending proceedings
and, as such, could not be examined. The issue under dispute in the
proceedings before the court was the lawfulness of the decision by
the Civil Service Commission dismissing the applicant's application
for lack of fulfilment of the requirement of completion of military
service.
- On
17 October 2003 the Supreme Court rejected the judicial review
application and made an order for costs against the applicant. It
justified the rejection by referring to the reasons set out in its
previous interim decision and, in particular, that the applicant did
not meet one of the basic requirements for appointment to the Civil
Service.
- On
28 November 2003, the applicant lodged an appeal before the Supreme
Court against its first-instance judgment. The grounds of appeal had
been drafted by the applicant's representative. On 30 July 2004 the
applicant filed his skeleton argument which had also been prepared by
his representative. The appeal was set for a hearing on 9 October
2006.
- Until
that stage of the proceedings, the applicant was being represented by
a lawyer of his choice, but due to his inability to settle
outstanding legal fees he had to stop receiving legal assistance from
his lawyer.
- On
2 August 2004 he filed an application for legal aid claiming that the
proceedings concerned the protection of his human rights and thus
fell within the scope of proceedings for which the grant of legal aid
was envisaged by the Legal Aid Law 165 (I) of 2002.
- On
4 October 2004, his application for legal aid was rejected by the
Supreme Court, acting in a panel of five judges, which referred to
the relevant provisions of the Legal Aid Law and explained that 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 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.
- On
3 November 2006 the Supreme Court dismissed the applicant's appeal.
The court referred to the arguments developed by the applicant's
lawyer in the proceedings. It found that the issue of
unconstitutionality had not been raised by the applicant's lawyer in
accordance with the requirements set out in the relevant procedural
provisions and case-law given that it had only been set out in a
vague and imprecise manner in the application seeking judicial
review. The court further took into account the points raised by the
applicant's lawyer in his written address to the Court. It found that
the vague suggestions made concerning unconstitutionality had no
legal foundation and were irrelevant to the subject-matter of the
judicial review application. No other ground for annulment of the
relevant decision had been raised or shown.
II. RELEVANT DOMESTIC LAW
- Article
146 of the Constitution of the Republic of Cyprus provides as
follows:
“1. The Supreme
Constitutional Court shall have exclusive jurisdiction to adjudicate
finally on a recourse made to it on a complaint that a decision, an
act or omission of any organ, authority or person, exercising any
executive or administrative authority is contrary to any of the
provisions of this Constitution or of any law or is made in excess or
in abuse of powers vested in such organ or authority or person.
2. Such a recourse may be made by
a person whose any existing legitimate interest, which he has either
as a person or by virtue of being a member of a Community, is
adversely and directly affected by such decision or act or omission.
3. Such a recourse shall be made
within seventy-five days of the date when the decision or act was
published or, if not published and in the case of an omission, when
it came to the knowledge of the person making the recourse.
4. Upon such a recourse the Court
may, by its decision-
(a) confirm, either in whole or in
part, such decision or act or omission; or
(b) declare, either in whole or in
part, such decision or act to be null and void and of no effect
whatsoever, or
(c) declare that such omission, either in whole or in
part, ought not to have been made and that whatever has been omitted
should have been performed.
5. Any decision given under paragraph 4 of this Article
shall be binding on all courts and all organs or authorities in the
Republic and shall be given effect to and acted upon by the organ or
authority or person concerned.
6. Any person aggrieved by any decision or act declared
to be void under paragraph 4 of this Article or by any omission
declared there under that it ought not to have been made shall be
entitled, if his claim is not met to his satisfaction by the organ,
authority or person concerned, to institute legal proceedings in a
court for the recovery of damages or for being granted other remedy
and to recover just and equitable damages to be assessed by the court
or to be granted such other just and equitable remedy as such court
is empowered to grant.”
- Law
165 (I) of 2002 on Legal Aid provides, in so far as relevant, as
follows:
“3. Legal aid shall be granted free of charge in
the proceedings provided for in sections 4, 5 and 6 below, to the
extent and under the conditions laid down therein.
