{"id":23113,"date":"2023-08-25T18:46:00","date_gmt":"2023-08-25T18:46:00","guid":{"rendered":"https:\/\/legalblog.ie\/?p=23113"},"modified":"2023-08-27T16:00:38","modified_gmt":"2023-08-27T16:00:38","slug":"access-to-court","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/access-to-court\/","title":{"rendered":"Access to Court [ECHR]"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Access_to_Court\" title=\"Access to Court\">Access to Court<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Limits\" title=\"Limits\">Limits<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Effective\" title=\"Effective\">Effective<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Court_Fees\" title=\"Court Fees\">Court Fees<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Time_Limits\" title=\"Time Limits\">Time Limits<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Delay\" title=\"Delay\">Delay<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Other_Limits_on_Access\" title=\"Other Limits on Access\">Other Limits on Access<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Formalism\" title=\"Formalism.\">Formalism.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Proportionate_Restrictions\" title=\"Proportionate Restrictions\">Proportionate Restrictions<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Various_Limitations\" title=\"Various Limitations\">Various Limitations<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Immunity_International_Organisations\" title=\"Immunity International Organisations\">Immunity International Organisations<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/access-to-court\/#State_Immunity\" title=\"State Immunity\">State Immunity<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-13\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Parliamentary_Immunity\" title=\"Parliamentary Immunity.\">Parliamentary Immunity.<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-14\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Waiver\" title=\"Waiver\">Waiver<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-15\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Costs\" title=\"Costs\">Costs<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-16\" href=\"https:\/\/legalblog.ie\/access-to-court\/#Effectiveness_of_the_Legal_Aid\" title=\"Effectiveness of the Legal Aid\">Effectiveness of the Legal Aid<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Access_to_Court\"><\/span>Access to Court<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Article 6.1 implies a right of access to a court or equivalent tribunal. This implies the right to commence and take proceedings; Golder v UK.<\/p>\n<p>The right of access to a court for the purposes of Article 6 was defined in Golder v. the United Kingdom, 1975, \u00a7\u00a7 28-36 (see, as a recent authority, Grz\u0119da v. Poland [GC], 2022, \u00a7\u00a7 342-343). Referring to the principles of the rule of law and the avoidance of arbitrary power which underlie the Convention, the Court held that the right of access to a court was an inherent aspect of the safeguards enshrined in Article 6 (Grz\u0119da v. Poland [GC], 2022 , \u00a7 298; Zubac v. Croatia [GC], 2018, \u00a7\u00a7 76 et seq.).<\/p>\n<p>Where there is no access to an independent and impartial court, the question of compliance with the rule of law will always arise (ibid., \u00a7 343). Thus, in order for national legislation excluding access to a court to have any effect under Article 6 \u00a7 1 in a particular case, it should be compatible with the rule of law (ibid., \u00a7 299, in the context of the examination of the second condition of the Vilho Eskelinen test).<\/p>\n<p>The right to a fair trial, as guaranteed by Article 6 \u00a7 1, requires that litigants should have an effective judicial remedy enabling them to assert their civil rights (Na\u00eft-Liman v. Switzerland [GC], 2018, \u00a7 112; B\u011ble\u0161 and Others v. the Czech Republic, 2002, \u00a7 49).<\/p>\n<p>Everyone has the right to have any claim relating to his \u201ccivil rights and obligations\u201d brought before a court or tribunal. In this way Article 6 \u00a7 1 embodies the \u201cright to a court\u201d, of which the right of access, that is, the right to institute proceedings before courts in civil matters, constitutes one aspect (Na\u00eft-Liman v. Switzerland [GC], 2018, \u00a7 113; Golder v. the United Kingdom, 1975, \u00a7 36; and case-law references cited). Article 6 \u00a7 1 may therefore be relied on by anyone who considers that an interference with the exercise of one of his or her civil rights is unlawful and complains that he or she has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 \u00a7 1.<\/p>\n<p>Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or to the scope of the asserted civil right, Article 6 \u00a7 1 entitles the individual concerned \u201cto have this question of domestic law determined by a tribunal\u201d (Z and Others v. the United Kingdom [GC], 2001, \u00a7 92; Markovic and Others v. Italy [GC], 2006, \u00a7 98). The refusal of a court to examine allegations by individuals concerning the compatibility of a particular procedure with the fundamental procedural safeguards of a fair trial restricts their access to a court (Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 2016, \u00a7 131).