URBSIENE AND URBSYS v. LITHUANIA - 16580/09 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 964 (08 November 2016)

In the case of Urbšienė and Urbšys v. Lithuania,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

          András Sajó, President,
          Nona Tsotsoria,
          Paulo Pinto de Albuquerque,
          Krzysztof Wojtyczek,
          Egidijus Kūris,
          Gabriele Kucsko-Stadlmayer,
          Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,

Having deliberated in private on 11 October 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 16580/09) against the Republic of Lithuania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Lithuanian nationals, Ms Rimanta Irena Urbšienė (“the first applicant”) and Mr Dalius Urbšys (“the second applicant”), on 31 October 2008.

2. The applicants, a married couple, were represented by Ms J. Guzevičiūtė, a lawyer practising in Vilnius. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė.

3. The applicants alleged that they had been refused legal aid and that that refusal, based solely on the fact that they as individuals were engaged in commercial activities, had limited their access to court and was discriminatory. They also alleged that they had not been properly notified of an oral hearing before the appellate court.

4. On 2 November 2015 the complaints concerning the refusal of legal aid and alleged improper notification of the oral hearing before the appellate court were communicated to the Government. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicants were born in 1963 and 1964 respectively and live in Kaunas.

6. The first applicant was the owner of a private unlimited liability company (individuali įmonė) (see paragraphs 29-31 below). In 2001 another company brought a claim against her company to recover rent arrears for its premises together with interest for late payment. During the proceedings before the court of first instance the first applicant asked for several adjournments due to her illness, one of which was granted. On 27 February 2001 the Kaunas Regional Court ordered the first applicant’s company to pay a total of 211,883 Lithuanian litai (LTL - approximately 61,365 euros (EUR)) to the claimant company. The first applicant appealed and on 26 June 2001 the Court of Appeal remitted the case to the court of first instance for fresh examination. On 27 September 2001 the first applicant brought a counterclaim for LTL 167,018, alleging that the claimant company had failed to properly fulfil its contractual obligations. On 8 April 2002 the Kaunas Regional Court allowed the claim and allowed the counterclaim in part, ordering the first applicant’s company to pay LTL 211,884 and the claimant company LTL 5,295. The first applicant appealed and on 15 July 2002 the Court of Appeal increased the sum to be paid by the claimant company to LTL 8,103. The first applicant submitted a cassation appeal and on 29 January 2003 the Supreme Court upheld the Court of Appeal’s decision. In those proceedings the first applicant’s company was always represented by a lawyer hired by her.

7. On 28 March 2003 the Kaunas Regional Court instituted bankruptcy proceedings in respect of the first applicant’s company.

8. In 2004 the second applicant asked the domestic courts to reopen the rent arrears proceedings and to suspend the bankruptcy proceedings. He claimed that he had not been party to the proceedings even though he was the first applicant’s husband and the private unlimited liability company was a joint matrimonial asset. The second applicant was represented by a lawyer throughout those proceedings. The second applicant also asked for an adjournment of the proceedings due to his lawyer’s absence and his request was granted.

9. On 25 May 2004 the Kaunas Regional Court refused to reopen the proceedings because the second applicant had failed to lodge his claim within the prescribed time-limit of three months of becoming aware of the circumstances providing the grounds for the reopening of the proceedings. He appealed and on 26 August 2004 the Court of Appeal returned the case to the court of first instance for fresh examination. During the proceedings, the second applicant asked for adjournment due to his lawyer’s absence, which was granted. On 7 January 2005 the Kaunas Regional Court decided to reopen the rent arrears proceedings. On 19 January 2005 it joined them to the bankruptcy proceedings. The second applicant submitted several appeals against the joining of the two cases but they were subsequently dismissed.

10. On 20 June 2005 the Kaunas Regional Court examined the reopened rent arrears case, concluded that the second applicant should not have been involved in the proceedings and rejected the request of the second applicant to have the decision of the Kaunas Regional Court of 8 April 2002 quashed (see paragraph 6 above). The applicants appealed against this decision and on 9 August 2005 the Court of Appeal upheld the decision of the Kaunas Regional Court of 20 June 2005 not to quash the decision of the Kaunas Regional Court of 8 April 2002 regarding the payment of rent arrears, but observed that the second applicant should have been involved in the proceedings because that was the main reason for reopening the rent arrears case. The second applicant requested legal aid in order to prepare a cassation appeal against the Kaunas Regional Court’s decision of 20 June 2005 and the Court of Appeal’s decision of 9 August 2005. On 4 November 2005 his request was accepted by the Kaunas State Guaranteed Legal Aid Service (hereinafter “the Legal Aid Service”). The first applicant also requested legal aid to prepare comments on the second applicant’s cassation appeal. On 6 January 2006 her request was granted by the Legal Aid Service. On 20 March 2006 the Supreme Court examined the applicants’ cassation appeals, observing that the reopened case concerned only procedural aspects and that the merits had not been examined at all. The case was returned to the Kaunas Regional Court for fresh examination.

