THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 43259/07
by Štefan BUCHA
against Slovakia
The European Court of Human Rights (Third Section), sitting on 20 September 2011 as a Chamber composed of:
Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 25 September 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Štefan Bucha, is a Slovakian national who was born in 1955 and lives in Žilina. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicant is a practising lawyer. By two decisions given on 13 September 2006 and 30 November 2006, the Constitutional Court appointed him to represent a claimant in two sets of constitutional proceedings brought under Article 127 of the Constitution and concerning an alleged breach of the claimant’s rights under Article 5 of the Convention and its constitutional equivalent. The appointment was made in the context of the claimant’s request for legal aid. In the decisions, reference was made to section 31a of the Constitutional Court Act 1993 and to Articles 30 and 138 of the Code of Civil Procedure. They specified that the applicant had been chosen as his office was in the town where the claimant was detained.
4. In written submissions to the Constitutional Court submitted on 16 August 2006 and 8 November 2006, the president of the ordinary court concerned argued that there had been no breach of the claimant’s rights.
5. On 19 October 2006 and 18 January 2007 the claimant informed the Constitutional Court that he insisted on an examination of his case at an oral hearing.
6. On 30 November 2006 and 20 March 2007 the Constitutional Court declared admissible the claimant’s complaints under Article 5 § 4 of the Convention and rejected the remaining claims. On the last-mentioned date it joined the two cases, to the extent that they had been declared admissible.
7. The president of the district court involved excused himself from the hearing scheduled for 27 March 2007. He cited a heavy workload and also the wish to avoid additional costs. He agreed to the hearing being held in the absence of any representative of his court. The applicant was not informed of that communication prior to the hearing.
8. On 22 March 2007 the applicant met his client, at the latter’s request, in order to complete the file and prepare the submissions which were to be made at the hearing.
9. On 27 March 2007 the Constitutional Court heard the applicant and his client. The applicant submitted documentary evidence and arguments in support of the claimant’s complaints. He also specified the claim in respect of his costs. It totalled 44,395 Slovakian korunas (SKK). That sum included SKK 9,536 in respect of the applicant’s representation of the claimant at the hearing before the Constitutional Court and time and costs relating to the applicant’s journey to Košice for the purpose of the hearing. The individual items claimed were based on the relevant provisions of Regulation 655/2004 governing the payment of fees and costs to lawyers.
10. By a judgment of 27 March 2007 the Constitutional Court found that Article 5 § 4 of the Convention had been breached on two occasions due to the fact that: (i) an ordinary court had not displayed due diligence in examining applications for release lodged by the applicant’s client; and (ii) a different court had failed to comply with the requirement of equality of arms when extending the claimant’s detention.
11. The Constitutional Court ordered, inter alia, that SKK 26,101 should be paid to the applicant for the costs of the claimant’s representation. The relevant part of its decision reads:
“The Constitutional Court, with regard to section 36(2) of the Constitutional Court Act 1993, considers ... it justified to make an award of SKK 26,101 in respect of the costs of the claimant’s legal representation... [It does not] grant the other costs claimed by the plaintiff’s representative, including the costs related to participation at the hearing held on 27 March 2007, the time of the return journey from Žilina to Košice, and travel and subsistence costs, as it does not consider them to have been necessarily incurred, as neither the representative nor the claimant put forward any facts in the course of the hearing which were unknown to the Constitutional Court on the basis of the claimant’s complaint and the files at its disposal.”
12. The judgment specified that the Constitutional Court had not considered documentary evidence which the applicant had submitted on behalf of his client in the course of the oral hearing, as that evidence had not concerned the subject-matter of the proceedings as determined by the decisions on the admissibility of the claimant’s complaints.
B. Relevant domestic law and practice
1. The Constitution and the Constitutional Court Act 1993
13. Article 47 § 2 of the Constitution guarantees to everyone the right to legal assistance in proceedings before courts, State authorities or public administration bodies under the conditions specified by law.
14. Proceedings before the Constitutional Court are governed by the Constitutional Court Act 1993 (“the 1993 Act”).
15. Pursuant to Section 20(2) of the 1993 Act, a person who wishes to bring proceedings before the Constitutional Court has to submit for a mandate in favour of the lawyer representing him or her in the proceedings unless the 1993 Act provides otherwise.
16. Pursuant to section 30(1) of the 1993 Act, an oral hearing shall be held in proceedings concerning, inter alia, natural or legal persons’ complaints brought under Article 127 of the Constitution. The Constitutional Court may refrain from holding an oral hearing, subject to the parties’ agreement, where it cannot be expected that relevant new information will be obtained thereby (subsection 2 of section 30). Section 30(3) of the 1993 Act entitles the parties and their representatives to attend oral hearings.