4.- (1) This section applies-
(a) In criminal proceedings before a court, against any
person, for an offence that he may have committed in violation of any
legislative provision, for which an imprisonment sentence exceeding
one year is provided for and includes preliminary interrogation and
every other stage of interrogation or other procedure taking place
before the commencement of subsequent criminal proceedings that
relate to it;
(b) Except for the criminal proceedings provided for in
paragraph (b) of subsection (1) of section 5 below, in any other
proceedings before a court exercising its criminal jurisdiction.
(2) For the purposes of the application of this section,
the term “court” means the District Court, Assize Court,
Military Court and includes the Supreme Court, when examining any
issue raised in criminal proceedings, in exercising its first- or
second-instance jurisdiction.
(3) In the proceedings provided for in subsection (1)
above, legal aid will be granted free of charge, and will include
advice, assistance and representation.
5. (1) For the purposes of the application of this
section, the term “proceedings for determined violations of
human rights” means any:
(a) Civil proceedings before a court, at any stage,
lodged against the Republic for damages sustained by a person due to
determined violations of human rights; or
(b) Criminal proceedings lodged by any person where the
offence in examination concerns determined violations of human
rights.
(2) Legal aid will be granted, free of charge, to
proceedings concerning determined violations of human rights.
(3) Legal aid granted by virtue of this section:
(a) In the case of civil proceedings lodged in the
Republic or criminal proceedings, will include advice, assistance and
representation; and
(b) In civil proceedings lodged outside the Republic,
will include only advice.
(4) The Ministerial Council may, by an order published
in the Official Gazette of the Republic, amend the Table.
6. (1) For the purposes of this section, the term
“proceedings before a family court” means:
(a) Proceedings raised in respect of family relations on
the basis of provision of bilateral or multilateral treaties to which
the Republic has acceded; or
(b) Proceedings concerning parental care, alimony,
recognition of a child, adoption, proprietary relations of spouses
and any other marital or family dispute.
(2) Free legal aid is provided for in proceedings before
a family court, and includes advice, assistance and representation.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the denial of legal aid deprived him of a
fair trial within the meaning of Article 6 § 1 of the
Convention, which provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
- The
Government contested that argument.
A. Admissibility
1. The parties' submissions
- The
Government maintained that the applicant had not exhausted all
effective domestic remedies as required by Article 35 § 1 of the
Convention which states:
“The Court may only deal with the matter after all
domestic remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken.”
- They
maintained that the applicant could have filed an appeal against the
Supreme Court's judgment of 4 October 2004 but failed to do so. They
argued that the Supreme Court, in examining the legal aid
application, albeit in a panel of five judges, was in fact exercising
its first-instance jurisdiction. The applicant could have filed an
appeal against that decision, which could have been determined by the
Supreme Court composed of at least five other judges exercising the
Supreme Court's appellate jurisdiction. They therefore invited the
Court to declare the application inadmissible for non-exhaustion of
the available domestic remedies.
- The
applicant maintained, in reply, that the course of action proposed by
the Government was erroneous as no appeal lies under the domestic
legal order against a decision of five judges of the Supreme Court.
He stated that the Government had referred to an unknown and
hypothetical procedure which was contradicted by the relevant
judgment of the Supreme Court itself, which stated clearly on its
first page that it was adopted by its secondary jurisdiction, from
which no appeal lies. The applicant explained that on this occasion
the Supreme Court had exercised its functions on a first- and
second-instance jurisdiction simultaneously, as was common practice
in Cyprus. Hence, he invited the Court to dismiss the Government's
objection.
2. The Court's assessment
- The
Court is mindful that the principle that an applicant must first make
use of the remedies provided by the national legal system before
applying to the European Court is an important aspect of the
machinery of protection established by the Convention (see Akdivar
and Others v. Turkey, 16 September 1996, § 65, Reports
1996-IV). The European Court of Human Rights is intended to be
subsidiary to the national systems safeguarding human rights (ibid.,
§§ 65-66) and it is appropriate that the national courts
should initially have the opportunity to determine questions of the
compatibility of domestic law with the Convention and that, if an
application is nonetheless subsequently brought to Strasbourg, the
European Court should have the benefit of the views of the national
courts, as they are in direct and continuous contact with the forces
of their countries. Moreover, it considers that it is the domestic
courts which are in a position to interpret the relevant requirements
of the domestic legislation and procedures.
