EHRM, 22-11-2011, nr. 48132/07

The Government submitted that the application should be deemed to have been lodged more than six months after the Supreme Court's decision of 23 May 2007. They argued that in the applicant's first letter, which had arrived at the Court on 6 November 2007, he had neither complained about the Supreme Court's decisions of 9 May and 23 May 2007 (see paragraphs 16 and 17 above) nor provided a copy of them. The application form in which the decision of 23 May 2007 was mentioned had only been received by the Court on 21 May 2008.

Furthermore, the Government contended that the application was manifestly ill-founded since the applicant had been assigned counsel under the State legal-aid scheme and the courts had not needed to be aware of his problems of communication with his counsel. Moreover, the State could not be held directly responsible for the activities of counsel. In any event, the applicant had lost his ‘victim’ status since he was later afforded a new legal-aid lawyer for the filing of his request with the Supreme Court for the reopening of the proceedings (cf. Fiecek v. Poland (dec.), no. 27913/95, 23 October 2001).

Lastly, the Government argued that the applicant had failed to exhaust domestic remedies, namely to file a claim for damages against the lawyer or his law firm or insurer.

The applicant reiterated that the breaches of the Convention and events leading to his having no effective access to the Supreme Court had been outlined in his first submission to the Court and thus the six-month rule had been complied with.

The applicant emphasised that in the case of Fiecek, referred to by the Government, a cassation appeal had been lodged after the appointment of a lawyer and the Supreme Court had heard the appeal but rejected it. Furthermore, cassation proceedings and proceedings concerning a request for the reopening of criminal proceedings were to be distinguished in Estonian law. Therefore, the applicant had maintained his ‘victim’ status.

In respect of whether he had to lodge a claim for damages in order to exhaust domestic remedies, the applicant submitted that such a claim could not have changed his criminal punishment, including his expulsion after serving the prison sentence.

The applicant argued that he had not had effective access to the Supreme Court. He was of the opinion that the mere appointment of a legal-aid lawyer — who without good reason had failed to lodge an appeal — was insufficient.

The applicant pointed out that he had done everything he could reasonably have been expected to do in order to have an appeal lodged: he had telephoned both his lawyers in the case, informed the court about his intention to lodge an appeal, and drafted an appeal of his own. There had been no reason to make any complaints against the lawyer while the time-limit for appeal had not yet expired, whereas afterwards it had been too late.

The applicant was of the opinion that the rapid replacement of his original counsel B. by K. by the Court of Appeal had contributed to the result that had followed. He also noted that the officers of the Court of Appeal had deemed it necessary to notify K. of the applicant's intention to appeal to the Supreme Court but they had done so only after the time-limit for appeal had expired.

The applicant considered that the procedure for requesting the reopening of criminal proceedings (teistmine) was not equivalent to and could not replace the cassation procedure since in the former procedure the Supreme Court's jurisdiction was much more limited than in the latter. Failure by a lawyer to submit an appeal in time did not constitute a ground for reopening criminal proceedings.

The applicant noted that only on an extremely limited number of occasions had the Supreme Court examined the matter on the merits and ruled in favour of applicants, who had had no clear-cut formal procedure for enforcing their rights. Had the Supreme Court been willing to find such exceptional circumstances in the present case, it would have had the opportunity to do so on receipt of the applicant's appeal in cassation, his counsel's appeal in cassation and application for the restoration of the time-limit, or the applicant's request for the reopening of the criminal proceedings.

The Government emphasised that the authorities had appointed a legal-aid lawyer for the applicant. Lawyers were independent in their provision of legal services. The State had no right of direct involvement in the lawyers' activities and it could not be held responsible for every shortcoming on the part of a lawyer. As K. had participated as counsel in the hearing before the Court of Appeal, he had also been obliged to provide legal assistance to the applicant in filing a cassation appeal. The courts dealing with the case had been aware of this and could not have been expected to take any additional steps in this connection. The applicant had also been aware that K. was supposed to file the cassation appeal. The authorities had been unaware of any problems with counsel the applicant might have had at the material time.

The Government further submitted that although the State was not responsible for the actions of the lawyer, it had nevertheless remedied the fact that the applicant had had no access to the Supreme Court because of the failure of the advocate to file a cassation appeal within the time-limit by providing new State legal aid to the applicant for filing a request for the reopening of the case after the Bar Association had ascertained the breach of duty by the advocate. The new legal-aid lawyer had filed a request for the reopening of the case with the Supreme Court on the grounds that the former counsel's failure to file a cassation appeal within the time-limit had meant that the applicant had had no access to the Supreme Court. The Supreme Court had examined the request for the reopening of the case and had decided not to accept it for proceedings.

The Government acknowledged that in narrow and formal terms it might be said that a refusal by the Supreme Court to accept for proceedings a request for the reopening of a case meant that no grounds for reopening existed. However, according to the Supreme Court's case-law, the Supreme Court did not refuse to review a case on the merits if a person had no other means of protecting his fundamental rights (see paragraphs 38 to 40 above). Thus, it had to be concluded that in essence the refusal to accept the request had also meant that no grounds for cassation existed, that is, that no rules of substantive law had been misapplied or rules of procedure violated.