17. Pursuant to section 31(a) of the 1993 Act, unless the 1993 Act provides otherwise or unless it is excluded by the nature of the matter, the provisions of the Code of Civil Procedure and of the Code of Criminal Procedure are to be used by analogy in proceedings before the Constitutional Court.
18. Section 36(1) of the 1993 Act provides that parties to proceedings before the Constitutional Court have to bear their costs and expenses. Subsection 2 of section 36 entitles the Constitutional Court, where justified and in accordance with the outcome of the proceedings, to order a party to fully or partially reimburse the costs and expenses of the other party.
2. Code of Civil Procedure
19. Article 30 provides that courts should appoint a representative to a party to the proceedings, at the latter’s request, provided that he or she meets the requirements for waiver of court fees and that such an appointment is necessary for the protection of the party’s interests.
20. Article 138 § 1 provides, inter alia, that courts may grant a party’s request for waiver of court fees where it is justified by the situation of the party and provided that the claim at issue is neither frivolous nor clearly devoid of any prospect of success.
21. Article 140 § 2 provides that where a lawyer was appointed to represent a party to proceedings, the State shall pay that lawyer’s fees and reimburse his or her costs.
22. Article 142 § 1 authorises courts to grant to a party who was fully successful in an action the reimbursement of the costs which were necessary for the effective exercise or protection of his or her rights vis-à-vis the unsuccessful party.
3. Advocacy Act 2003 (Law no. 586/2003 Coll.)
23. Section 18(1) obliges lawyers to protect and pursue the rights and interests of their clients and to abide by the latter’s instructions. Such instructions do not bind lawyers where they run contrary to generally binding legal rules. Subsection 2 of section 18 obliges lawyers to diligently use all legal means which they consider beneficial for their client. At the same time, lawyers should respect the principles of efficiency and economy while providing legal services.
24. Section 20(2) provides that, without prejudice to section 21, a lawyer is entitled to refuse to provide legal services unless he has been appointed under special rules, such as Articles 30 and 31 of the Code of Civil Procedure.
25. Section 21 enumerates situations in which a lawyer is obliged to refuse to provide legal services. Thus, under point (e), a lawyer has to refuse to provide legal services where he or she is unable, because of heavy workload or long-term absence, to duly protect the rights and interests of the client.
26. Pursuant to section 25, when a lawyer has been appointed under the legal aid scheme to assist a client, the remuneration for his legal services is to be paid by the State.
27. Under section 56(1), a breach of an obligation under the Advocacy Act 2003 or an internal regulation of the Bar Association attributable to a lawyer is qualified as a disciplinary offence. The sanctions for such offences are listed in subsection 2 of section 56. They include a written warning, public reprimand, a fine, suspending the right to practice as a lawyer for a period from six months to three years and being struck off from the roll.
4. Domestic courts’ practice
28. With reference to section 31a of the Constitutional Court Act 1993, taken in conjunction with Articles 30 and 138 § 1 of the Code of Civil Procedure, the Constitutional Court has held that it may appoint a lawyer to represent a natural or legal person, at that person’s request, provided that this is justified by the claimant’s situation and that the case is not clearly devoid of any prospect of success.
29. In judgment II. ÚS 78/03 of 9 September 2004 the Constitutional Court ruled that the right to reimbursement of costs which were properly incurred is a part of the fundamental right to legal assistance. However, it did not find a breach of that provision in a situation where the ordinary court involved, while applying Article 142 § 1 of the Code of Civil Procedure, had made no award in respect of costs. The Constitutional Court held that the law provided for discretion in the assessment of whether the costs claimed were necessarily incurred. It concluded that the very essence of the claimant’s right under Article 47 § 2 of the Constitution had not been affected.
30. In judgment II. ÚS 176/03 of 17 June 2008 the Constitutional Court found a breach of a person’s right to a hearing within a reasonable time. That person was represented by the present applicant. The Constitutional Court ordered the reimbursement of the applicant’s fees and costs. The sum awarded also took into account the claimant’s representation at the hearing held before the Constitutional Court and time and costs relating to the applicant’s journey to the seat of the Constitutional Court for the hearing.
31. In accordance with the Supreme Court’s practice (for example, decision 4 Obo 51/93 of 31 January 1993), courts should assess whether costs incurred are reasonable. They should grant reimbursement of expenses which were necessary for the exercise or protection of a party’s right.
COMPLAINTS
32. In his application the applicant complained that the Constitutional Court, contrary to its practice in other similar cases, had refused to compensate him for the costs relating to his participation at the oral hearing. He relied on Articles 4 § 2, 6 § 1 and 14 of the Convention. In a letter sent on 12 July 2011 the applicant indicated that he alleged also a breach of Article 1 of Protocol No. 1.