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Limits\"><\/span>Limits<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The \u201cright to a court\u201d and the right of access are not absolute. They may be subject to limitations, but these must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired (Stanev v. Bulgaria [GC], 2012, \u00a7 229; Baka v. Hungary [GC], 2016, \u00a7 120; Na\u00eft-Liman v. Switzerland [GC], 2018, \u00a7 113; Philis v. Greece (no. 1), 1991, \u00a7 59; De Geouffre de la Pradelle v. France, 1992, \u00a7 28).6 Furthermore, a limitation will not be compatible with Article 6 \u00a7 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, \u00a7 89; Na\u00eft-Liman v. Switzerland [GC], 2018, \u00a7 115).<\/p>\n<p>Article 6 does not guarantee a right of access to a court with power to invalidate or override a law enacted by the legislature. Nevertheless, where a decree (issued on the basis of a law), decision or other measure, albeit not formally addressed to any individual natural or legal person, in substance does affect the \u201ccivil rights\u201d or \u201cobligations\u201d of such a person or of a group of persons in a similar situation, whether by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons, Article 6 \u00a7 1 may require that the substance of the decision or measure in question is capable of being challenged by that person or group before a \u201ctribunal\u201d meeting the requirements of that provision (Posti and Rahko v. Finland, 2002, \u00a7\u00a7 53-54). This applies a fortiori to a measure applying the relevant legislation to a particular case (Project-Trade d.o.o. v. Croatia, 2020, \u00a7\u00a7 67-68).<\/p>\n<p>Although the right to bring a civil claim before a court ranks as one of the \u201cuniversally recognised fundamental principles of law\u201d, the Court does not consider these guarantees to be among the norms of jus cogens in the current state of international law (Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 2016, \u00a7 136).In Baka v. Hungary [GC], 2016, the Court noted the growing importance which international and Council of Europe instruments, the case-law of international courts and the practice of other international bodies were attaching to procedural fairness in cases involving the removal or dismissal of judges, including the intervention of an authority independent of the executive and legislative powers in respect of every decision affecting the termination of office of a judge (\u00a7 121 \u2013 and see Grz\u0119da v. Poland [GC], 2022, \u00a7\u00a7 327 and 345). In K\u00f6vesi v. Romania, 2020, the same considerations were applied to prosecutors (\u00a7 156). See also, with regard to disciplinary matters, Ramos Nunes de Carvalho e S\u00e1 v. Portugal [GC], 2018, \u00a7\u00a7 176-186, and Emina\u011fao\u011flu v. Turkey, 2021, \u00a7\u00a7 99-104; and for a compulsory transfer, Bilgen v. Turkey, 2021, \u00a7 63.<\/p>\n<p>In its decision in Lovri\u0107 v. Croatia, 2017, concerning the expulsion of a member of an association, the Court noted that a restriction on the right of access to a court to challenge such a measure pursued the \u201clegitimate aim\u201d of maintaining the organisational autonomy of associations (referring to Article 11 of the Convention). The scope of judicial review of such a measure may be restricted, even to a significant extent, but the person concerned must nevertheless not be deprived of the right of access to a court (\u00a7\u00a7 71-73).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Effective\"><\/span>Effective<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The court proceedings must be effective. In Assanidze v Georgia a person acquitted of offences continued to be imprisoned. The guarantees afforded by Article 6 of the Convention would be illusory if a state&#8217;s national legal or administrative system allowed a final and binding decision to acquit to remain inoperative to the detriment of the person concerned.<\/p>\n<p>One of the fundamental aspects of the rule of law is the principle of legal certainty which requires amongst other things that where the courts make a final determination on an issue (and an appeal has concluded or time for taking it has passed), their ruling should not be called into question. Legal certainty presupposes respect for the principle of res judicata the principle of the finality of judgements.<\/p>\n<p>A higher court review should be exercised to correct errors and miscarriages of justice but not to carry out a fresh examination. The review should not be treated as an appeal in disguise and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from the principle is justified only when made necessary by circumstances of a substantial and compelling character.<\/p>\n<p>In Hornsby v Greece, the failure of a state to admit execution against itself in civil matters has been held to be a violation of Article 6.1.