Last Updated on November 21, 2019 by LawEuro
FOURTH SECTION
DECISION
Application no. 8649/15
Gyula IMPLOM
against Hungary
The European Court of Human Rights (Fourth Section), sitting on 1 October 2019 as a Committee composed of:
Branko Lubarda, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having regard to the above application lodged on 2 February 2015,
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 GyulaImplom, is a Hungarian national who was born in 1950 and lives in Debrecen. He was represented before the Court by Mr D.A. Karsai, a lawyer practising in Budapest.
2. The Hungarian Government (“the Government”) were represented by their Agent, Mr Z.Tallódi, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant lodged two official liability actions for damages. The first, lodged against the Debrecen High Court, was dismissed by the Nyíregyháza High Court. The second, lodged against the lawyer who had represented the applicant in another set of proceedings and the Győr High Court, was dismissed by the Veszprém High Court.
1. First set of proceedings
5. On an unknown date the applicant lodged an appeal against a first‑instance court decision (see paragraph 4 above). In accordance with the relevant provisions of Act III of 1952 on the Code of Civil Procedure (see paragraphs 14 and 15 below), the Nyíregyháza High Court asked the applicant to lodge the appeal through a legal representative within fifteen days, and indicated what the consequences were of an appellant failing to rectify such an error. The decision was served on the applicant on 29 January 2014.
6. On 6 February 2014 the applicant again lodged the appeal without a legal representative. On 7 February 2014 the Nyíregyháza High Courtonce again drew the applicant’s attention to the fact that legal representation was mandatory, and gave him eight days to remedy the shortcoming. It later ordered an extension of this time-limit, which ultimately expired on 9 March 2014.
7. In the meantime, on 24 February 2014 the Legal Aid Service had appointed a legal aid lawyer to represent the applicant in the proceedings.
8. On 4 March 2014 the lawyer asked to be exempted from the obligation to represent the applicant. The Legal Aid Service rejected his request on the following day.
9. On 20 March the legal aid lawyer made enquiries with the court about the status of the ongoing proceedings.
10. On 26 March 2014 the Nyíregyháza High Court rejected the applicant’s appeal on the grounds that it had not been lodged by a lawyer.
11. On an unknown date the applicant applied for restitutio in integrum and lodged an appeal, arguing that his legal representative had not had any detailed information about the proceedings, including the time-limit for an appeal, until 20 March 2014 (see paragraph 9 above). The Nyíregyháza High Court rejected the application for restitutio in integrum, holding that the applicant had not established that the appellant had not been responsible for the missed deadline. Following an appeal, on 4 November 2014 the Debrecen Court of Appeal upheld the decision.
2. Second set of proceedings
12. On an unknown date the applicant lodged a petition for review in respect of a decision of the Veszprém High Court (see paragraph 4 above). The Kúria asked the applicant to lodge the petition through a legal representative within thirty days, and indicated what the consequences would be if he failed to act accordingly (see paragraph 14 below). It also drew his attention to the fact that he had to indicate the value of the dispute.
13. Subsequently, the legal aid lawyer appointed to represent the applicant in those proceedings lodged the petition. On 8 December 2014 the Kúriarejected it as incomplete, as the value of the dispute had not been indicated.
B. Relevant domestic law
14. In accordance with Article 73/A of the Code of Civil Procedure, legal representation is mandatory, inter alia: for persons lodging an appeal in proceedings before a high court; and for persons lodging a petition for review in proceedings before the Kúria. In such proceedings, any action or statement by a party without legal counsel is, unless otherwise provided for, null and void, and the party in question shall be duly notified of this (Article 73/B).
15. An appeal against a decision shall be submitted to a court of first instance within fifteen days of the decision being delivered (Article 234 of the Code).
COMPLAINT
16. The applicant complained under Article 6 § 1 of the Convention that he had been denied effective access to courts of appeal on account of mistakes made by his legal aid lawyers.
THE LAW
17. The applicant complained of a violation of his right of access to a court as provided for in 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. The parties’ submissions
1. The Government
18. The Government submitted that by not lodging a civil action for compensation against his legal aid lawyers, the applicant had failed to exhaust domestic remedies. They also drew the Court’s attention to the fact that disciplinary proceedingsagainst lawyers who failed to properly perform their dutiescould be instituted before the Hungarian Bar Association.