The Government concluded that the applicant had had effective access to the Supreme Court and there had been no violation of Article 6 § 1.

In respect of the Contracting Parties' liability under the Convention, the Court reiterates that their responsibility is incurred by the actions of their organs. A lawyer, even if officially appointed, cannot be considered to be an organ of the State. Given the independence of the legal profession from the State, the conduct of the case is essentially a matter between the defendant and his or her counsel, whether counsel be appointed under a legal-aid scheme or be privately financed, and, as such, cannot, other than in special circumstances, incur the State's liability under the Convention. The competent national authorities are required under Article 6 § 3 (c) to intervene only if a failure by legal-aid counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way (see Kamasinski v. Austria, 19 December 1989, § 65, Series A no. 168; Daud v. Portugal, 21 April 1998, § 38, Reports 1998-II; Sannino v. Italy, no. 30961/03, § 49, ECHR 2006-VI; Siałkowska v. Poland, no. 8932/05, § 99, 22 March 2007; and Kulikowski v. Poland, no. 18353/03, § 56, 19 May 2009). It will depend on the circumstances of the case whether the relevant authorities should take action (see Daud, cited above, §§ 40–42) and whether, taking the proceedings as a whole, the legal representation may be regarded as ‘practical and effective’ (see Kulikowski, cited above, § 57; Siałkowska, cited above, § 100; Rutkowski v. Poland (dec.), no. 45995/99, ECHR 2000-XI; Goddi v. Italy, 9 April 1984, § 27, Series A no. 76; and Artico v. Italy, 13 May 1980, § 33, Series A no. 37). Assigning counsel to represent a party to the proceedings does not in itself ensure the effectiveness of the assistance (see, for example, Sejdovic v. Italy [GC], no. 56581/00, § 94, ECHR 2006-II, and Imbrioscia v. Switzerland, 24 November 1993, § 38, Series A no. 275).

The Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Sabeh El Leil v. France [GC], no. 34869/05, § 50, 29 June 2011; Andrejeva v. Latvia [GC], no. 55707/00, § 98, 18 February 2009; Kulikowski, cited above, § 58; Siałkowska, cited above, § 101; and Airey v. Ireland, 9 October 1979, § 24, Series A no. 32).

Furthermore, the ‘right to a court’, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person's access in such a way or to such an extent as to impair the very essence of the right. Furthermore, such limitations will only be compatible with Article 6 § 1 if they pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim pursued (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, ECHR 2001-VIII; RTBF v. Belgium, no. 50084/06, § 69, 29 March 2011; Kemp and Others v. Luxembourg, no. 17140/05, § 47, 24 April 2008; Běleš and Others v. the Czech Republic, no. 47273/99, § 61, ECHR 2002-IX; and Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 34, Reports 1998-I).

The Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11). The manner in which this provision applies to courts of appeal or of cassation depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation's role in them. Given the special nature of the court of cassation's role, which is limited to reviewing whether the law has been correctly applied, the Court is able to accept that the procedure followed in such courts may be more formal (see Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 41, ECHR 2002-VII; Khalfaoui v. France, no. 34791/97, § 37, ECHR 1999-IX; Kulikowski, cited above, § 59; and Siałkowska, cited above, §§ 103–104). Nevertheless, the Court has in several cases found that a particularly strict construction of procedural rules by the supreme or constitutional courts deprived applicants of their right of access to a court (see, among others, Běleš and Others, cited above, § 69; Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 55, ECHR 2002-IX; Efstathiou and Others v. Greece, no. 36998/02, § 33, 27 July 2006; Kemp and Others, cited above, § 59, 24 April 2008; Reklos and Davourlis v. Greece, no. 1234/05, § 28, 15 January 2009; Dattel v. Luxembourg (no. 2), no. 18522/06, § 44, 30 July 2009; and RTBF, cited above, § 74).

Turning to the present case, the Court notes at the outset that the applicant benefited from State legal aid in the proceedings before the first-instance court. He drew up an appeal of his own but did not wish to participate in the appellate court hearing, although he gave certain instructions to his lawyer. When his original legal-aid lawyer could not participate in the hearing, the Court of Appeal replaced him by another lawyer in order to ensure the applicant's representation. The newly appointed lawyer did participate in the hearing before the Court of Appeal.

As concerns the applicant's wish to pursue the proceedings before the Supreme Court, the Court notes that he duly notified the appellate court of his intention to appeal. As to the applicant's further steps, the facts are not entirely clear. According to the applicant he telephoned his original lawyer from prison to inform him of his intention to appeal. Having been told that it was for the newly appointed lawyer to provide him with any further assistance, he also telephoned the new lawyer. The supposition that the new lawyer was aware of the applicant's wish to appeal to the Supreme Court is supported by the original lawyer's statements to the Court of Honour of the Bar Association, in which he asserted that having received the telephone call from the applicant he had informed the new lawyer of the applicant's intention to appeal. However, the newly appointed lawyer submitted to the Court of Honour that he had only learned of the need to draft an appeal to the Supreme Court from the Court of Appeal's office after the expiry of the time-limit. Be that as it may, the Court notes the Court of Honour's finding that it had been the newly appointed lawyer's duty to find out whether the applicant wished to appeal against the Court of Appeal's judgment.