<\/p>\n<p>In Ryabykhv v Russia the court confirmed that a final decision after the exhaustion of appeal should not be subject to further proceedings.<\/p>\n<p>The right of access to a court must be \u201cpractical and effective\u201d (Zubac v. Croatia [GC], 2018, \u00a7\u00a7 76-79; Bellet v. France, 1995, \u00a7 38), in view of the prominent place held in a democratic society by the right to a fair trial (Prince Hans-Adam II of Liechtenstein v. Germany [GC], 2001, \u00a7 45). For the right of access to be effective, an individual must \u201chave a clear, practical opportunity to challenge an act that is an interference with his rights\u201d (Bellet v. France, 1995, \u00a7 36; Nunes Dias v. Portugal (dec.), 2003, regarding the rules governing notice to appear; Fazliyski v. Bulgaria, 2013, concerning the lack of judicial review of an expert assessment that was decisive for settling an employment dispute touching on national security; and, regarding the automatic suspension of a judge on account of exercising her right of appeal against a disciplinary decision to remove her from office, Camelia Bogdan v. Romania, 2020, \u00a7\u00a7 75-77), or a clear, practical opportunity to claim compensation (Georgel and Georgeta\u00a0Stoicescu v. Romania, 2011, \u00a7 74). This right is to be distinguished from the right guaranteed by Article 13 of the Convention7 (X and Others v. Russia, 2020, \u00a7 50).<\/p>\n<p>The rules governing the formal steps to be taken and the time-limits to be complied with in lodging an appeal or an application for judicial review are aimed at ensuring the proper administration of justice and compliance, in particular, with the principle of legal certainty (Ca\u00f1ete de Go\u00f1i v. Spain, 2020, \u00a7 36). That being so, the rules in question, or their application, should not prevent litigants from using an available remedy (Miragall Escolano and Others v. Spain, 2000, \u00a7 36; Zvolsk\u00fd and Zvolsk\u00e1 v. the Czech Republic, 2002, \u00a7 51). In particular, each case should be assessed in the light of the special features of the proceedings in question (Kur\u015fun v. Turkey, 2018, \u00a7\u00a7 103-104). In applying procedural rules, the courts must avoid both excessive formalism that would impair the fairness of the proceedings and excessive flexibility such as would render nugatory the procedural requirements laid down in statutes (Hasan Tun\u00e7 and Others v. Turkey, 2017, \u00a7\u00a7 32-33).<\/p>\n<p>In short, the observance of formalised rules of civil procedure, through which parties secure the determination of a dispute, is valuable and important as it is capable of limiting discretion, securing equality of arms, preventing arbitrariness, securing the effective determination of a dispute and adjudication within a reasonable time, and ensuring legal certainty and respect for the court (Zubac v. Croatia [GC], 2018, \u00a7 96). However, the right of access to a court is impaired when the rules cease to serve the aims of \u201clegal certainty\u201d and the \u201cproper administration of justice\u201d and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (Zubac v. Croatia [GC], 2018, \u00a7 98). Where inaccurate or incomplete information about time- limits has been supplied by the authorities, the domestic courts should take sufficient account of the particular circumstances of the case and not apply the relevant rules and case-law too rigidly (compare Gajtani v. Switzerland, 2014, and Clavien v. Switzerland (dec.), 2017).<\/p>\n<p>The right to bring an action or to lodge an appeal must arise from the moment the parties may effectively become aware of a legal decision imposing an obligation on them or potentially harming their legitimate rights or interests. Otherwise, the courts could substantially reduce the time for lodging an appeal or even render any appeal impossible by delaying service of their decisions. As a means of communication between the judicial body and the parties, service makes the court\u2019s decision and the grounds for it known to the parties, thus enabling them to appeal if they see fit (Miragall Escolano and Others v. Spain, 2000, \u00a7 37) or enabling an interested third party to intervene (Ca\u00f1ete de Go\u00f1i v. Spain, 2002, \u00a7 40, concerning an applicant who had not been summoned to give evidence as an interested party in proceedings whose outcome had caused her damage).<\/p>\n<p>More broadly, it is the domestic authorities\u2019 responsibility to act with the requisite diligence in ensuring that litigants are apprised of proceedings concerning them so that they can appear and defend themselves; notification of proceedings cannot be left entirely at the discretion of the opposing party (for a summary of the case-law, see Schmidt v Latvia, 2017, \u00a7\u00a7 86-90, 92 and 94-95, where the applicant had not been informed of divorce proceedings and the Court emphasised that given what was at stake in the proceedings, special diligence had been required on the authorities\u2019 part to ensure that the right of access to a court was respected).