AS TO THE ADMISSIBILITY OF
Application No. 17829/91
by Erik Albert Lotze BOECK
against Denmark
The European Commission of Human Rights (Second Chamber) sitting
in private on 1 April 1992, the following members being present:
MM. S. TRECHSEL, President of the Second Chamber
C.A. NØRGAARD
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
Mr. K. ROGGE, Secretary to the Second Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 November 1990
by Erik Albert Lotze BOECK against Denmark and registered on 21
February 1991 under file No. 17829/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows.
The applicant is a Danish citizen, born in 1942. He is a civil
engineer and resides at Frederiksberg, Denmark.
In 1967 the applicant joined the Danish Association of Engineers
trade union. In 1983, however, he left the union which he found pursued
socialistic goals.
In 1985 the applicant started working in the Patents Directorate
(Patentdirektoratet) which falls under the administrative authority of
the Ministry of Industry. In August 1988 he was dismissed by the
Director of the Patents Directorate with effect from 1 January 1989
allegedly because of lack of the necessary qualifications for the job.
The applicant was convinced, however, that he had been dismissed
because he was not a member of the Danish Association of Engineers for
which reason he asked the Minister of Industry to investigate the
matter. On 22 September 1988 the Minister informed the applicant that
he found no reason to criticise the Director's decision to terminate
the employment due to lack of the necessary qualifications. The
Minister found it established that trade union membership questions had
not in any way influenced the decision. Furthermore, the Minister
informed the applicant that in so far as he considered his dismissal
to be due to his non-membership of a trade union this was a question
to be determined by the courts.
The applicant then applied for legal aid in order to institute
proceedings against the Patents Directorate but his application was
rejected on 6 July 1990 by the Copenhagen County Authority (Københavns
Statsamt) since it did not appear that the applicant had any reasonable
grounds for suing the Directorate.
The applicant appealed against this decision to the Directorate
of Civil Law (Civilretsdirektoratet). In its decision of 27 November
1990 refusing legal aid the Directorate stated:
(translation)
"The Directorate's decision has been taken pursuant to Section
330 of the Administration of Justice Act (retsplejeloven),
according to which it is a requirement for granting legal aid
that the applicant, inter alia, appears to have reasonable
grounds for litigation, which normally means that the applicant
must have prospects of being successful in regard to his claims.
The reason for the decision is first and foremost that you have
not, in the Directorate's opinion, in the circumstances of the
case sufficiently rendered it probable that you could provide
such evidence as would be necessary in order to be successful
with your claim.
The Directorate has also considered your application under
Section 331 of the Administration of Justice Act according to
which the Directorate may grant legal aid when special reasons
so require regardless of whether the conditions set out in
Section 330 are fulfilled. This applies in particular in cases
of principle, in cases of general public interest, or in cases
which are of considerable importance to the applicant's social
situation or employment. According to practice it is, however,
normally also a requirement for granting legal aid pursuant to
Section 331 that the applicant appears to have reasonable grounds
for litigation which, as indicated, normally means that the
applicant must have prospects of being successful in regard to
his claims.
As mentioned above the Directorate does not find that you have
prospects of being successful with your claim, for which reason
there is no basis upon which you could be granted legal aid in
accordance with Article 331 of the Administration of Justice
Act."
The applicant did not pursue his case in the ordinary courts of
law.
COMPLAINTS
The applicant complains that he was denied access to court, and
thus to a fair hearing, contrary to Article 6 para. 1 of the Convention
since he was not granted legal aid. He also maintains that this amounts
to a violation of Articles 13 and 17 of the Convention. Finally, in
regard to the question of access to court the applicant complains that
legal aid was denied him in a discriminatory manner. He refers in this
respect to Article 14 of the Convention.
Under Article 11 of the Convention the applicant complains that
he was dismissed only due to the fact that he was not a member of the
Danish Association of Engineers trade union.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he has been denied access to court as a result of the
refusal of the Directorate of Civil Law to grant him legal aid.
