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THIRD
SECTION
CASE OF
POPIVČÁK v. SLOVAKIA
(Application
no. 13665/07)
JUDGMENT
STRASBOURG
6
December 2011
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 Popivčák
v. Slovakia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Egbert
Myjer,
Ján Šikuta,
Ineta
Ziemele,
Nona Tsotsoria,
Kristina Pardalos,
judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 13665/07)
against the Slovak Republic lodged with the Court under
Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Slovak national, Mr Peter Popivčák (“the
applicant”), on 9 March 2007.
- The
applicant was represented by Mr T. Šafárik, a lawyer
practising in Košice. The Government of the Slovak
Republic (“the Government”) were represented by their
Agent, Ms M. Pirošíková.
3. The
applicant alleged, in particular, that he had not been provided with
access to a court, in violation of his rights under Article 6 §
1 of the Convention, to bring a claim for damages in connection with
undisputed malpractice by his lawyer.
- On
23 June 2010 the Court
decided to give notice of the above mentioned part of the
application to the Government. It was also decided
to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1950 and lives in Košice.
He is a self employed entrepreneur.
- In
his capacity as an entrepreneur, the applicant received a subsidy
for the creation of a number of positions of employment deemed
“socially desirable”. The subsidy was paid to him on
terms specified in a contract with the District Employment
Office (Okresný úrad práce).
A. Proceedings concerning the subsidy
- In a decision of 28 November 1996 the Košice I.
District Tax Authority (Daňový úrad) found
that the applicant had breached the above mentioned contract by
failing to fill all the positions. The applicant was therefore
ordered to return 430,000 Slovakia korunas (SKK) of the subsidy and
to pay SKK 860,000 by way of a financial penalty.
- The
period for appealing against the decision was fifteen days from the
date of service.
- The
written version of the decision was sent to the applicant through the
postal service, to be served on him in person (do vlastných
rúk).
However,
after repeated attempts to do so had proved unsuccessful the decision
was deposited with the local post office and a notice was left in the
applicant’s mailbox to the effect that he could collect the
decision there within three days.
Should
the applicant not collect the decision within that period, as proved
to be the case, it was to be deemed to have been served on him by
force of a legal presumption on the date of expiry of the
period.
- The
question of when the decision of 28 November 1996 became final and
binding (právoplatnosť) was not subject to full
administrative or judicial examination. However, the authorities took
the view that it had become final and binding on 23 December
1996, by operation of the presumption mentioned in the preceding
paragraph. At that time the applicant had no legal representation.
B. Legal assistance
- Under a legal-assistance contract of 1 October 1997,
the applicant retained the services of a lawyer to provide him with
general legal assistance, including representation in litigation.
- Being
a member of the Slovakian Bar Association, the lawyer was under a
duty conscientiously to defend her clients’ rights and
diligently to apply all legal means available for the assertion
of their interests and to have taken out and to maintain
professional liability insurance (see paragraphs 40 and 42 below).
- On
26 January 1998 the applicant paid a visit to the District Tax
Authority, accompanied by his lawyer. It was on this occasion that
the applicant obtained the decision of 28 November 1996 (see
paragraph 7 above) by collecting it from the Tax Authority in person.
- On 18 August 1998, through his lawyer, the applicant
challenged the decision of 28 November 1996 by way of an
administrative law action (see paragraph 47 below).
- Simultaneously, also through the lawyer, the applicant
requested an extraordinary review of the impugned decision by
the Central Tax Directorate (Ústredné daňové
riaditeľstvo) outside the framework of appellate proceedings
(see paragraph 51 below). In his request, the applicant argued, inter
alia, that he had in fact complied with the terms on which he had
been provided with the subsidy.
- On
30 September 1998 the Central Tax Directorate modified the decision
of 28 November 1996 in that it reduced the amount of the subsidy to
be repaid to SKK 180,000 and the penalty payment to SKK 360,000. In
the proceedings leading up to that decision the applicant’s
lawyer officially acted as his legal representative. Although it was
open to her, the lawyer filed no administrative appeal against it on
the applicant’s behalf.