THE LAW
A. Alleged violation of Article 4 § 2 of the Convention
33. The applicant complained that the Constitutional Court had refused to compensate him for costs relating to his participation at an oral hearing in proceedings in which he had been appointed to represent a claimant. He cited Article 4 § 2 of the Convention, the relevant parts of which read as follows:
“2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include: (...)
(d) any work or service which forms part of normal civic obligations.”
34. The Government argued that the obligation imposed on the applicant to represent a plaintiff before the Constitutional Court was to be considered as work which formed part of the normal civic obligations of practising lawyers. As such, it fell outside the scope of Article 4 § 2 of the Convention read in conjunction with Article 4 § 3 (d). The Constitutional Court had ordered reimbursement of the applicant’s fees and costs which it had considered to have been necessarily incurred. Under domestic law, the Constitutional Court had been able to exercise a certain amount of discretion in determining the issue. It had given relevant and sufficient reasons for its decision. In any event, the applicant had not had to bear an excessive burden in the circumstances.
35. The applicant maintained that he had been appointed to represent his client in the context of free legal aid which the Constitutional Court had granted to the client. His client had insisted on and had been entitled to an oral hearing in the case. Under the relevant provisions of the Advocacy Act 2003 the applicant had been obliged to represent his client at the hearing, failing which he would have risked the imposition of a fine by the Constitutional Court or a sanction by the Bar Association if his client had complained that he had failed to provide due legal assistance to him.
36. The applicant considered that, had he represented the client on the basis of a contract, he could have claimed the sum which the Constitutional Court had refused to reimburse to him from the client, as he had acted in accordance with the latter’s request. However, because the client had been granted free legal aid, the applicant’s costs should have been reimbursed in full by the State. The refusal to reimburse a part thereof had amounted, in the circumstances, to a breach of Article 4 § 2 of the Convention.
37. The Court reiterates that, when deciding whether a service required to be performed falls within the prohibition of “forced or compulsory labour”, it will have regard to all the circumstances of the case in the light of the underlying objectives of Article 4. Paragraph 3 of Article 4 forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” shall not include. Paragraph 3 serves as an aid to the interpretation of paragraph 2. The subparagraphs of paragraph 3 are grounded on the governing ideas of the general interest, social solidarity and what is normal in the ordinary course of business (see Van der Mussele v. Belgium, 23 November 1983, § 38, Series A no. 70; Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291‑B; and Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006‑VIII).
38. Thus in Van der Mussele (cited above, §§ 34-41) the Court accepted that the applicant, a “pupil-avocat”, had suffered some prejudice by reason of the lack of remuneration and of reimbursement of expenses, but that prejudice went hand in hand with advantages and had not been shown to be excessive. It held that while remunerated work may also qualify as forced or compulsory labour, the lack of remuneration and of reimbursement of expenses constitutes a relevant factor when considering what is proportionate or in the normal course of business. Noting that the applicant had not had a disproportionate burden of work imposed on him and that the amount of expenses directly occasioned by the cases in question had been relatively small, the Court concluded that in that case there had been no compulsory labour for the purposes of Article 4 § 2 of the Convention.
39. More recently, the Court concluded that a physician’s obligation to participate in emergency medical service did not amount to compulsory or forced labour for the purposes of Article 4 § 2 and declared the relevant part of the application inadmissible as being manifestly ill-founded (see Steindel v. Germany (dec.), no. 29878/07, 14 September 2010). In that case the Court considered relevant, in particular, (i) that the services to be rendered were remunerated and did not fall outside the ambit of a physician’s normal professional activities, (ii) the obligation in issue was founded on a concept of professional and civil solidarity and was aimed at averting emergencies, and (iii) the burden imposed on the applicant was not disproportionate.
40. As regards the present case, the Court first notes that legal representation of a party in proceedings before the Constitutional Court is mandatory and that Article 47 § 2 of the Constitution guarantees to everyone the right to receive legal aid. The refusal to grant free legal aid to a party to civil proceedings may, under certain circumstances, also give rise to a breach of the Contracting Parties’ obligations under Article 6 § 1 of the Convention, which comprises the right of access to court (see, for example, Airey v. Ireland, 9 October 1979, § 26, Series A no. 32).
41. The applicant has freely chosen his profession as a lawyer knowing that lawyers have, according to Slovak law, the obligation to represent indigent clients where a court appoints them as legal aid counsel. The nature and scope of legal representation of the claimant in the proceedings before the Constitutional Court did not diverge from the applicant’s usual duties as a practising lawyer. It has not been shown to have unduly interfered with his duties in respect of other clients. It is also relevant in this respect that under section 21(e) of the Advocacy Act 2003 a lawyer, even if officially appointed, has to refuse to provide legal services where he or she is unable, because of heavy workload or long-term absence, to duly protect the rights and interests of the client.