11. On 12 August 2005 both applicants requested legal aid to prepare claims with regard to the bankruptcy and rent arrears proceedings. On 7 September 2005 both applicants’ requests were denied because their claims were directly related to their commercial or independent professional activities. The applicants started administrative proceedings, complaining about the decisions of the Legal Aid Service not to provide them with legal assistance. The applicants asked for legal aid in the administrative proceedings, which they were given on 2 November 2005 and 6 January 2006 respectively. On 10 February and 1 August 2006 respectively the Kaunas Regional Administrative Court and the Supreme Administrative Court dismissed as unsubstantiated the applicants’ claims concerning the refusal to grant them legal aid, holding that under domestic law, legal aid was unavailable if the claims were directly related to a person’s commercial or independent professional activities (see paragraph 28 below).

12. On 4 April 2006 the Kaunas Regional Court decided to separate the bankruptcy case from the rent arrears case.

13. On 8 May 2006 both applicants requested that the Court of Appeal transfer the bankruptcy and rent arrears cases to the Vilnius Regional Court, but their request was dismissed on 15 May 2006 by the Court of Appeal.

14. On 22 May 2006 both applicants submitted two requests for legal aid: one concerned the preparation of the cassation appeal against the Court of Appeal’s refusal to transfer their cases to the Vilnius Regional Court and the other concerned the reopening of the bankruptcy case. The requests were rejected on 25 May 2006 by the Legal Aid Service as their claims were directly related to their commercial or independent professional activities (see paragraph 28 below). The applicants started administrative proceedings, complaining about the decisions of the Legal Aid Service not to provide them with legal assistance. On 28 September 2006 and 6 April 2007 respectively their complaints were dismissed by the Kaunas Regional Administrative Court and the Supreme Administrative Court, which again held that under domestic law, legal aid was unavailable if the claims were directly related to a person’s commercial or independent professional activities. The applicants asked for the proceedings to be reopened but their request was dismissed on 8 May 2008 by the Supreme Administrative Court.

15. On 12 July 2006 the second applicant submitted a request to have the examination of the rent arrears case suspended because the administrative proceedings concerning legal aid were ongoing (see paragraph 11 above). His request was granted by the Kaunas Regional Court the same day. In the meantime the applicants submitted a request to the Kaunas Regional Court and asked for the time-limit for submissions in the rent arrears case to be extended and the legality of the refusal of the legal aid to be examined. On 22 August 2006 the time-limit for submissions was extended but the legality of the refusal to grant them legal aid was not examined as it was considered to be outside the court’s jurisdiction.

16. On 5 July 2006 both applicants submitted a request for legal aid for their representation in the reopened rent arrears case. It was rejected on 12 July 2006 by the Legal Aid Service as their claim was directly related to their commercial or independent professional activities (see paragraph 28 below). The applicants started administrative proceedings, complaining about the decision of the Legal Aid Service not to provide them with legal assistance. On 22 December 2006 and 8 June 2007 respectively their complaint was dismissed by the Kaunas Regional Administrative Court and the Supreme Administrative Court, which again held that under domestic law, legal aid was not available if the claims were directly related to a person’s commercial or independent professional activities. The applicants asked for the proceedings to be reopened but their request was dismissed on 8 May 2008 by the Supreme Administrative Court.

17. The examination of the rent arrears case was resumed but was suspended by the Kaunas Regional Court on 5 September 2006 due to the ongoing administrative proceedings concerning the legal aid (see paragraph 16 above).

18. After the examination of the rent arrears case was resumed on 28 June 2007 by the Kaunas Regional Court, the applicants asked for adjournments numerous times due to their own inability to be present. All their requests were granted by the Kaunas Regional Court.

19. On 21 November 2007 both applicants submitted a request to the Legal Aid Service for legal aid for their representation in the reopened rent arrears case but their requests were dismissed on 27 November 2007 as their claim was directly related to their commercial or independent professional activities (see paragraph 28 below). The applicants started administrative proceedings, complaining about the decision of the Legal Aid Service not to provide them with legal assistance. On 7 April 2008 and 6 February 2009 respectively their complaint was dismissed by the Kaunas Regional Administrative Court and the Supreme Administrative Court, which again held that under domestic law, legal aid was not available if the claims were directly related to the person’s commercial or independent professional activities.

20. On 20 December 2007 the Kaunas Regional Court examined the reopened rent arrears case and held that the first applicant’s company had to pay LTL 134,746 in unpaid rent and interest.

21. On 19 January 2008 both applicants appealed, asking for the examination of the rent arrears case to be suspended until the administrative proceedings concerning legal aid were concluded (see paragraph 19 above). Their request was granted on 6 May 2008 by the Kaunas Regional Court.

22. On 3 June 2009 the Court of Appeal resumed the rent arrears case and scheduled a hearing for 6 October 2009. On 25 June 2009 the applicants were sent a notice informing them that the case would be examined in a “public hearing in writing” (viešame teismo posėdyje rašytinio proceso tvarka) on 6 October 2009. The applicants responded on 2 October 2009 (as indicated on the post mark) that they would not be able to attend the hearing because on 30 September 2009 they were sent a notice that another case involving the first applicant was being examined at the same time that day. This letter was received by the Court of Appeal on 7 October 2009. On 6 October 2009 the Court of Appeal held an oral hearing where none of the parties were present. It examined the case in the parties’ absence, holding that all the parties had been duly notified of the date and time of the hearing. On 23 October 2009 the applicants’ appeal was dismissed.