- The
District Tax Authority subsequently relieved the applicant of the
duty to pay any more than SKK 160,000 in penalties.
- On 10 November 1998 the Košice Regional Court
(Krajský súd) declared the applicant’s
administrative-law action (see paragraph 14 above) inadmissible and
discontinued the proceedings. In the proceedings leading up to that
decision the applicant’s lawyer officially acted as his legal
representative.
- The
Regional Court found that the applicant had failed to fulfil the
statutory admissibility requirement of exhausting ordinary remedies
by lodging an administrative appeal (see paragraphs 48 and 50 below)
and, as appropriate, by challenging the decision on the
administrative appeal by way of a fresh administrative law
action (see paragraph 47 below).
- In
so far as there might have been any misgivings as to the way in which
the impugned decision had been served on the applicant and,
consequently, as to when the period for lodging an administrative
appeal had expired, the Regional Court held:
“The court dealing with the action of 18 August
1998 cannot examine whether the defendant served the impugned
decision [on the applicant] in accordance with Article 24 of the
Code of Administrative Procedure. This question may be examined only
by the appellate administrative agency, in the context of
an [administrative] appeal against the decision of the
defendant.
...
Should the [applicant] have been of the opinion that the
decision by the defendant was not served on him through the postal
service in accordance with Article 24 of the Code of Administrative
Procedure, it was open to him to challenge that decision by means of
an [administrative] appeal within the period for appealing,
namely fifteen days from the collection of that decision in person
from the defendant on 26 January 1998. The question whether the
decision by the defendant was served on the applicant in accordance
with Article 24 of the Code of Administrative Procedure and, as the
case may be, whether the [applicant] lodged his [administrative]
appeal against the decision by the defendant within the statutory
time-limit would have to be resolved by the administrative agency
dealing with the appellate proceedings. Upon receipt of the decision
of the appellate administrative agency on his appeal, it was open to
the [applicant] to proceed as indicated above.”
C. Legal malpractice action
- On
12 July 2000 the applicant lodged a civil action against the lawyer
with the Košice I District Court (Okresný súd).
He alleged that the lawyer had breached her duty of care by failing
to use all remedies, in particular administrative appeals against the
decisions of 28 November 1996 and 30 September 1998, followed –
as the case may be - by administrative law actions.
- The applicant argued, inter alia, that, in a
judgment of 20 February 1997 in an unrelated but similar case the
Supreme Court (Najvyšší súd) had
found for the plaintiff and had quashed the impugned decisions of the
tax authorities.
- The
applicant sought an order for payment of SKK 540,000 in damages. This
sum represented the total amount that he had to pay back to the tax
authorities. In the course of the proceedings the applicant reduced
his claim by SKK 200,000.
- On 16 April 2004 the District Court dismissed the
action and ordered the applicant to pay the defendant’s costs.
- Referring
to the Regional Court’s decision of 10 November 1998 (see
paragraph 18 above), the District Court observed that the applicant’s
lawyer had not lodged an administrative appeal against the decision
of 28 November 1996 (see paragraph 7 above) and that,
consequently, the Regional Court had no jurisdiction to deal with the
applicant’s administrative-law action.
- The
District Court also noted that the applicant’s lawyer could
have challenged the decision of 30 September 1998 by means of
an administrative appeal, but had not done so.
- The
District Court concluded that the lawyer had indeed breached her
professional duties in that she had failed to use all available legal
means for the protection of the applicant’s interests.
- However,
no causal link could be established between that breach and the
applicant’s loss since it was unknown how the case would have
proceeded on the merits had all the ordinary remedies been applied.
An
administrative appeal against the decision of 28 November 1996 fell
to be determined by the Central Tax Directorate. An
administrative-law action against the decision of 30 September
1998 fell to be determined by the Supreme Court sitting as
an administrative tribunal. Relying on Article 135 § 2 of
the Code of Civil Procedure, the District Court concluded that the
ordinary courts had no jurisdiction to take the place of these bodies
and to pre-empt the outcome of the proceedings before them.