<\/p>\n<p>Where administrative decisions may potentially affect third parties, there must be a coherent notification system ensuring that the relevant data are accessible, within the relevant time-limit, to any potentially interested party (Stichting Landgoed Steenbergen and Others v. the Netherlands, 2021,<br \/>\n\u00a7 47, concerning a system of exclusively online notification\/communication, \u00a7\u00a7 50-53). A system of general publication of administrative decisions that strikes a fair balance between the interests of the authorities and of the persons concerned, in particular by affording the latter a clear, practical and effective opportunity to challenge the decisions, does not constitute a disproportionate interference with the right of access to a court (Geffre v. France (dec.), 2003).<\/p>\n<p>The case of Zavodnik v. Slovenia, 2015, concerned notification in the course of bankruptcy proceedings. The Court held that the manner in which notice of the hearing had been given (it had been announced on the court\u2019s notice board and in the Official Gazette) was inappropriate and had prevented the applicant from challenging the distribution of the estate (Zavodnik v. Slovenia, 2015,<br \/>\n\u00a7\u00a7 78-81).<\/p>\n<p>The access-to-court guarantees apply with equal strength to private disputes as to proceedings involving public authorities, although these factors may have a bearing on the assessment of the proportionality of the impugned measure (\u010coli\u0107 v. Croatia, 2021, \u00a7 53).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Court_Fees\"><\/span>Court Fees<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In the specific circumstances of a case, the practical and effective nature of the right of access to a court may be impaired, for instance:<\/p>\n<ul>\n<li>by the prohibitive cost of the proceedings in view of the individual\u2019s financial capacity:<\/li>\n<li>the excessive amount of security for costs in the context of an application to join criminal proceedings as a civil party (A\u00eft-Mouhoub v. France, 1998, \u00a7\u00a7 57-58; Garc\u00eda Manibardo v. Spain, 2000, \u00a7\u00a7 38-45);<\/li>\n<li>excessive court fees (Kreuz v. Poland, 2001, \u00a7\u00a7 60-67; Podbielski and PPU Polpure v. Poland, 2005, \u00a7\u00a7 65-66; Weissman and Others v. Romania, 2006, \u00a7 42; Georgel and Georgeta Stoicescu v. Romania, 2011, \u00a7\u00a7 69-70, and conversely, Reuther v. Germany (dec.), 2003).<\/li>\n<\/ul>\n<p>In these cases the Court considered the question of court fees that had been imposed prior to the institution of civil proceedings and had had the effect of hindering access to a court at first instance or at a subsequent stage of the proceedings for applicants who were unable to pay (contrast Tolstoy Miloslavsky v. the United Kingdom, 1995, \u00a7\u00a7 62-67, regarding the payment of a security as a precondition for lodging an appeal). The Court has pointed out that where there is a possibility of an exemption from stamp duty for a court application following an assessment of the applicant\u2019s financial situation, the authorities must give a decision promptly (La\u00e7i v. Albania, 2021, \u00a7\u00a7 53-60), and diligence is also expected of the applicant (Elcomp sp. z o.o. v. Poland, 2021, \u00a7 41).<\/p>\n<p>If the State has a system for calculating court fees linked to the amount in dispute, in order to comply with Article 6 the system must be sufficiently flexible to allow for the possibility of total or partial exemption from payment or a reduction in the amount payable (see Nalbant and Others v. Turkey, 2022, \u00a7\u00a7 39 and 40, and see \u00a7\u00a7 41-45, where the applicant company had been forced to abandon its appeal because it was unable to pay the fees imposed on it).<\/p>\n<p>In Stankov v. Bulgaria, 2007, \u00a7 53, the Court held that substantial court fees imposed at the end of proceedings could also amount to a restriction on the right to a court (see, more specifically, for cases concerning the excessive length of proceedings, an acquittal or unjustified pre-trial detention, \u00a7\u00a7 59 and 62, and a claim for compensation for assault, \u010coli\u0107 v. Croatia, 2021, \u00a7\u00a7 58-59); see also, regarding the refusal to reimburse legal costs, \u010cernius and Rinkevi\u010dius v. Lithuania, 2020, \u00a7\u00a7 68-69 and \u00a7 74; and compare with proceedings challenging the costs payable following judicial proceedings, Taratukhin v. Russia (dec.), 2020, \u00a7\u00a7 36 et seq. For a recent summary of the case-law, see Benghezal v. France, 2022, \u00a7\u00a7 43-45.