19. As regards the quality of the legal representation, the Government argued that the State had not been a party to the civil proceedings at issue, and therefore could not be held responsible for omissions by lawyers who were independent legal practitioners. They argued that the role of the State, which had been fulfilled in the present case, was to ensure that a legal aid lawyer was appointed and that the lawyer’s fees were paid.
2. The applicant
20. The applicant submitted that an action for damages was not an effective remedy, because even if the courts established that lawyers were liable, they restricted the amount of compensation to the amount of the lawyers’ fees.
21. The applicant maintained that the performance of his legal aid lawyers had been unacceptably poor, and that the State should have asked them whether they would be able to meet the deadlines. In his opinion, his case was indicative of the fact that the Hungarian legal aid system lacked an effective mechanism for monitoring lawyers’ work.
B. The Court’s assessment
22. The Court does not find it necessary to examine the Government’s objection of non-exhaustion of domestic remedies (see paragraph 18 above), since the application is in any event inadmissible for the following reasons.
23. The Court notes that the present case concerns the right of access to courts of appeal in relation to the omissions of legal representatives appointed under the legal aid system. The Court refers to the relevant principles derived from its case-law in this area (see Staroszczyk v. Poland, no. 59519/00, §§ 121-129, 22 March 2007; Smyk v. Poland, no. 8958/04, §§ 54-59, 28 July 2009; and Anghel v. Italy, no. 5968/09, §§ 50-52, 25 June 2013). It finds it particularly important to note that, given the independence of the legal profession from the State, the conduct of a case is essentially a matter between a party and his or her counsel, whether counsel be appointed under a legal aid scheme or privately financed, and as such cannot incur the State’s liability under the Convention, other than in special circumstances (see Smyk, cited above, § 54).
24. Turning to the circumstances of the present case, the Court observes that Hungarian law on civil procedure requires that a party have legal representation in order to lodge an appeal with a high court or a petition for review with the Kúria, and that such an action, when lodged in the absence of legal representation, be rejected by a court (see paragraph 14 above). The Court accepts that this requirement cannot, per se, be regarded as contrary to the requirements of Article 6 of the Convention (see, mutatis mutandis, Staroszczyk, cited above, § 130).
25. Furthermore, the Court observes that following his request in this regard, legal aid lawyers were appointed to represent the applicant in both sets of civil proceedings at issue. In the absence of any statement to the contrary, it has to be concluded that the authorities properly notified the applicant and his lawyers of that appointment and provided them with sufficient time to discuss and prepare the appeal and the petition. The Court further observes that in both sets of proceedings the courts gave clear instructions to the applicant, who had initially lodged the appeals without legal representation, as regards the time-limits for rectifying the errors and other formal shortcomings pertaining to his submissions (see paragraphs 5 and 12 above). In this connection, the Court notes that the applicant has not argued that those instructions were unclear or in any other way deficient.
26. Moreover, it is unclear what steps, if any, the applicant took after the legal aid lawyers had been appointed to represent him. In particular, there is no indication that the applicant shared with his lawyers the information regarding the time-limits indicated in the above court decisions, or supplied them with the relevant documentation. Moreover, it has not been argued that the applicant did anything to even establish contact with the lawyers before the time-limits for lodging the relevant appeals expired (compare and contrast with Staroszczyk, cited above, § 132). In these circumstances, the Court doubts whether the applicant himself, as an interested party, displayed the required diligence in the defence of his interests (see, mutatis mutandis, Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001, and Muscat v. Malta, no. 24197/10, § 59, 17 July 2012), and whether the errors which resulted in the applicant’s appeals being dismissed without being examined on the merits were imputable to his legal aid lawyers.
27. In any event, the Court observes that even if the lawyers committed errors which were exclusively imputable to them, the applicant did not argue that those errors had been brought to the attention of the competent authorities at some point. Having regard to the independence of the legal profession from the State (see paragraph 23 above), the Court cannot accept the applicant’s argument that the domestic authorities, of their own motion, should have asked his lawyers whether they would be able to meet the deadlines, in the absence of any signal from the applicant to this end (see paragraph 21 above).
28. In view of the above-mentioned factors, the Court considers that in the present case there are no special circumstances triggering the State’s liability under the Convention in relation to the conduct of the applicant’s lawyers appointed under the legal aid scheme. Accordingly, the matters complained of do not disclose any appearance of a violation of Article 6 § 1 of the Convention.
29. It follows that the present application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 24 October 2019.
Andrea Tamietti BrankoLubarda
DeputyRegistrar President
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