- On 28 June 2005 the Regional Court upheld the judgment
following the hearing of an appeal by the applicant. The Regional
Court observed that the ordinary courts held no power of review as
regards the substantive aspect of administrative decisions. It held
that, similarly, the ordinary courts could not be a substitute for
administrative agencies and tribunals by determining matters of
substance within the latter’s jurisdiction.
- The
Regional Court denied leave to appeal on points of law on the grounds
that no issue of particular legal significance was involved and that
the matter was the subject of well-established case-law, although
this was not referred to in any detail.
D. Constitutional complaint and public prosecution
service review
- On
21 April 2006 the applicant lodged a complaint under Article 127 of
the Constitution (see paragraph 37 below) with the Constitutional
Court (Ústavný súd). He argued that the
dismissal of his action for damages had violated his rights of access
to a court under Article 6 § 1 of the Convention and to judicial
or other legal protection under Article 46 § 1 of the
Constitution (see paragraph 36 below).
- On
4 May 2006 the Constitutional Court declared the complaint
inadmissible. The decision was served on the applicant on 22
September 2006.
- The
Constitutional Court was of the view that the outcome of the
applicant’s action for damages hinged on a point of law that
fell under the jurisdiction of the ordinary courts and had already
been decided there. The ordinary courts, in particular the Regional
Court, had supported the decision with exhaustive, relevant and
sufficient reasoning. There was no appearance of any constitutionally
relevant arbitrariness or irregularity and the applicant’s
complaint was accordingly manifestly ill-founded.
- The
applicant requested the Prosecutor General to exercise his
discretionary powers to challenge the judgment of 28 June 2005 on the
applicant’s behalf by way of an extraordinary appeal on points
of law on similar grounds to those raised in the applicant’s
constitutional complaint.
- In
a letter of 2 October 2006 the public prosecution service informed
the applicant that it fully endorsed the ordinary court’s
reasoning and consequently, his request was dismissed.
II. RELEVANT DOMESTIC LAW
A. Constitution (Constitutional Law no. 460/1992 Coll.,
as amended)
- The “right to judicial and other legal
protection” is laid down in Section (Oddiel) Seven of
Part (Hlava) Two, dealing with “basic rights and
freedoms”. The relevant part of Article 46 provides as follows:
“1. Everyone shall be able to assert
his or her rights in a procedure provided for by a statute before an
independent and impartial court of law and, in cases defined by
a statute, before another organ of the Slovak Republic.
...
4. Conditions and details of judicial and
other legal protection shall be provided for by a statute.”
- Article 127 provides:
“1. The Constitutional Court shall
decide on complaints by natural or legal persons alleging a violation
of their fundamental rights or freedoms ... unless the protection of
such rights and freedoms falls within the jurisdiction of a different
court.
2. If the Constitutional Court finds a
complaint justified, it shall deliver a decision stating that a
person’s rights or freedoms as set out in paragraph 1 have been
violated by a final decision, specific measure or other act and shall
quash such decision, measure or act. If the violation that has been
found is the result of a failure to act, the Constitutional Court may
order [the authority] which has violated the rights or freedoms to
take the necessary action. At the same time it may remit the case to
the authority concerned for further proceedings, order such authority
to refrain from violating the fundamental rights and freedoms ... or,
where appropriate, order those who have violated the rights or
freedoms set out in paragraph 1 to restore the situation to that
existing prior to the violation.
3. In its decision on a complaint the
Constitutional Court may grant appropriate financial compensation to
the person whose rights under paragraph 1 have been violated.”
- Article
152 § 4 provides:
“The interpretation and application of
constitutional laws, acts of parliament and other generally binding
statutes must be in accordance with this Constitution.”
B. Civil Code (Law no. 40/1964 Coll., as amended)
- The general rule on liability for damage is laid down
in Article 420, paragraph 1 of which provides:
“Everyone shall be liable for any damage he or she
causes by breach of statutory duty.”
C. 1990 Advocacy Act (Law no. 132/1990 Coll., as then
in force)
- Section 13 reads as follows:
“1. In the exercise of his or her
profession, an advocate is bound to uphold the Constitution, acts of
parliament and regulations issued for their implementation and,
within their boundaries, to follow the client’s instructions.