<\/p>\n<p>In cases concerning court fees, regard should also be had to the litigant\u2019s conduct (Zubac v. Croatia [GC], 2018, \u00a7 120) or the manifest lack of any prospect of success of an action (Mari\u0107 v. Croatia (dec.), 2020, \u00a7\u00a7 58 and 60, concerning the obligation to bear the full costs of the State\u2019s representation, and \u00a7 52, concerning the obligation for the losing party to pay litigation costs (the \u201closer pays\u201d rule)); see also Stankiewicz v. Poland, 2006, \u00a7\u00a7 62 et seq.; Klauz v. Croatia, 2013, \u00a7\u00a7 77 et seq.; and Cindri\u0107 and Be\u0161li\u0107 v. Croatia, 2016, \u00a7\u00a7 119-123). With regard to litigation costs for proceedings that did not give rise to a decision on the merits, see Karahasano\u011flu v. Turkey, 2021, \u00a7\u00a7 136-137. Lastly, the Court has objected to the rule whereby each party has to bear its own costs regardless of the outcome of the proceedings (Zustovi\u0107 v. Croatia, 2021, \u00a7\u00a7 102-106, and see also \u00a7\u00a7 99-100 for the State\u2019s duty to bear the cost of its errors in that context); it also examined the rule that each party was to bear its own costs without exception in Dragan Kova\u010devi\u0107 v. Croatia, 2022, \u00a7\u00a7 67-85, and stressed the importance of giving reasons for a decision refusing to reimburse the costs incurred by the successful party (\u00a7 83).<\/p>\n<p>The imposition of fines in order to prevent a build-up of cases before the courts and to ensure the proper administration of justice is not, as such, incompatible with the right of access to a court. However, the amount of such fines is an important factor to take into account (Sace Elektrik Ticaret ve Sanayi A.\u015e. v. Turkey, 2013, \u00a7\u00a7 26 et seq., concerning a mandatory fine of 10% of the bid in the event of an unsuccessful attempt to challenge a public auction).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Time_Limits\"><\/span>Time Limits<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Court held in Ivanova and Ivashova v. Russia, 2017, that the national courts should not interpret domestic law in an inflexible manner with the effect of imposing an obligation with which litigants could not possibly comply. Requiring an appeal to be lodged within one month of the date on which the registry drew up a full copy of the court\u2019s decision &#8211; rather than the point at which the appellant actually had knowledge of the decision &#8211; amounted to making the expiry of the relevant deadline dependent on a factor entirely outside the appellant\u2019s control. The Court found that the right of appeal should have become effective from the point at which the applicant could effectively apprise herself of the full text of the decision.<\/p>\n<p>Limitation periods for bringing a claim (see, regarding harm to physical integrity, the case-law references cited in paragraphs 53-55 of Sanofi Pasteur v. France, 2020, including Howald Moor and Others v. Switzerland, 2014, \u00a7\u00a7 79-80; Yagtzilar and Others v. Greece, 2001, \u00a7 27). For example, the Court has found a violation of the right of access to a court in a number of cases in which the discontinuation of criminal proceedings and the resulting failure to examine a civil claim were due to a lack of diligence on the national authorities\u2019 part (Atanasova v. Bulgaria, 2008, \u00a7\u00a7 35-47). Excessive delays in the examination of a claim may also render the right of access to a court meaningless (Kristiansen and Tyvik AS v. Norway, 2013).<\/p>\n<p>The granting of leave to appeal out of time and the resulting acceptance of an ordinary appeal lodged after a significant period of time, for reasons that do not appear especially convincing, may entail a breach of the principle of legal certainty and the right to a court (Magomedov and Others v. Russia, 2017, \u00a7\u00a7 87-89, where late appeals benefiting the competent authorities were accepted following the extension without any valid reason of the time-limit for appealing).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Delay\"><\/span>Delay<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The length of preliminary investigations, attributable to the authorities, preventing the applicant from joining criminal proceedings as a civil party claiming damages or from making a civil compensation claim (Petrella v. Italy, 2021, \u00a7\u00a7 51-53 and references cited).<\/p>\n<p>Delay by the national authorities in examining an application by the applicant (challenging the selection procedure for a post for which she had applied), with the result that the proceedings were terminated on the grounds that there was no legal interest in pursuing the application as the administrative decision at issue had expired (Frezadou v. Greece, 2018, \u00a7 47 \u2013 compare and contrast with Sailing Club of Chalkidiki &#8220;I Kelyfos&#8221; v. Greece, 2019, \u00a7 72). More generally, in exceptional cases where proceedings are kept pending for an excessive period, this may impair the right of access to a court (Kristiansen and Tyvik AS v. Norway, 2013, \u00a7 57).<\/p>\n<p>The unjustified lack of a decision for a particularly lengthy period by the court dealing with the case may be regarded as a denial of justice; the remedy used by the applicant may thus become deprived of all effectiveness where the court concerned does not manage to settle the dispute in good time, as required by the circumstances of the case and what is at stake (Sailing Club of Chalkidiki &#8220;I Kelyfos&#8221; v. Greece, 2019, \u00a7 60).