- However,
the Court takes note that the Supreme Court's judgment explicitly
specified that it was acting at a second-instance level, which makes
it clear, for the purposes of the relevant national law, that the
Supreme Court had acted as a court of final instance adopting a
decision which was not subject to any appeal. Moreover, the
Government have failed to provide the Court with any domestic
case-law showing that the course of action that they referred to had
been, in fact, possible under the relevant domestic procedure.
- The Court therefore rejects the Government's objection
on grounds of non-exhaustion of domestic remedies. Moreover, no other
ground for declaring it inadmissible has been established. It
therefore declares the application admissible.
B. Merits
1. The parties' submissions
(a) The Government
- The
Government maintained that the Supreme Court had rightly dismissed
the applicant's legal aid request since legal aid was not available
under the domestic law for administrative proceedings. They submitted
that Article 6 § 1 did not place an obligation to provide legal
aid for every dispute relating to a “civil right”. The
issue to be determined in the present case was whether the lack of
legal aid deprived the applicant of a fair trial and breached his
right to present his case effectively in the appeal proceedings he
had lodged. However, none of the factors set out in the Court's
relevant case-law were applicable in the present circumstances, where
the lack of legal aid did not operate to deprive the applicant of a
fair trial.
- The
applicant had had legal representation throughout the first-instance
proceedings. He had applied for legal aid for the first time only
after the filing of his appeal, at a stage where the only remaining
steps were the filing of the skeleton argument of his address to the
court and the hearing. His notice of appeal and his written skeleton
argument had already been prepared by his lawyer who had appeared
before the Supreme Court at the pre-trial stage of the appeal
proceedings. The domestic law did not require representation by
counsel in appeal proceedings and, therefore, the applicant could
appear at the hearing of his case in person. The hearing would be
restricted to the grounds set out in the notice of appeal and in the
written skeleton argument that had been prepared by the applicant's
counsel. The appeal procedure concerning the hearing was not
difficult to follow and the applicant was a well-educated person
perfectly capable of comprehending the procedure and formulating
arguments when addressing the court at the hearing. Moreover, the
case was not complex as it did not involve disputed facts, witnesses
or questions of admissibility or evaluation of evidence. The subject
matter of the judicial review application was the legality of the
decision of the administrative authorities to refuse the applicant's
application for appointment to the public service on the ground that
he had neither completed nor been discharged from his military
obligations: a fact that was not disputed by the applicant.
- Judicial
review proceedings under Article 146 of the Constitution did not
usually require the appearance of witnesses; the procedure was simple
and entailed the filing of an application and opposition followed by
written addresses and oral clarifications. All material concerning
the first-instance proceedings had been placed before the appellate
court, which was to determine whether the first-instance judgment was
wrong on the grounds alleged in the applicant's notice of appeal and
expounded in his written outline prepared by counsel. Hence, the lack
of legal aid did not, in the present circumstances, infringe the very
essence of the applicant's right of access to court.
- In
not providing for legal aid in respect of judicial review actions
challenging administrative decisions the law intended to achieve the
legitimate aim that the provision of public funds be prioritised so
as to ensure its availability in proceedings in which an applicant
was most likely to be in need of legal representation. Because of the
nature of such proceedings, the court could examine certain matters
ex officio, such as the legality and competence of the
administrative authority to take the impugned decision. The court
furthermore could, at any stage of the proceedings, order the
production of any documentary or other evidence which it considered
relevant for the proper exercise of its jurisdiction. In addition,
the lack of legal aid in administrative judicial proceedings was
counterbalanced by low legal fees, which ensured effective access to
court.
(b) The applicant
- The
applicant agreed with the Government that the relevant test according
to the Court's case-law was whether provision by the State of
assistance of a lawyer was indispensible for effective access to
court because of the complexity of the procedure or of the case. He
stated, however, that in fact the administrative proceedings had been
complex, as had the merits of his case. Although he was educated, he
was not familiar with court proceedings and had never represented
himself in any court of law.
- The
fact that the Government had limited financial resources could not be
a permissible reason for restriction of the applicant's right of
access to court. Given the fact that the applicant had had to meet
the costs of his lawyers and, in the eventuality that he lost his
case, also the costs of the Attorney General's Office, meant in
reality that without legal aid he had been deprived of effective
access to court.