2. An advocate is bound to protect the rights
and lawful interests of the person he or she represents, to act
conscientiously in doing so, diligently to use all legal means and to
apply what he or she considers useful according to his or her
conscience and the client’s instructions.
3. An advocate is bound to see to it that the
legal assistance rendered is purposeful and economical.”
- The relevant part of section 21 provides:
“1. An advocate is liable to his or her
client for damage that he or she has caused in connection with the
exercise of his or her profession; this liability extends to damage
caused by his or her trainee advocate (koncipient) or
employee.
...
4. An advocate shall be released from
liability under subsection 1 if he or she shows that the damage could
not have been prevented with all efforts that may be expected of him
or her.”
- Under section 22:
“Before the commencement of the exercise of his or
her profession, the advocate is bound to furnish to the Bar a
professional liability insurance policy. This insurance must be valid
throughout the period of the exercise of the advocate’s
profession.”
D. Code of Civil Procedure (Law no. 99/1963 Coll., as
applicable at the relevant time)
- Article 7 defines the jurisdiction of the ordinary
courts. It provides:
“1. Courts in civil proceedings shall
examine and decide upon disputes and other legal matters which stem
from relations under civil law, labour law, family law, commercial
law and economic law, provided that an act of parliament does not
confer jurisdiction on other authorities.
2. Courts in civil proceedings shall also
review the lawfulness of decisions of public administrative
authorities and the lawfulness of decisions, measures and other
actions by public-power authorities, provided that an act of
parliament does not confer jurisdiction on other authorities.
3. Other matters may be examined and decided
upon by courts in civil proceedings if an act of parliament so
provides.”
- Article
135 defines which decisions are binding upon courts in civil
proceedings. It provides:
“1. A court shall be bound by a
decision by the Constitutional Court as to the compatibility of a
statute with the Constitution, an act of parliament or
an international treaty binding upon the Slovak Republic ... A
court shall also be bound by a decision of the
Constitutional Court or the European Court of Human Rights which
concerns a question of fundamental human rights or freedoms.
Moreover, a court shall be bound by a decision of the competent
authorities that a criminal offence, a minor offence or another
administrative offence punishable under special statute has been
committed and by whom, as well as by a decision concerning personal
status, the inception and winding up of a company and the entry of
[information on] registered capital [in the Commercial Register]; a
court shall, however, not be bound by a decision taken in summary
minor-offence proceedings (blokové konanie).
2. Other than that, questions falling to be
decided by other authorities may be decided upon by a court directly.
However, should such a question have been decided upon by the
competent authority, the civil court shall adopt its decision
(vychádza z neho).”
- Under Article 228 § 1 (d), civil proceedings can
be reopened where the Court has found a violation of the requesting
party’s Convention rights and where serious consequences of the
violation have not been adequately redressed by the award of just
satisfaction.
- In the new decision in a reopened matter, the court
determines issues relating to the reimbursement of the costs that the
parties incurred both in the original and in the reopened proceedings
(Article 235 § 3).
- Chapter (Časť) 5 governs the
administrative judiciary. In accordance with its provisions,
administrative tribunals review the lawfulness of decisions taken by
public administrative authorities on the basis of administrative-law
actions under Section (Hlava) 2 of that Chapter and
administrative-law appeals under Section 3 of that Chapter.
- Judicial review of administrative decisions and
procedures by way of administrative-law actions under Section 2 of
Chapter 5 necessitates that the matter be resolved by a decision that
has become final and binding (právoplatnosť) upon
the exhaustion of all ordinary remedies (Article 247 § 2).
E. Code of Administrative Procedure (Law no. 71/1967
Coll., as applicable at the relevant time)
- The
possibility of disregarding failure to comply with a time-limit is
laid down in Article 28, the relevant part of which provides:
“1. The administrative authority may
disregard a failure to comply with a time-limit (lehota)
for serious reasons, provided that the party to the proceedings makes
a request to that effect within fifteen days of the day when the
reasons for the failure [to comply with the time-limit] cease to
exist, and that [the party] rectifies the omission within the same
time-limit. The administrative authority may confer suspensive effect
on such a request.