This leads the Court to the question of the extent to which the State's responsibility is engaged in such circumstances. Given the independence of the profession, it is impossible for a State to prevent all and any omissions by a lawyer (see the principles established in the Court's case-law, summarised in paragraph 65 above). At the same time, it is for the State to put in place a system capable of ensuring the respect of rights guaranteed under the Convention, including the right to a fair trial (see paragraphs 66 to 68 above).

The Court notes in this context that the applicant had no ground to complain about his lawyer before the time-limit allowed for appeal to the Supreme Court had expired; thereafter he wrote a letter to the Supreme Court but received the reply that the appeals had been rejected and the lawyer's request for the restoration of the time-limit dismissed (see paragraph 18 above).

As concerns further possibilities to complain about the lawyer's omission, the Court observes that the applicant had the opportunity to use a procedure put in place by the State for that purpose, namely, recourse to the Court of Honour of the Bar Association. While it is true that proceedings in the Court of Honour could not replace an appeal to the Supreme Court, the applicant could, and in fact did, have it established, in those proceedings, that his legal-aid lawyer failed to duly perform his duties.

However, the Court observes that the system put in place for dealing with such cases had one important shortcoming: it does not appear that the domestic law provided for any immediate consequences of the establishment of the lawyer's failure to act by the Court of Honour, such as its serving as grounds for the assigning of a new lawyer and the restoration of the time-limit for appeal or the reopening of the criminal proceedings. In the absence of such legislation or court practice, the Court does not consider that the applicant was required to try these remedies before lodging an application with it. Similarly, in the recent case of Metsaveer v. Estonia, which concerned civil proceedings, the Court noted that the Government had not referred to any case-law where after proceedings before the Court of Honour of the Bar Association the time-limit for filing an appeal in cassation with the Supreme Court had been restored. In that context, and in the absence of any specific legal provisions which would have secured a person in receipt of legal aid access to the Supreme Court in the case of an omission by the legal-aid lawyer, the Court was not convinced of the effectiveness of the remedies proposed by the Government (see Metsaveer v. Estonia (dec.), no. 16343/07, 14 June 2011).

Nevertheless, the Court has not overlooked the fact that in the present case the applicant did apply for and was granted legal aid for lodging a request for the reopening of the criminal proceedings and the new legal-aid lawyer did indeed lodge such a request on the applicant's behalf. It further notes that the parties' opinions differ as to the relevance of such a request. According to the applicant, a request for the reopening of proceedings could not replace an appeal in cassation because the legal grounds for reopening a case were much more limited and only on exceptional occasions had the Supreme Court dealt with the merits of such requests. In contrast, the Government referred to the Supreme Court's case-law according to which it did not refuse to review a case on the merits if the person concerned had no other means of protecting his or her fundamental rights.

The Court observes that the grounds for cassation and for the reopening of proceedings are indeed different pursuant to the Code of Criminal Procedure (see paragraphs 32 to 34 above). It follows from the text of the law, as well as from the Supreme Court's practice, that a request for the reopening of a case is not meant to be an alternative to cassation proceedings, and the former appears to be limited to rather exceptional circumstances. While it is true that the Supreme Court has stated that it does not decline to accept petitions in circumstances where an applicant has no other effective procedure for the protection of his or her rights (see paragraphs 38 to 40 above), the fact remains that such cases are exceptional and cannot be considered part of the ordinary criminal proceedings. Moreover, the Court reiterates that according to its established case-law Article 6 does not apply to proceedings for the reopening of criminal proceedings (see, for example, X v. Austria, no. 7761/77, Commission decision of 8 May 1978, Decisions and Reports 14, p. 173; and, more recently, Trgo v. Croatia, no. 35298/04, § 70, 11 June 2009, and Vojta v. the Czech Republic (dec.), no. 25126/06, 8 February 2011), nor is it a remedy to be exhausted for the purposes of Article 35 of the Convention. The Court also takes note of the Supreme Court's judgment in case no. 3-1-2-3-09 where it was found that the existence of two divergent sets of operative provisions of a judgment were not grounds for the reopening of the proceedings, the originally delivered operative provisions being decisive (see paragraphs 41 and 42 above). Therefore, the Court cannot accept that filing a request for the reopening of the proceedings meant that the applicant was ensured effective access to the Supreme Court.

The Court consequently considers that although the applicant was given State legal aid for filing an appeal with the Supreme Court, and despite the fact that he did everything that could have been expected for his part, the failure of his legal-aid lawyer to duly perform his duties and the lack of any subsequent measures to adequately remedy the situation deprived the applicant of his right of access to the Supreme Court.

There has therefore been a violation of Article 6 § 1 of the Convention.