42. The applicant’s principal argument related to the fact that the Constitutional Court had refused to order reimbursement of part of the costs which had resulted from representing his client at the oral hearing. While the Constitutional Court had considered that those costs had not been necessarily incurred, the applicant maintained that he had been obliged, under the threat of sanction, to follow his client’s wishes and to represent him at the hearing.
43. The Constitutional Court exercised its power which domestic law reserved to courts when deciding on parties’ costs and expenses (see paragraphs 18, 22, 29 and 31 above), and it gave extensive reasons for its decision. Without having to determine whether or not the decision to refuse the reimbursement of part of the applicant’s costs was justified in the circumstances, the Court finds that any burden imposed on him in that context was not disproportionate. In addition to the above considerations, it is relevant that the applicant was reimbursed for the major part of his costs and expenses and that he himself admitted that in other sets of proceedings the Constitutional Court, where it considered it justified, had ordered the reimbursement to the applicant of costs related to a hearing before it (see paragraph 30 above).
44. In these circumstances, the Court considers that the services required by the applicant did not amount to compulsory or forced labour within the meaning of Article 4 § 2 of the Convention.
45. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Alleged violation of Article 6 § 1 of the Convention
46. The applicant complained that the Constitutional Court’s decision refusing the reimbursement of part of his costs had been arbitrary. He relied on 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[n] tribunal...”
47. The Court reiterates that, in accordance with Article 19 of the Convention, its duty is to ensure the observance of the engagements 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 (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
48. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the applicant’s rights set out in Article 6 § 1.
49. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Alleged violation of Article 14 taken together with Articles 4 § 2 and 6 § 1 of the Convention
50. The applicant complained that he had been discriminated against in that the Constitutional Court, contrary to its practice in different cases, had refused to reimburse part of his costs. He relied on Article 14 of the Convention, which provides:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
51. The Government argued that the facts of the case fell outside the ambit of Article 14 of the Convention.
52. The applicant disagreed. With reference to the Constitutional Court’s judgment II. ÚS 176/07 (see paragraph 30 above), he argued that the refusal to grant reimbursement of his costs in their entirety had been discriminatory.
53. The Court reiterates that the criteria which serve to delimit the concept of compulsory labour include the notion of what is in the normal course of business. Work or labour that is in itself normal may in fact be rendered abnormal if the choice of the groups or individuals bound to perform it is governed by discriminatory factors (see Van der Mussele, cited above, § 43; Zarb Adami, cited above, § 45; or Steindel v. Germany (dec.), also cited above). It has therefore held that Article 14 in conjunction with Article 4 is applicable in cases similar to the present one. The Court is in any event required to examine this complaint, as the applicant also submitted it in conjunction with Article 6 § 1 of the Convention.
54. In accordance with the Court’s case law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations (for recapitulation of the relevant principles see, for example, D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007‑..., with further references).
55. In the present case, there is no indication that the applicant was discriminated against in that he was appointed to represent an indigent claimant in proceedings before the Constitutional Court. As indicated above, the obligation to represent clients in similar circumstances results from the relevant law and is applicable to all practising lawyers.
56. The Constitutional Court reasoned its decision not to reimburse part of the costs claimed by the applicant by the fact that the relevant sum had not been necessarily incurred. In doing so, it exercised the discretion in the assessment of the relevant facts which domestic law reserves to courts in similar circumstances. The Court therefore considers that the difference in treatment complained of had an objective and reasonable justification, namely the assessment, within the scope of the discretion provided for by domestic law, of whether the sum claimed was justified and reasonable. The Constitutional Court’s decision cannot, therefore, be considered as discriminatory contrary to the requirements of Article 14 of the Convention.
57. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Alleged violation of Article 1 of Protocol No. 1
58. When notifying the application to the respondent Government, the Court decided, of its own initiative, to put a question to the parties as to whether there had been a breach of the applicant’s right under Article 1 of Protocol No. 1 to peaceful enjoyment of his possessions. In their observations, the Government submitted a reply to that question.
59. The applicant was invited to submit by 14 July 2010 any written observations which he might have wished to make in reply. In his written submissions of 6 July 2010 the applicant made no comment in respect of his rights under Article 1 of Protocol No. 1.
60. The Court has noted that in a letter which was sent on 12 July 2011 the applicant stated that he wished to extend his application in that he alleged also a breach of Article 1 of Protocol No. 1. However, that submission was made belatedly, namely one year after the time-limit for submission of the applicant’s observations had expired.
61. In these circumstances, the Court is not required to examine whether the facts of the case give rise to a breach of Article 1 of Protocol No. 1.
For these reasons, the Court unanimously
Declares the application inadmissible.
Santiago QuesadaJosep Casadevall Registrar President
Full & Egal Universal Law Academy