2. Failure to comply with a time-limit cannot
be disregarded after a year has elapsed from the day when the action
should have been taken.”
- An administrative appeal is normally to be lodged
within fifteen days of the day when the decision challenged is served
(Article 54 § 2).
- In the three years after an administrative decision
becomes final and binding, it may be quashed or amended (Article 68 §
1) upon a review by an administrative agency at the nearest level
above the agency that issued the decision, of the higher agency’s
own motion or on an application by a third party (Article 65 §
1).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had been
effectively excluded from any possibility of claiming compensation
from his lawyer in respect of a legal error indisputably
committed by the latter.
The
applicant relied on Article 6 § 1 of the Convention, the
relevant part of which reads as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...”
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government recapitulated the domestic proceedings and relied on the
domestic courts’ decisions in arguing that the applicant had
had the benefit of proceedings compatible with the requirements of
Article 6 § 1 of the Convention in that he had submitted his
claim to the ordinary courts, which had determined it in a manner
consonant with the requirements of that provision. In particular, the
Government submitted that for the applicant’s compensation
claim to be successful it had been imperative for him to establish
the causal link between the breach of his lawyer’s duties and
any pecuniary damage he might have suffered. It had, however, not
been possible to establish what the outcome of the administrative
proceedings would have been had the applicant’s lawyer not
breached her duties. His claim therefore had to be dismissed. In that
connection, the Government pointed out that, even in respect of
claims for compensation of pecuniary damage under the Convention, the
causal link between the violation found and the damage alleged must
be clearly established.
- In
reply, the applicant disagreed and reiterated his complaint. In
particular, he submitted that there was nothing in Article 7 § 2
of the Code of Civil Procedure (see paragraph 43 above) or elsewhere
to serve as a basis for removing from the jurisdiction of the
ordinary courts the question of the existence and extent of the
damage he had suffered and its causal link to his lawyer’s
malpractice. On the contrary, the ordinary courts had to be and in
fact were bestowed with jurisdiction to deal with any question that
was necessary to resolve a claim submitted to them.
- The
Court reiterates that, in accordance with Article 19 of the
Convention, its duty is to ensure the observance of the obligations
undertaken by the Contracting Parties to the Convention. In
particular, it is not its function to deal with errors of fact or law
allegedly committed by a national court, unless and in so far as they
may have infringed rights and freedoms protected by the Convention.
Moreover, while Article 6 of the Convention guarantees the right to a
fair hearing, it does not lay down any rules on the admissibility of
evidence or the way it should be assessed, which are therefore
primarily matters for regulation by national law and the national
court (see Garćia Ruiz v. Spain [GC], no. 30544/96, §
28, ECHR 1999-I, with further references). The Court’s task
under the Convention is to ascertain whether the proceedings as a
whole, including the way in which evidence was taken, were fair (see,
for example, Petrenco v. Moldova, no. 20928/05, § 41, 30
March 2010).
- As
to the present case, the Court observes first of all that it arose in
the context of a claim in tort of a private-law nature against the
background of the applicant’s commercial activities. The crux
of the Article 6 complaint appears to be the domestic court’s
specific decision on the applicant’s claim for damages.
- For
that matter, the Court also observes that the applicant’s claim
for damages was determined at two levels of ordinary jurisdiction,
the decisions of which were ultimately reviewed by the Constitutional
Court. It is in particular noted that the latter found that the
ordinary courts had supported their decisions with exhaustive,
relevant and sufficient reasoning and that there was no appearance of
any arbitrariness or irregularity in their decisions. The ordinary
courts’ conclusions were furthermore fully shared by the Public
Prosecution Service.
- The
Court notes that the domestic courts mainly relied on the provisions
of Article 135 of the Code of Civil Procedure and held that as courts
of ordinary jurisdiction they were not in a position to take the
place of administrative agencies and tribunal, to pre-empt the
outcome of the proceedings before them and to review substantive
aspect of their decisions. The applicant was thus unsuccessful in
establishing any actual damage, which was an essential component of
his claim.