23. On 3 November 2009 both applicants submitted requests for legal aid for the preparation of a cassation appeal against the decision of 23 October 2009 of the Court of Appeal. Their requests were left unexamined on 6 November 2009 as they were considered to be analogous to the previously submitted and already rejected requests.

24. As a consequence, no cassation appeal was submitted because in accordance with the provisions of domestic law, such appeals had to be submitted by a lawyer.

25. The applicants brought proceedings against the State for damages, alleging that the decisions of the domestic courts had been unlawful. They submitted numerous complaints, including about being deprived of legal representation. On 3 March and 17 November 2014 respectively their complaints were rejected by the Vilnius Regional Court and the Court of Appeal. Their cassation appeal was rejected on 24 February 2015 by the Supreme Court.

II. RELEVANT DOMESTIC LAW AND PRACTICE

26. At the material time, the relevant provisions of the 1964 Code of Civil Procedure, in force until 1 January 2003, provided:

Article 42 - Representation in court

“Individuals may conduct cases in court themselves or through a representative. Personal participation in a hearing shall not deprive a person of the right to have a representative.

Article 47 - Representation of legal entities in court

1. Cases involving legal entities shall be conducted in court by its representatives or members in accordance with the law and its incorporation documents.

2. The head of a State enterprise, collective farm or other cooperative or public organisation who is representing a legal entity as its member shall provide the court with documents defining his rights and obligations.

Article 48 - Individuals eligible to act under authorisation as representatives in court

1. Representatives in court under authorisation may be:

(1) lawyers, assistant lawyers and other individuals with a licence to conduct legal activities issued by the Ministry of Justice;

(2) employees of enterprises and organisations in cases involving those legal entities;

(3) representatives of trade unions in cases involving their members;

(4) representatives of organisations authorised to represent their members by law or their documents;

(5) representatives of State bodies, enterprises and organisations authorised to represent the State and other individuals and protect their rights and interests;

(6) one claimant with the authorisation of the other claimants;

(7) other individuals who have provided documents containing the wishes of the person who has given them authorisation.

...

Article 128 - Court summons and notices

1. Parties to the proceedings and their representatives shall be notified by summons or notice of the time and place of a hearing or specific procedural steps. Court summons are also sent to the witnesses, experts and translators.

2. A summons must be served on parties to the proceedings by such date that they have sufficient time to arrange to attend court and prepare for the case.

...

Article 130 - Delivery of a summons

Summons are delivered by post or via messengers. The time of delivery is marked on the summons and on the signed return receipt to the court.

...

Article 181 - Consequences of failure by the parties to appear in court

...

2. If a defendant fails to appear in court because he was not duly notified of the time and place, the court shall adjourn the hearing. If a defendant fails to appear in court and he was duly notified of the time and place, and there are no comments regarding the complaint, the defendant shall be deemed to have accepted the claim and the case shall be examined in his absence. The case may be adjourned at the request of the defendant if he provides documents providing the reasons for his failure to appear prior to it starting and the court accepts the reasons as important. If the court decides that the participation of the defendant is required and he, despite being duly summoned, repeatedly fails to appear, the case shall be examined in his absence.

...

Article 184 - Adjournment of proceedings

A court shall be entitled to adjourn proceedings in the cases set forth by this Code as well as in cases where a case cannot be heard because a translator/interpreter cannot appear or a counterclaim has been filed, or new evidence is required or for other important reasons.

...

Article 239 - Obligatory suspension of proceedings

A court must suspend the proceedings:

...

(4) if a specific case cannot be heard until other pending civil, criminal or administrative proceedings are decided...

...

Article 331 - Preparation for examination of the case

...

2. In the event of an oral hearing, the parties to the proceedings shall be informed of the time and place. If they fail to appear, the court shall not be prevented from examining the case.

Article 333 - Decision without an oral hearing

1. Judges may examine an appeal without an oral hearing if:

(1) the court of first instance which accepted the appeal has to refuse to accept it. In such cases the appellate court shall discontinue the appeal proceedings and adopt an order for the return of any court fees;

(2) it finds that there are grounds for the decision of the court of first instance to be declared invalid;

(3) the court of first instance which decided to accept the appeal must order the claimant to correct mistakes in the appeal. In such cases the appeal and case file must be returned to the court of first instance that takes the action enumerated in Article 327 § 1.

...

Article 371²¹- Time-limits for submitting an application

1. An application to reopen the proceedings may be submitted within three months of the date the applicant became aware or had to become aware of the circumstances providing the grounds for reopening the proceedings.

...”

27. At the material time, the relevant provisions of the Code of Civil Procedure, in force since 1 January 2003 provided:

Article 51 - Representation in court

“1. Individuals may conduct cases in court themselves or through a representative. Personal participation in a hearing shall not deprive a person of the right to have a representative...

2. A representative’s appearance in court shall be considered proper participation in a hearing, except in cases where the court considers the represented person’s personal participation in the proceedings essential.

3. For cases under this Code and the Civil Code, an individual shall have a lawyer.

Article 55 - Representation of legal entities in court

1. Cases involving legal entities shall be conducted in court by its representatives or members in accordance with the law and its incorporation documents, the rights granted to it and its obligations. In such cases, a case will be considered to be conducted by the legal entity itself.