Article 6 para. 1 (Art. 6-1) of the Convention provides inter
alia:
"In the determination of his civil rights and obligations ...,
everyone is entitled to a fair ... hearing ... by an independent
and impartial tribunal established by law."
According to the case-law of the Commission and the European
Court of Human Rights Article 6 para. 1 (Art. 6-1) guarantees to
litigants an effective right of access to the courts for the
determination of their "civil rights and obligations". However, a free
choice of the means to be used towards this end is left to the States.
Furthermore, there is no obligation on the States to provide free legal
aid for every dispute relating to a "civil right" (cf. Eur. Court H.R.,
Airey judgment of 9 October 1979, Series A no. 32, para. 26, p. 15).
The Commission finds that where a State chooses a legal aid
system to provide for access to court, such a system can only operate
effectively, given the limited resources available, by establishing a
machinery to select which cases should be legally aided. Such
limitations on the availability of free legal aid, common to most
Convention States, often require a financial contribution or that the
proposed litigation have reasonable prospects of success. In the
Commission's view, Article 6 para. 1 (Art. 6-1) does not require that
legal aid be provided in every case, irrespective of the nature of the
claim and the supporting evidence. Where an individual is refused legal
aid in a particular case because his proposed civil claim is either not
sufficiently well grounded or is regarded as frivolous or vexatious the
burden would then fall on him to secure his "access to court" in some
other way such as, for example, bringing the action himself or seeking
assistance from some other source. Accordingly, the Commission is of
the opinion that where a person has been refused legal aid on the basis
that his claim lacks reasonable prospect of success such a situation
would not normally constitute denial of access to court unless it could
be shown that the decision of the administrative authority was
arbitrary (cf. No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).
In the present case the Commission recalls that the questions
concerning the granting of legal aid in Denmark are regulated by law,
i.e. Sections 330 and 331 of the Administration of Justice Act. The
Directorate of Civil Law found that the necessary requirements were not
fulfilled in that the applicant's civil claim was not sufficiently well
founded. In this respect the administrative authority necessarily had
a certain discretionary power, and the applicant has not submitted any
evidence which could lead the Commission to conclude that the decision
taken was arbitrary or, having regard to the applicant's reference to
Article 14 (Art. 14) of the Convention, based on discriminatory
considerations. Furthermore, the applicant does not dispute that he
could bring an action himself, albeit at his own expense, should the
action eventually fail. The applicant's allegation that he would not
receive a fair hearing in such circumstances has not been
substantiated. Accordingly, the Commission finds that he was not denied
access to court.
It follows that this part of the application must be rejected as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. Having regard to the above conclusion the Commission finds that
no separate issue arises as regards the applicant's reference to
Articles 13 and 17 (Art. 13, 17) of the Convention.
3. The applicant finally complains that he was dismissed due to the
fact that he was not a member of a trade union and invokes in this
respect Article 11 (Art. 11) of the Convention.
However, the Commission is not required to decide whether or not
the facts alleged by the applicant disclose any appearance of a
violation of this provision as, under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law.
In the present case the applicant did not institute proceedings
in the ordinary courts of law in order to have determined whether his
dismissal was due to non-membership of a trade union and he has not
shown that he was unable to do so. In this respect the Commission
recalls that a dismissal based on non-membership of a trade union would
be illegal under Danish law, a view the Danish courts have constantly
upheld (cf. No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237).
Accordingly, the applicant has not exhausted the remedies
available to him under Danish law and, in the light of the finding
above, an examination of the case does not disclose the existence of
any special circumstances which might have absolved the applicant,
according to the generally recognised rules of international law, from
exhausting the domestic remedies at his disposal.
It follows that the applicant has not complied with the condition
as to the exhaustion of domestic remedies and this part of the
application must accordingly be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (S. TRECHSEL)
Full & Egal Universal Law Academy