- The
Court considers that these reasons are not manifestly arbitrary,
irregular or otherwise wrong. Moreover, the applicant was represented
by a lawyer throughout the proceedings, the courts held
a hearing and the applicant was provided with ample opportunity
to state his arguments, to challenge the submissions made
by the defendant and to submit any evidence he considered relevant to
the outcome.
- In
addition, the Court finds it of relevance that, with the assistance
of the defendant in the subsidy proceedings, the applicant was
largely successful in that he obtained a reduction of the amount of
the subsidy to be repaid from SKK 430,000 to SKK 180,000 and the
amount of the penalty from SKK 860,000 to SKK 160,000. His subsequent
claim against the lawyer was examined by the courts while neither
Article 6 nor any other provision of the Convention can be
interpreted as guaranteeing the right to a successful outcome of
a private action in law (see Ruiz-Mateos v. Spain no.
12952/87, Commission decision of 6 November 1990, Decisions and
Reports (DR) 67, p. 190).
- In
conclusion, in the light of all the material in its possession, the
Court has found no elements supporting a conclusion that the
applicant’s right of access to a court or any other of his
rights under Article 6 § 1 of the Convention have been
disrespected.
- There
has accordingly been no violation of Article 6 § 1 of the
Convention.
II. THE REMAINING COMPLAINT
- On
the basis of the same facts, the applicant also
complained of a violation of his property rights under Article 1 of
Protocol No. 1.
- This
complaint has, however, not been asserted before the Constitutional
Court. It follows that it must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
FOR THESE REASONS, THE COURT
- Declares unanimously the
complaint under Article 6 § 1 of the Convention admissible and
the remainder of the application inadmissible;
- Holds by five votes to two
that there has been no violation of Article 6 § 1
of the Convention.
Done in English, and notified in writing on 6 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges Myjer
and Šikuta is annexed to this judgment.
J.C.M.
S.Q.
DISSENTING OPINION OF JUDGE ŠIKUTA JOINED
BY JUDGE MYJER
- To
my regret, I am unable to agree with the majority’s conclusion
that there has been no violation of Article 6 of the Convention, for
the following reasons.
- By
way of introduction, I would summarise this case as follows. The
applicant’s lawyer made a professional mistake, which was
recognised by the ordinary courts. As a result of the mistake, the
applicant’s original problem could not be dealt with by the
domestic courts, which would otherwise have had jurisdiction to deal
with it (the administrative judiciary).
Relying
on unequivocal provisions of substantive law concerning professional
liability of lawyers, the applicant then sued his lawyer for damages.
Although
there nominally was a judge to entertain the action, it proved
practically impossible for the action to succeed as it depended on
elements that the judge had no jurisdiction to examine.
- I
have no difficulty in agreeing with the position of the domestic
courts, and indeed the majority of the Chamber, that the right of
access to a court does not imply the right to the successful
outcome of the proceedings. However, as the situation of the
applicant in the present case has shown, there appears to be a total
structural and systemic impossibility for such claims as the one in
the present case even to be argued before Slovakian courts, let alone
to succeed.
- I
respectfully submit, and explain in detail below, that such a
practical obliteration of any compensation claim, be it as a result
of flaws in the interpretation or application of the law or as a
result of the law itself, cannot be in keeping with Article 6 §
1 of the Convention and the rule of law in general.
- For
that matter, it may be useful to reiterate that the right to a fair
hearing, as guaranteed by Article 6 § 1 of the Convention, must
be construed in the light of the principle of the rule of law,
which requires that all litigants should have an effective judicial
remedy enabling them to assert their civil rights (see Běleš
and Others v. the Czech Republic, no. 47273/99, § 49,
ECHR 2002-IX). In this way the right to a fair hearing embodies the
“right to a court”, one aspect of which is the right of
access, that is the right to institute proceedings before courts in
civil matters (see Golder v. the United Kingdom, 21 February
1975, § 36, Series A no. 18; Prince Hans-Adam II of
Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR
2001-VIII; and Roche v. the United Kingdom [GC], no. 32555/96,
§ 116, ECHR 2005-X).