2. Representatives of legal entities in court may be employees of respective legal entities (in the appellate courts those holding a university degree in law), lawyers or assistant lawyers with the written consent of lawyers supervising the assistants’ training to represent [a party] in a specific case.

3. Other individuals that may represent a legal entity together with those specified in paragraphs 1 and 2 ... [are] non-legal professionals (auditors, accountants, tax advisors, patent attorneys etc.).

Article 56 - Individuals eligible to act under authorisation as representatives in court

1. Representatives in court under authorisation may be:

(1) lawyers;

(2) assistant lawyers with the written consent of lawyers supervising the assistants’ training to represent [a party] in a specific case;

(3) one claimant with the authorisation of the other claimants;

(4) individuals holding a university degree in law if they are representing their close relatives or spouse (partner)...

2. Other individuals may act as representatives together with those specified in paragraphs 1(1) and 1(2)...

Article 124 - Confirmation of service of a summons, notice or other court documents

...

4. Notices and other court documents shall be served by the means and procedure established by this Code without a return receipt being returned to the court...

Article 133 - Summons and notices

1. Parties to the proceedings shall be notified by summons or notice of the time and place of a hearing or specific procedural steps. After a party to the proceedings has been properly served with a summons, he shall be notified of the other hearings by notice...

2. A summons or notice must be served on parties to the proceedings by the procedure established in Articles 117 to 132 of this Code and by such date that they have sufficient time to arrange to attend court and prepare for the case...

Article 156 - Adjournment of proceedings

1. A court shall be entitled to adjourn proceedings in the cases set forth by this Code as well as in cases where a case cannot be heard because a translator/interpreter cannot appear or a counterclaim has been filed, or new evidence is required or for other important reasons (sickness absence, holidays, business trips, other business, participation of a party’s representative in other cases and other similar excuses are not generally considered important reasons)...

Article 163 - Obligatory suspension of proceedings

A court must suspend the proceedings:

...

(3) if a specific case cannot be heard until other pending civil, criminal or administrative proceedings are decided.

Article 246 - Consequences of failure by the parties and their representatives to appear in court

...

2. If a defendant fails to appear in court because he was not duly notified of the time and place and he does not have a representative, the court shall adjourn the hearing. A hearing shall also be adjourned in cases where a defendant is conducting the case through his representative but fails to appear in court because neither he nor his representative were duly notified of the time and place of the hearing. The hearing may also be deferred at the request of the defendant or his representative, if they provide documents justifying their absence prior to [it starting] and the court accepts their reasons for non-appearance as important (sickness absence, holidays, business trips, other business, participation of a party’s representative in other cases and other similar excuses are not generally considered important reasons). In any other cases the court shall, at the request of the claimant, pass a default judgment. If a claimant does not request a default judgment, the court may either leave the claim unexamined or decide it on the merits in accordance with the general rules of litigation...

Article 319 - Formation of the panel of judges and assignment of a hearing date

...

3. The parties to the proceedings shall be notified of the place and time of the hearing of an appeal case. If the case is being heard [in writing], the parties to the proceedings shall not be invited to the hearing and [it] shall take place in their absence. In the event of an oral hearing, the parties to the proceedings shall be summoned to the hearing but the case may still be heard in their absence...

Article 321 - Hearing a case by means of written proceedings

1. A panel of judges may decide an appeal [in writing] if:

(1) the court of first instance which accepted the appeal was required to refuse to accept it...

(2) it is established that there are grounds for the judgment of the court of first instance to be declared invalid...

Article 322 - Right of an appellant to request written proceedings

At the request of an appellant, an appeal may be decided in writing if the other parties to the proceedings did not object to the appeal in their responses.

Article 347 - Contents of a cassation appeal

...

3. Cassation appeals may be submitted by a lawyer. Employees of a legal entity holding a university degree in law may submit a cassation appeal on behalf of the legal entity. If the applicant is an individual holding a university degree in law, he may submit a cassation appeal himself...

Article 368 - Time-limits for submitting an application

1. An application to reopen the proceedings can be submitted within three months from of the date the applicant became aware or had to become aware of the circumstances providing the grounds for reopening the proceedings.

...”

28. At the material time, the relevant parts of the State Guaranteed Legal Aid Act provided:

Article 2 - Main notions of the legislation

“...

2. Primary legal aid - legal information, legal consultations provided in accordance with this [Act] and preparing documents for State institutions, excluding procedural documents. Such legal aid also covers advice on settling disputes out-of-court, actions on friendly settlements of disputes and preparing friendly settlement agreements.

3. State guaranteed legal aid - State guaranteed defence and representation in the procedure of cases.

...

Article 11 - People eligible for State Guaranteed Legal Aid

...

5. Secondary legal aid shall not be granted if:

...

4) the request concerns a claim directly related to the applicant’s commercial or independent professional activities...”

Article 18 - Procedure for providing secondary legal aid

...

2. ...Legal Aid Service decisions may be appealed against in accordance with the procedure laid down in the Administrative Procedure Act...”