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Other_Limits_on_Access\"><\/span>Other Limits on Access<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<ul>\n<li>by issues relating to jurisdiction (see, for example, Arlewin v. Sweden, 2016, concerning a television programme broadcast from another European Union country) or an excessively restrictive interpretation of the scope of an association\u2019s stated aim, depriving it of its right of access to a court (Association Burestop 55 and Others v. France, 2021, \u00a7 71). Furthermore, where an action for damages is brought against it, the State has a positive obligation to facilitate the identification of the respondent authority (Georgel and Georgeta Stoicescu v. Romania, 2011, \u00a7\u00a7 69-71).<\/li>\n<li>by issues of evidence, where the requirements for the burden of proof are overly rigid (Tence v. Slovenia, 2016, \u00a7\u00a7 35-38); concerning formalism in the presentation of evidence, see Efstratiou and Others v. Greece, 2020, \u00a7\u00a7 44 et seq.<\/li>\n<li>by the existence of procedural bars preventing or limiting the possibilities of applying to a court:a particularly strict interpretation by the domestic courts of a procedural rule (excessive formalism) may deprive applicants of their right of access to a court (Zubac v. Croatia [GC], 2018, \u00a7 97; P\u00e9rez de Rada Cavanilles v. Spain, 1998, \u00a7 49; Miragall Escolano and Others v. Spain, 2000, \u00a7 38; Sotiris and Nikos Koutras ATTEE v. Greece, 2000, \u00a7 20; B\u011ble\u0161 and Others v. the Czech Republic, 2002, \u00a7 50; RTBF v. Belgium, 2011, \u00a7\u00a7 71-72 and 74; Miessen v. Belgium, 2016, \u00a7\u00a7 72-74; Gil Sanjuan v. Spain, 2020, \u00a7 34; and for a constitutional court, Dos Santos Calado and Others v. Portugal, 2020, \u00a7\u00a7 118-130), bearing in mind that an unreasonable construction of a procedural requirement impairs the right to effective judicial protection (Miragall Escolano and Others v. Spain, 2000,<br \/>\n\u00a7 37). As regards the retroactive application of a new admissibility criterion after an appeal has been lodged, this raises an issue concerning the principle of legal certainty (Gil Sanjuan v. Spain, 2020, \u00a7\u00a7 35-45);<\/li>\n<li>\u00a0consideration of the value of the subject matter of the dispute (ratione valoris admissibility threshold) in order to determine the jurisdiction of a higher court (Zubac v. Croatia [GC], \u00a7 73, \u00a7\u00a7 85-86);<\/li>\n<li>the requirements linked to execution of an earlier ruling may impair the right of access to a court, for instance where the applicant\u2019s lack of funds makes it impossible for him even to begin to comply with the earlier judgment (Annoni di Gussola and Others v. France, 2000, \u00a7 56; compare with Arvanitakis v. France (dec.), 2000);<\/li>\n<li>procedural rules barring certain subjects of law from taking court proceedings (The Holy Monasteries v. Greece, 1994, \u00a7 83; Philis v. Greece (no. 1), 1991, \u00a7 65; Lupa\u015f and Others v. Romania, 2006, \u00a7\u00a7 64-67; and, regarding adults lacking capacity, Stanev v. Bulgaria [GC], 2012, \u00a7\u00a7 241-45; Nataliya Mikhaylenko v. Ukraine, 2013, \u00a7 40; Nikolyan v. Armenia, 2019; and compare with R.P. and Others v. the United Kingdom, 2012);<\/li>\n<li>by the limits of the judicial review available, for example where a complaint to the administrative courts against a presidential decree could only give rise to a review of compliance with external formalities in the adoption of the decree, whereas the applicant\u2019s complaint called for an examination of the merits and of the internal legality of the decree (K\u00f6vesi v. Romania, 2020, \u00a7\u00a7 153-154, concerning the premature removal of a prosecutor), and a fortiori by the unavailability of a judicial review (see Camelia Bogdan v. Romania, 2020, \u00a7\u00a7 76-77, concerning the automatic temporary suspension of a judge pending the examination of her appeal against a decision to remove her from office).<\/li>\n<\/ul>\n<h3><span class=\"ez-toc-section\" id=\"Formalism\"><\/span>Formalism.<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In Xavier Lucas v. France, 2022, by giving precedence to the rule that applications to the Court of Appeal had to be made electronically (e-justice), while disregarding the practical hurdles faced by the applicant in doing so, the Court of Cassation had adopted a formalistic approach which was not necessary to ensure legal certainty or the proper administration of justice and which was therefore \u201cexcessive\u201d (\u00a7 57).<\/p>\n<p>However, again on the subject of formalism, the conditions of admissibility of an appeal on points of law may quite legitimately be stricter than for an ordinary appeal (Tourisme d\u2019affaires v. France, 2012, \u00a7 27 in fine). Given the special nature of the Court of Cassation\u2019s role, the procedure followed in the Court of Cassation may be more formal, especially where the proceedings before it follow the hearing of the case by a first-instance court and then a court of appeal, each with full jurisdiction (Levages Prestations Services v. France, 1996, \u00a7\u00a7 44-48; Brualla G\u00f3mez de la Torre v. Spain, 1997, \u00a7\u00a7 34-39), but the domestic authorities do not enjoy unfettered discretion in this respect (Zubac v. Croatia [GC], 2018, \u00a7\u00a7 108-109). In that context, the Court has referred to the subsidiarity principle and to its case-law concerning filtering systems for remedies before supreme courts (Succi and Others v. Italy, 2021, \u00a7 85).