- Thus,
everyone has the right to have any claim relating to his civil rights
and obligations brought before a court or tribunal (see, among many
other authorities, Waite and Kennedy v. Germany [GC], no.
26083/94, § 50, ECHR 1999-I).
- A
restrictive interpretation of the right of access to a court
guaranteed by Article 6 § 1 would not be consonant with the
object and purpose of the provision (see De Cubber v. Belgium,
26 October 1984, § 30, Series A no. 86).
- Furthermore,
a limitation will not be compatible with Article 6 § 1 if it
does not pursue a legitimate aim and if there is not a reasonable
relationship of proportionality between the means employed and the
aim sought to be achieved (see, among many other authorities,
Ashingdane v. the United Kingdom, 28 May 1985, § 57,
Series A no. 93, and Prince Hans-Adam II of Liechtenstein,
cited above, § 44).
- As
far as the present case goes, I would agree with the majority that,
within the Court’s limited power to scrutinise questions of
compliance with domestic law (see, mutatis mutandis, Beyeler v.
Italy [GC], no. 33202/96, § 108, ECHR 2000-I), the
domestic courts’ findings in terms of domestic law are not to
be questioned.
- However,
contrary to the view of the majority, I consider that, even in such a
state of affairs, the Court was required to examine the implications
of the existing legislative situation and its implementation for the
applicant’s rights under Article 6 § 1 of the Convention,
bearing in mind that the Convention is intended to guarantee rights
that are practical and effective (see, for example, Sabeh El Leil
v. France [GC], no. 34869/05, § 50, 29 June 2011).
- In
this context I would emphasise the constitutional importance of legal
assistance from the point of view of effective exercise of the right
of access to a court and indeed from the point of view of the
effective functioning of the broader concept of the rule of law (see,
for example, Airey v. Ireland, 9 October 1979, Series A no.
32). Noting the privileged relationship of confidence between the
lawyer and the client, I consider that the lawyer’s
professional liability is an inherent key feature of that
relationship and indeed of the legal service in a democratic society
governed by the rule of law.
- Applying
the above general premises to the facts of the present case, I hold
the view, unlike the majority, that this is not a fourth-instance
case but rather a case of lack of access to a court in respect of
legal malpractice lawsuits against a lawyer.
At
the same time, I am of the view that this case reflects a general
position in Slovakia and potentially in other Contracting States. It
therefore concerns a structural and systemic problem.
- It
should be reiterated that the applicant’s compensation claim
had a clear basis in substantive law (see, in particular,
paragraphs 39 and 41 of the judgment) and its relevance was
strengthened by the fact that practising lawyers in Slovakia are
bound by statute to take out and maintain professional liability
insurance (see paragraph 42 of the judgment).
- The
claim consisted of three components: (i) the breach of his lawyer’s
duty of care; (ii) the occurrence of damage; and (iii) the existence
of a causal link between the former two components.
- The
first component was established before the ordinary courts and there
has not been any argument to the contrary. Suffice it to recapitulate
that, instead of lodging an administrative appeal against the
decision of 28 November 1996 and, as appropriate, challenging
the decision on the administrative appeal by way of an
administrative-law action, the lawyer lodged an administrative-law
action directly against the decision of 28 November 1996 (see
paragraph 19 of the judgment). It should be added that the lawyer
also failed to challenge the decision of 30 September 1998 by means
of an administrative appeal (see paragraph 26 of the judgment), the
decision on which could then, as appropriate, have been challenged by
way of an administrative-law action.
- The
second and third substantive elements of the applicant’s claim
have proven more problematic. In particular, it was necessary for the
applicant to establish the existence and extent of the damage
suffered by him and the causal link between this damage and the
breach of duties by his lawyer. In view of their nature, these
elements were interlinked and depended on the hypothetical outcome of
the administrative proceedings which the applicant’s lawyer
failed to pursue with the requisite care.