29. At the material time, the relevant part of Article 7 of the Companies Act, in force until 2004, provided:

Article 7 - Individual companies

“An individual company belongs to one individual as his or her property or to several individuals as their joint property... An individual company does not have the rights of a legal entity and its property is inseparable from the owner’s property. The owner is liable for the obligations of an individual company with all his or her personal property...”

30. At the material time, the relevant part of Article 2 of the Individual Companies Act, in force since 2004, provided:

Article 2 - Concept of an individual company

“1. An individual company is a private legal entity with unlimited liability...”

31. The Supreme Court has noted on several occasions that an individual company is a private legal entity with unlimited liability, and that if it does not have sufficient assets to fulfil its obligations the owner has to account for them from his own personal assets (for example, decisions of 20 July 2010 (no. 3K-3-337/2010) and 7 December 2012 (no. 3K-7-400)).

III. RELEVANT EUROPEAN UNION LAW AND PRACTICE

32. Article 47 of the Charter of Fundamental Rights of the European Union, which was proclaimed on 7 December 2000 and came into force on 1 December 2009, provides:

“...

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.”

33. In its judgment in DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Germany (no C-279/09) of 22 December 2010, the Court of Justice of the European Union held that:

“40. ...the right to an effective remedy before a court, enshrined in Article 47 of the Charter, is to be found under Title VI of that Charter, relating to justice, in which other procedural principles are established which apply to both natural and legal persons.

...

42. Similarly, the inclusion of the provision relating to the grant of legal aid in the article of the Charter relating to the right to an effective remedy indicates that the assessment of the need to grant that aid must be made on the basis of the right of the actual person whose rights and freedoms as guaranteed by EU law have been violated, rather than on the basis of the public interest of society, even if that interest may be one of the criteria for assessing the need for the aid.

43. The other provisions of EU law ... do not make provision for legal aid to be granted to legal persons. However, no conclusion of general application can be drawn from this, since it is apparent, first, from the scope of Directive 2003/8 and, second, from the jurisdiction of the General Court and of the Civil Service Tribunal that those provisions relate to specific categories of litigation.

The Court of Justice of the European Union also held that:

“52. It is apparent from the examination of the case-law of the European Court of Human Rights that the grant of legal aid to legal persons is not in principle impossible, but must be assessed in the light of the applicable rules and the situation of the company concerned.

53. The subject matter of the litigation could be taken into consideration, in particular, its economic importance.

54. For the purposes of taking account of the financial situation of an applicant, where that applicant was a legal entity, consideration could be given, inter alia, to the form of the company (whether a capital company or partnership, limited liability company or otherwise), the financial situation of its shareholders, the assets of the company, the manner in which it was set up and, more specifically, the relationship between the resources allocated to it and the intended activity.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

34. The applicants complained that the refusal of legal aid in the proceedings concerning the activities of their company had deprived them of effective access to court. They also complained that they had not been properly notified of the Court of Appeal hearing of 6 October 2009. They relied on Article 6 § 1 of the Convention, the relevant part of which reads:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”

A. Admissibility

35. The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Refusal of legal aid

(a) The parties’ submissions

36. The Government stated that there was no explicit obligation under the Convention to make legal aid available in civil disputes, but also accepted that the denial of legal aid could, in certain circumstances, amount to a failure to ensure a fair hearing under Article 6 § 1.

37. They emphasised that there was a clear legal framework governing the grant of legal aid. They also claimed that legal aid was a measure of “social assistance which should not be extended to companies”. However, they submitted that even the owners of private unlimited liability companies could be granted legal aid if their claims were not directly related to economic profit and commercial activities. They also argued that because of the limited resources of legal aid it was reasonable to limit its availability and not to place a disproportionate burden on the State. There were other procedural safeguards available, such as exemption from court fees, deferral of their payment and the ability to receive primary legal aid and conclude pro bono agreements.

38. To further support their arguments, the Government submitted that there was no consensus among the State Parties to the Convention as regards the granting of legal aid to legal entities. Nor could such an obligation be derived from international practice or any joint constitutional tradition of the EU Member States. In this connection, they relied on the Court of Justice of the European Union’s ruling in DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Germany (case no. C-279/09) (see paragraph 33 above).

39. The Government also stated that the applicants’ conduct had also contributed to the complexity of the case and that the domestic courts had taken into account their ability to represent themselves, namely the fact that throughout the proceedings until the reopening of the case the first applicant had been represented by a lawyer she had hired and when applying for the proceedings to be reopened the second applicant had also been represented by a lawyer he had hired. The Government also stated that the rent arrears proceedings could not be considered as having caused serious consequences for the applicants. They also relied on the fact that the claimant company had not continuously been represented by a legal professional.

40. The Government also contended that legal aid had been granted to both applicants when they had complained of a violation of their right to a fair trial and about not being provided with legal aid. Moreover, they stated that the requirement to be assisted by a lawyer in the cassation proceedings was not contrary to requirements of Article 6 of the Convention. The fact that the applicants were rejected legal aid to prepare their cassation appeal did not impair their right of access to court as their cassation appeal would have probably been rejected as not raising important legal issues.