2. The Court's assessment
- The
Court reiterates that the Convention is intended to guarantee
practical and effective rights. This is particularly so of the right
of access to a court in view of the prominent place held in a
democratic society by the right to a fair trial (see Airey v.
Ireland, 9 October 1979, § 24, Series A no. 32).
It is central to the concept of a fair trial, in civil as in criminal
proceedings, that a litigant is not denied the opportunity to present
his or her case effectively before the court and that he or she is
able to enjoy equality of arms with the opposing side (see, among
many other authorities, De Haes and Gijsels v. Belgium, 24
February 1997, § 53, Reports of Judgments and Decisions
1997-I).
- The right of access to a court is not, however,
absolute and may be subject to restrictions, provided that these
pursue a legitimate aim and a reasonable relationship of
proportionality exists between the means employed and the aim sought
to be achieved (see Ashingdane v. the United Kingdom, 28 May
1985, § 57, Series A no. 93). It may, therefore, be acceptable
to impose conditions on the grant of legal aid based, inter alia,
on the financial situation of the litigant or his or her prospects of
success in the proceedings (see Munro v. the United
Kingdom, no. 10594/83, Commission decision of 14 July 1987,
DR 52). In this respect, the Contracting States enjoy a certain
margin of appreciation, although the final decision as to the
observance of the Convention's requirements rests with the Court. It
must be satisfied that the limitations applied do not restrict or
reduce the access left to the individual in such a way or to such an
extent that the very essence of the right is impaired.
- Article
6 § 1 leaves to the State a free choice of the means to be used
in guaranteeing litigants the above rights. The institution of a
legal aid scheme constitutes one of those means but there are others,
such as for example simplifying the applicable procedure (see Airey,
cited above, § 26, and McVicar v. the United Kingdom,
no. 46311/99, § 50, ECHR 2002 III).
- The
question whether the provision of legal aid is necessary for a fair
hearing must be determined on the basis of the particular facts and
circumstances of each case and will depend, inter alia,
upon the importance of what is at stake for the applicant in the
proceedings, the complexity of the relevant law and procedure and the
applicant's capacity to represent him or herself effectively (see
Airey, § 26; McVicar, §§ 48 and
50; P., C. and S. v. the United Kingdom, no. 56547/00, §
91, ECHR 2002-VI; and also Munro, cited above).
- Moreover,
it is not incumbent on the State to seek through the use of public
funds to ensure total equality of arms between the assisted person
and the opposing party, as long as each side is afforded a reasonable
opportunity to present his or her case under conditions that do not
place him or her at a substantial disadvantage vis-à-vis
the adversary (see De Haes and Gijsels, § 53, and also
McVicar, §§ 51 and 62, both cited above).
- The
Court must examine the facts of the present case with reference to
the above criteria.
- The
Court notes firstly that the applicant was represented at the
first-instance proceedings by the representative of his choice, who
continued to represent him at the initial stages of the proceedings
on appeal. The applicant's representative had, in fact, drafted the
applicant's grounds of appeal and skeleton argument for his address
before the appellate court. The latter contained the only issues
pending for determination before that court. The Court also takes
note of the fact that the applicant was entitled to appear in person
before the Supreme Court and could address the court on the basis of
the skeleton argument which had already been drafted by his
representative.
- Lastly,
the Court considers that the applicant has failed to point to any
particular detriment he had suffered as a result of not being
represented at the hearing of his appeal or at any subsequent stage
of the appeal proceedings. It further notes that the Supreme Court
referred extensively to the arguments raised by the applicant's
lawyer at an earlier stage of the proceedings before proceeding to
dismiss the appeal.
- In
view of these considerations, the Court concludes that in the present
circumstances the applicant was indeed afforded reasonable
opportunity to present his case and, as such, had not been deprived
of the essence of his right of access to a court.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention;
Done in English, and notified in writing on 4 December 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Judge
Malinverni, joined by Judges Kovler and Spielmann is annexed to this
judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE MALINVERNI, JOINED BY JUDGES
KOVLER AND SPIELMANN
(Translation)
- 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).
- 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.
- 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).
- The
same argument was put forward by the Government in their memorial to
the Court, in which they stated that: “the 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