- As
mentioned above and in the judgment itself, the administrative
proceedings, the hypothetical outcome of which the applicant was
required to demonstrate, would in the normal course of events have
taken place before an appellate administrative agency as far as the
decisions of 28 November 1996 and 30 September 1998 are
concerned, before a Regional Court (sitting as an administrative
tribunal) in the event of a negative decision on the
administrative appeal against the decision of 28 November
1996 and before the Supreme Court (sitting as an administrative
tribunal) in the event of a negative decision on the administrative
appeal against the decision of 30 September 1998.
- However,
relying on Article 135 of the Code of Civil Procedure, in respect of
the applicant’s legal malpractice claim, the ordinary courts at
two levels of jurisdiction, the Constitutional Court and also the
public prosecution service came to the conclusion that the ordinary
courts had no jurisdiction and power of review as regards the
substantive aspect of administrative decisions and that they could
not take the place of the above mentioned administrative agencies and
tribunals, pre-empt the outcome of the administrative proceedings
before them and serve as a substitute for them by determining matters
of substance within those bodies’ jurisdiction.
- In
other words, as established by the domestic courts in the instant
case, there was procedurally no way for the applicant to have the
remaining two elements of his claim examined and established on
account of the domestic courts’ lack of jurisdiction.
- The
ultimate result of the interpretation and application of the existing
domestic rules, or, where appropriate, the non-existence of other
rules, is that the applicant’s compensation claim has been
rendered practically incapable of being asserted before the courts.
At the same time, it appears that the applicant alone has been made
to bear the consequences of these deficiencies in interpretation,
application and legislation.
- The
repercussions of the practical impossibility for the applicant
to assert a malpractice compensation claim against his lawyer
were all the more significant as, owing to his lawyer’s error
in the original administrative proceedings, the applicant had
effectively been deprived of access to a judicial review of the
impugned decisions of the tax authorities.
- I
am fully aware of the practical difficulties in establishing the
extent of any real damage caused by a lawyer to his or her client,
inter alia on account of the potentially differing levels of
creditworthiness of the entity faced with the original claim and the
lawyer sued for malpractice.
- Moreover,
I certainly do not mean to suggest that, in a situation such as that
in the present case, the full amount of what was at stake in the
original proceedings should be compensated by the lawyer at fault.
After all, had the original proceedings not been hindered by the
lawyer’s mistake, they might still have had a negative outcome
for the client.
- While
the devising of a viable compensation mechanism is a task for the
legislature, I, for my part, could imagine that these difficulties
could be surmounted, for example, by establishing the missing
elements of the compensation claim by means of one or more expert
opinions aimed at determining the client’s relative likelihood
of success in the original proceedings.
- A
comparative study of the existing practice in this area in the other
Contracting States would certainly have shed light on possible
solutions and, in my view, would have been appropriate in view of the
significance of the problem.
- Be
that as it may, in the present case, within the existing legislative
framework, there was no procedural forum for the applicant to make
his claim and to address the difficulties mentioned above in any way,
all this despite the existence of an ample substantive legal
framework for legal assistance with professional liability at its
heart.
- At
the same time, nothing has been adduced by the Government or
established otherwise to justify the applicant’s lack of access
to a court as regards his legal malpractice compensation claim.
- In
particular, there is no indication that the applicant could have
pursued any claim aimed at obtaining compensation in respect of his
former lawyer’s malpractice before the ordinary courts or in
the context of disciplinary proceedings, or that he would have had
any greater prospects of success in seeking the settlement of his
claims with any other entity such as, for example, his former
lawyer’s insurer than with the lawyer herself.
- Moreover,
in my view, on a conceptual level, the existing rules on liability,
as applied in the present case, in practice amount to a general
structural impossibility of asserting procedural malpractice claims
against the lawyer concerned and, by implication, to pecuniary
impunity on the lawyer’s part, rendering the concept of
professional liability of lawyers practically meaningless.
- I
consider that the results described above cannot be reconcilable with
the spirit, object and purpose of the Convention.
Accordingly,
the application was rightly declared admissible under Article 6 §
1 of the Convention, and in my opinion, there has been a violation
of that provision.