41. The applicants accepted that there was no automatic right under the Convention to legal aid or legal representation in civil proceedings. However, they considered that in their case the assistance of a lawyer was indispensable for there to be an effective access to court. They claimed that they had a company with unlimited liability and therefore the court proceedings had immensely affected their personal interests and personal property. They further stated that the court proceedings regarding the payment of the rent arrears were indispensably linked to their main source of income, which was the activity of the first applicant’s company. Moreover, they claimed that they did not have the financial means to pursue the litigation themselves and the mere fact that they had been consulted by private lawyers at the outset of the proceedings and that their claims were directly related to their commercial or independent professional activities did not justify the refusal of legal aid.

42. The applicants also claimed that the fact that the claimant company had not been represented continuously throughout the proceedings by a legal professional was irrelevant because the company had always had a representative of some sort.

(b) The Court’s assessment

i. General principles

43. The Court points out that the Convention is intended to guarantee practical and effective rights. This is particularly so of the right of access to court in view of the prominent place held in a democratic society by the right to a fair trial. It is central to the concept of a fair trial, in civil as in criminal proceedings, that a litigant is not denied the opportunity to present his case effectively to the courts and that he is able to enjoy equality of arms with the opposing side (see Steel and Morris v. the United Kingdom, no. 68416/01, § 59, ECHR 2005-II, N.J.D.B. v. the United Kingdom, no. 76760/12, § 71, 27 October 2015, and Kaba v. Turkey, no. 1236/05, § 19, 1 March 2011). Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights. Undoubtedly, the institution of a legal aid scheme, constitutes one of those means (see Steel and Morris, cited above, § 60).

44. The right of access to a court is not, however, absolute and may be subject to limitations (see Jones and Others v. the United Kingdom, nos. 34356/06 and 40528/06, § 186, ECHR 2014). Where an individual’s access is limited either by operation of law or in fact, the restriction will not be incompatible with Article 6 where the limitation did not impair the very essence of the right and where it pursued a legitimate aim, and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see P., C. and S. v. the United Kingdom, no. 56547/00, § 90, ECHR 2002-VI, and Agromodel OOD v. Bulgaria, no. 68334/01, § 37, 24 September 2009).

45. The Court further recalls that there is no obligation under the Convention to make legal aid available for all disputes in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance under certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (see Del Sol v. France, no. 46800/99, § 20, ECHR 2002-II). Moreover, since the right of access to court is not absolute, it may be acceptable to impose conditions on the grant of legal aid, such as the financial situation of the litigant. Nevertheless, the question of whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the specific facts and circumstances of each case and will depend, inter alia, on the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively (see Steel and Morris, cited above, § 61). In this context, it must be ascertained whether the applicant’s appearance before the courts without the assistance of a lawyer would be effective, in the sense of whether he or she would be able to present his or her case properly and satisfactorily (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). Regard must also be had to the overall context and, in particular, the extent to which the applicant has already enjoyed access to court and equality of arms in the proceedings (see N.J.D.B. v. the United Kingdom, cited above, § 74).

46. As the Court has already had the occasion to observe, there does not appear to be a consensus or even a consolidated tendency among the States Parties to the Convention as regards the granting of legal aid to legal entities in civil disputes. The law of a substantial number of States does not provide any form of legal aid to them (see VP Diffusion Sarl v. France (dec.), no. 14565/04, 26 August 2008, and Granos Organicos Nacionales S.A. v. Germany, no. 19508/07, §§ 17-18 and 47, 22 March 2012).

ii. Application of the general principles to the facts of the case

47. The Court notes from the outset that it is not its task here to examine in abstracto the provisions of the domestic law related to the scheme of legal aid. It must limit its analysis to the question of whether or not the manner in which they were applied to, or affected the applicant, gave rise to a violation of the Convention (see, mutatis mutandis, Zavodnik v. Slovenia, no. 53723/13, § 74, 21 May 2015).

48. It is not in dispute that the applicants could not afford to pay for lawyers themselves because at the beginning of the rent arrears proceedings and some administrative proceedings concerning the refusal of legal aid the Legal Aid Service decided that their income was low enough to provide them with a lawyer (see paragraphs 10 and 11 above).

49. Against this background, the Court must assess the extent to which the applicants were able to amount an effective defence despite having no legal aid. They appear to have been articulate, as they managed to submit their appeals even without a lawyer. The applicants did receive some help on the legal and procedural aspects of the case because their initial pleadings were drafted by lawyers. As is evident from the various decisions taken during the proceedings, the applicants submitted a large amount of material to the courts and made numerous submissions on the issues of the case. The way in which they conducted their defence does not indicate that they were unable to present their case properly.

50. As regards what was at stake in the dispute, while it is true that the applicants did not choose to bring the rent arrears proceedings - they were merely defendants when they began (compare and contrast N.J.D.B. v. the United Kingdom, cited above) - they later submitted numerous counterclaims to the courts (compare and contrast McVicar v. the United Kingdom, no. 46311/99, § 51, ECHR 2002-III). Moreover, the financial consequences for them were quite significant, the amount they were ordered to pay being LTL 211,883. Bearing in mind that the first applicant’s company went bankrupt and that both applicants were working for it, the amount was high as they did not have any other source of income.