<\/p>\n<p>The Court has also had regard to the specific role of the Supreme Administrative Court and has found it acceptable that there may be stricter admissibility criteria for proceedings before it (Papaioannou v. Greece, 2016, \u00a7\u00a7 42-49). In examining a complaint by an applicant about the new conditions for an appeal to that court, the Court held that it was not its task to express a view on the appropriateness of the domestic courts\u2019 case-law policy choices, or of a choice of legislative policy, but solely to review whether the consequences of those choices were in conformity with the Convention (ibid., \u00a7 43; see also Ronald Vermeulen v. Belgium, 2018, \u00a7 53). Furthermore, in view of the special role played by the Constitutional Court as the court of last resort for the protection of fundamental rights, it can also be accepted that proceedings before it may be more formal (Arribas Ant\u00f3n v. Spain, 2015, \u00a7 50 and below).<\/p>\n<p>More generally, the Zubac v. Croatia [GC], 2018, judgment reiterated the general principles on access to a higher court (\u00a7\u00a7 80-82 and \u00a7 84) and the case-law on formalism (\u00a7\u00a7 96-99). In particular, the issues of \u201clegal certainty\u201d and \u201cproper administration of justice\u201d are two central elements for drawing a distinction between excessive formalism and acceptable application of procedural formalities (\u00a7 98). These principles also apply to proceedings before a constitutional court (Fraile Iturralde v. Spain (dec.), 2019, \u00a7\u00a7 36-37; Dos Santos Calado and Others v. Portugal, 2020, \u00a7\u00a7 111-112).<\/p>\n<p>The Court has found that digital technologies (e-bar\/e-justice) may help improve the administration of justice and be harnessed to promote the rights guaranteed by Article 6 \u00a7 1, thus pursuing a \u201clegitimate aim\u201d (Xavier Lucas v. France, 2022, \u00a7 46). The Court has also found that the requirement to submit applications electronically\/digitally in proceedings involving compulsory representation by counsel was compatible with Article 6 \u00a7 1 (\u00a7 51). However, the requirement to submit an application electronically may raise an issue in terms of access to a court when it is applied in practice, for example where electronic submission entailed the applicant\u2019s lawyer having to complete a form using inappropriate legal concepts (\u00a7\u00a7 52-57, violation).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Proportionate_Restrictions\"><\/span>Proportionate Restrictions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Court\u2019s role is not to resolve disputes over the interpretation of domestic law regulating access to a court, but rather to ascertain whether the effects of such interpretation are compatible with the Convention (Zubac v. Croatia [GC], 2018, \u00a7 81). In that regard, the Court examines whether\u00a0the procedure to be followed for the remedy in question could be regarded as \u201cforeseeable\u201d from the point of view of the litigant. A coherent domestic judicial practice and a consistent application of that practice will normally satisfy the foreseeability criterion with regard to a restriction on access to a higher court (ibid., \u00a7 88; C.N. v. Luxembourg, 2021, \u00a7 44, and concerning the foreseeability of the combined application of various statutory provisions for the first time by the Court of Cassation, see<br \/>\n\u00a7\u00a7 45 et seq. and Xavier Lucas v. France, 2022, \u00a7 50). It is important that reasons should be given by the national court regarding the application of domestic law, as this makes it possible to verify that a \u201cfair balance\u201d has been struck between the legitimate concern to ensure compliance with the procedural requirements for lodging an appeal on points of law, on the one hand, and the right of access to a court on the other hand (Ghrenassia v. Luxembourg, \u00a7\u00a7 34-37).<\/p>\n<p>According to Zubac v. Croatia [GC], 2018, in determining the proportionality of legal restrictions on access to the superior courts, three factors should be taken into account: (i) the procedure to be followed for an appeal must be foreseeable from the point of view of the litigant (see also, with regard to a constitutional court, Arrozpide Sarasola and Others v. Spain, 2018, \u00a7 106); (ii) after identifying the procedural errors committed during the proceedings which eventually prevented the applicant from enjoying access to a court, it must be determined whether the applicant had to bear an excessive burden as a result of such errors. Where the procedural error in question occurred only on one side, that of the applicant or the relevant authorities, notably the court(s), as the case may be, the Court would normally be inclined to place the burden on the side that produced the error (Zubac v. Croatia [GC], 2018, \u00a7 90 and the examples cited); and (iii) whether the restrictions in question could be said to involve \u201cexcessive formalism\u201d (\u00a7 97; see also, concerning a constitutional court, Dos Santos Calado and Others v. Portugal, 2020, \u00a7\u00a7 116-117, and the examples cited).