51. As to the complexity of the proceedings, the Court notes that they do not seem to have been sufficiently complex at the outset, but when the second applicant submitted a request for them to be reopened they appear to have become more complicated (compare and contrast McVicar, cited above, § 55). However, because the applicants lodged numerous complaints with the domestic courts about the outcome of the rent arrears proceedings, the refusal to grant them legal aid and a number of procedural issues, it is true that they themselves contributed to the complexity and length of the whole set of proceedings. Moreover, the Court finds it difficult to accept that the second applicant did not know about the rent arrears proceedings, even though he claimed that the profit from the first applicant’s company had been his main source of income and he had been employed there.

52. The Court further notes that Article 11 of the State Guaranteed Legal Aid Act (see paragraph 28 above) expressly prohibited the provision of legal aid to legal entities. The Government submitted that the prohibition was aimed at restricting litigation at the State’s expense in relation to commercial activities carried out at the own risk of owners of private unlimited liability companies. However, the Court does not find it necessary to assess the legitimacy of the aim pursued by the disputed prohibition, because it considers that, in any event, the restriction on the applicants’ right of access to a court did not satisfy the requirement of proportionality, for the reasons set out below.

53. In determining this question, the Government laid emphasis on the procedural safeguards available in order to ensure the effective access to court by private companies, such as the ability to receive primary legal aid (see paragraph 28 above), pay the court fees in part and conclude pro bono agreements. The Government also strongly relied on the fact that the claimant company had not been continuously represented by a legal professional. Nevertheless, taking also into account the fact that the applicants were not provided with legal aid because of a rigid application of the domestic provisions without any consideration of their particular circumstances, the Court considers that the safeguards referred to by the Government were not any substitute for competent and sustained representation by an experienced lawyer familiar with the case (see, a contrario, N.J.D.B. v. the United Kingdom, cited above, § 78). The fact that the claimant company was not continuously represented by a legal professional cannot be regarded as equal to the applicants being refused legal aid and cannot be considered as guaranteeing the applicants an effective defence and an ability to present their case properly and satisfactorily (see paragraph 45 above).

54. In conclusion, the Court finds that by being denied legal aid to prepare claims with regard to the bankruptcy and rent arrears proceedings (see paragraph 11 above), to prepare the cassation appeal against the Court of Appeal’s refusal to transfer the applicants’ cases to the Vilnius Regional Court and to prepare the claim concerning the reopening of the bankruptcy case (see paragraph 14 above) and for their representation in the reopened rent arrears case on several occasions (see paragraphs 16 and 19 above), the applicants were deprived of an adequate opportunity to present their case effectively to the domestic courts.

There has, accordingly, been a violation of Article 6 § 1 of the Convention on account of refusal of legal aid.

2. Lack of proper notification of a hearing before the appellate court

(a) The parties’ submissions

55. In the present case, the applicants complained that although they had received a notice informing them that the case would be examined “in a public hearing in writing” and had responded that they would not be able to participate, the Court of Appeal still held an oral hearing in their absence. They claimed that they had not had a lawyer at the time and that the notice of the hearing had contained a clerical error in it, based on which they had been misled and could not have presumed that there would be an oral hearing.

56. The Government acknowledged that the notice in question had contained a clerical error because it had indicated that the case would be heard in a public hearing in writing (see paragraph 22 above) instead of a public oral hearing. However, they argued that this did not preclude the applicants from being informed of the oral hearing because they had not asked their case to be examined in writing and the Court of Appeal had not adopted such a decision. The Government also argued that the applicants had received the notice on 25 June 2009 that a hearing would take place on 6 October 2009 but had only sent a letter to the Court of Appeal about their inability to participate on 2 October 2009 (received by the court on 7 October 2009). The Government also stated that the second applicant had not been summoned to the other proceedings and the fact that there had been another hearing at the same time that day should not have prevented him from participating in the hearing.

(b) The Court’s assessment

i. General principles

57. The Court notes that the possibility for the parties to take part in proceedings flows from the object and purpose of Article 6 of the Convention, taken as a whole (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 76, 4 March 2014). Questions of personal presence, the form of the proceedings (oral or written) and so on should be analysed in the broader context of the “fair trial” guarantee of Article 6 (see Larin v. Russia, no. 15034/02, § 36, 20 May 2010). The Court should verify whether an applicant - a party to the civil proceedings - has been given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent (ibid., § 36, with further references therein).

58. The Court also considers that the right to a public hearing would be devoid of substance if a party to the case were not apprised of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise the right to appear established in the domestic law (see Yakovlev v. Russia, no. 72701/01, § 21, 15 March 2005). The Court also notes that neither the letter nor the spirit of Article 6 of the Convention prevent a person from waiving, of his or her own free will, the safeguards of a fair trial. However, such a waiver must be established in an unequivocal manner and be attended by the minimum safeguards commensurate with its importance (see, among other authorities, Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII).

59. The Court reiterates that although there is no absolute right to be present at a hearing concerning non-criminal matters, personal participation can be considered necessary in cases where the character and lifestyle of the person concerned is directly relevant to the subject matter of the case, or where the decision involves the person’s conduct (see Karpenko v. Russia, no. 5605/04, § 90, 13 March 2012, and Buterlevičiūtė, v. Lithuania, no. 42139/08, § 64, 12 January 2016).

ii. Application of the general principles to the facts of the case

60. The Court observes that Lithuanian law provided for an oral hearing before the appellate courts, however, the parties’ attendance was not mandatory and if they did not appear at a hearing after being duly notified, the court could proceed with the examination of the appeal. The Court has already held that these provisions were not, in themselves, incompatible with the fair trial guarantees of Article 6 § 1 (see Buterlevičiūtė, cited above, § 57).

61. The Court notes that the applicants were sent a notice on 25 June 2009 that their case would be examined “in a public hearing in writing” on 6 October 2009 (see paragraph 22 above). Although the notice contained an error in it, there is nothing in the case file to suggest that the applicants did not understand that there would be an oral hearing. This is all the more so because when they were informed that the first applicant was concerned by another hearing scheduled on the same day, they decided not to appear before the appellate court.

62. At the same time, the Court notes that whereas the applicants were informed about the other hearing on 30 September 2009, they only decided to inform the Court of Appeal of their inability to participate in the contested hearing at 4.31 p.m. on 2 October 2009, which was a Friday. Although the Court cannot conclude that the applicants waived their right to participate in the said proceedings, it is obvious that they demonstrated a certain lack of diligence by sending a letter informing the court that they would not be able to be present only four days beforehand, bearing in mind that two of those four days fell on a weekend. Moreover, the Court is not convinced that the second applicant’s belief that his presence was needed in another hearing was a sufficient ground not to participate in the hearing of 6 October 2009, although he was not even summoned to the other hearing.

63. The Court further notes that neither the applicants nor the claimant company or its representative were present at the hearing of the Court of Appeal on 6 October 2009, therefore none of the parties were able to make oral submissions to the court. However, it also notes that the applicants had the opportunity to present their arguments to the court of first instance in several oral hearings. Moreover, in the present case, the subject matter was the payment of rent arrears; the applicants’ character and lifestyle were not decisive factors (see, a contrario, Buterlevičiūtė, cited above, § 64, with further references therein). The Court therefore considers that the substance of the case made the applicants’ personal participation in the hearing before the Court of Appeal unnecessary. For all the above reasons, the latter could not be held responsible for proceeding with the examination of the appeal in the applicants’ absence, despite the error in the notice about the hearing.

64. In these circumstances, the Court concludes that there has been no violation of the applicants’ right to a fair hearing enshrined in Article 6 § 1 of the Convention on account of a lack of proper notification of a hearing before the appellate court.

II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 6 § 1 OF THE CONVENTION

65. The applicants submitted that they had been discriminated against when they had been refused legal aid, discrimination which was based, in their view, on their belonging to a private unlimited liability company. They relied on Article 6 § 1 in conjunction with Article 14 of the Convention, which reads as follows:

“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.”

66. The Government contested that argument.

67. The Court notes that this complaint is linked to the one examined above on account of the refusal of legal aid to the applicants, and must therefore likewise be declared admissible.

68. The Court takes the view that since it has found a breach of Article 6 § 1 of the Convention with regard to the refusal to provide the applicants legal aid, it is not necessary to examine whether there has been a violation of Article 14 taken in conjunction with Article 6 § 1 of the Convention with regard to the refusal of legal aid based solely on their belonging to a private unlimited liability company.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

69. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

70. The applicants claimed 62,452 euros (EUR) in respect of pecuniary damage and EUR 624,521 in respect of non-pecuniary damage.

71. The Government contested those claims as excessive and unsubstantiated.

72. The Court notes that just satisfaction can be awarded in so far as the damage is the result of a violation found, and that no award can be made for damage caused by events or situations which have not been found to constitute a violation of the Convention, or for damage related to complaints declared inadmissible. The Court finds that although the applicants certainly suffered some damage, it cannot be attributed to the refusal of legal aid alone. In view of this, and in view of the fact that the proceedings in the remaining aspects, save the effective access to court, were fair, the Court rejects the applicants’ claim in respect of pecuniary damage.

73. On the other hand, the Court considers that the applicants must have suffered anxiety and distress as a result of the violation found in the present judgment. However, it finds the amount claimed excessive. Making its award on an equitable basis, the Court awards the applicants EUR 3,000 in respect of non-pecuniary damage.

B. Costs and expenses

74. The applicants also claimed EUR 1,250 for the costs and expenses incurred before the Court.

75. The Government contested that claim. They indicated that the applicants had chosen to pay their lawyer in instalments and had not made the final payment yet, therefore, the expenses could not be considered to have actually been incurred.

76. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 500 covering costs for the proceedings before the Court, plus any tax that may be chargeable on that amount.

C. Default interest

77. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 6 § 1 of the Convention with regard to the refusal to provide the applicants legal aid;

3. Holds that there has not been a violation of Article 6 § 1 of the Convention with regard to a lack of proper notification of a hearing before the appellate court;

4. Holds that there is no need to examine the complaint under Article 14 taken in conjunction with Article 6 § 1 of the Convention;

5. Holds,

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 500 (five hundred euros), plus any tax that may be chargeable, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli András Sajó
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> URBSIENE AND URBSYS v. LITHUANIA - 16580/09 (Judgment (Merits and Just Satisfaction) : Court (Fourth Section)) [2016] ECHR 964 (08 November 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/964.html Cite as: [2016] ECHR 964, CE:ECHR:2016:1108JUD001658009, ECLI:CE:ECHR:2016:1108JUD001658009