<\/p>\n<p>In Gil Sanjuan v. Spain, 2020, the Court found a violation of Article 6 \u00a7 1 on account of the retroactive application of a new admissibility criterion for an appeal to the Supreme Court after the appeal had been lodged (\u00a7 45). Referring to the principle of legal certainty, the Court found that the emergence of the new criterion had not been foreseeable for the applicant (\u00a7\u00a7 38-39) and that she had therefore been unable to remedy any potential effects of the application of the new criterion (\u00a7\u00a7 40-43).<\/p>\n<p>In Trevisanato v. Italy, 2016, the Court did not find fault with the requirement for specialist lawyers to conclude each ground of appeal to the Court of Cassation with a paragraph summing up the reasoning and explicitly identifying the legal principle alleged to have been breached (\u00a7\u00a7 42-45). In Succi and Others v. Italy, 2021, the Court emphasised the level of knowledge expected of specialist lawyers when drafting appeals on points of law (\u00a7 113), and in Ghrenassia v. Luxembourg, 2021, the Court had regard to the lack of a system of specialist lawyers for proceedings before the Court of Cassation (\u00a7 36).<br \/>\nThe Court has also found that considerations linked to expediting and simplifying the Court of Cassation\u2019s examination of cases were legitimate (Miessen v. Belgium, 2016, \u00a7 71).<\/p>\n<p>In principle, the imposition of a specified threshold (ratione valoris admissibility criterion) for access to a supreme court pursues the legitimate aim of ensuring that that court is only required to deal with matters of such importance as befits its role (Zubac v. Croatia [GC], 2018, \u00a7 73, \u00a7 83 and<br \/>\n\u00a7 105). However, the proportionality of such a restriction must be assessed on a case-by-case basis (\u00a7\u00a7 106-107) and the Court has laid down precise criteria for assessing whether the national authorities exceeded their margin of appreciation in the case in question (\u00a7\u00a7 108-109).<br \/>\nFurthermore, Article 6 \u00a7 1 guarantees not only the right to institute proceedings but also the right to obtain a determination of the dispute by a court (Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, \u00a7 86; Kuti\u0107 v. Croatia, 2002, \u00a7\u00a7 25 and 32, regarding the staying of proceedings; A\u0107imovi\u0107 v. Croatia, 2003, \u00a7 41; Beneficio Cappella Paolini v. San Marino, 2004, \u00a7 29 concerning a denial of justice; Marini v. Albania, 2007, \u00a7\u00a7 118-123, concerning a refusal to take a final decision on\u00a0the applicant\u2019s constitutional appeal as a result of a tied vote, and Gogi\u0107 v. Croatia, 2020, \u00a7\u00a7 40-41, concerning the consequences of errors by the judicial authorities).<\/p>\n<p>In cases where the termination of criminal proceedings prevents the examination of civil\u2011party claims made by applicants in the context of those proceedings, the Court examines whether the applicants could make use of other channels for asserting their civil rights. In cases where it has held that other accessible and effective remedies were available, it has found no infringement of the right of access to a court (Nicolae Virgiliu T\u0103nase v. Romania [GC], 2019, \u00a7 198). More generally, the failure to examine a civil-party application on the merits does not ipso facto amount to an unjustified restriction of the right of access to a court (Petrella v. Italy, 2021, \u00a7\u00a7 49-53 and references cited).<\/p>\n<p>The right to a court may also be infringed where a court fails to comply with the statutory time-limit in ruling on appeals against a series of decisions of limited duration (Musumeci v. Italy, 2005, \u00a7\u00a7 41-43) or in the absence of a decision (Ganci v. Italy, 2003, \u00a7 31). The \u201cright to a court\u201d also<br \/>\nencompasses the execution of judgments.<\/p>\n<p>In examining the proportionality of a restriction of access to a civil court, the Court takes into account the procedural errors committed during the proceedings which prevented the applicant from enjoying such access, and determines whether the applicant was made to bear an excessive burden on account of such errors. For example, in Xavier Lucas v. France, 2022, the Court found that in view of the circumstances of the case, the applicant\u2019s lawyer could not be held accountable for the procedural error in question \u2013 the submission of an application on paper and not electronically (\u00a7\u00a7 54- 56). Reference criteria have been laid down for assessing whether it is the applicant or the competent authorities who should bear the consequences of any errors (Zubac v. Croatia [GC], 2018, \u00a7\u00a7 90-95,<br \/>\n\u00a7 119). Where errors were made before the lower courts, the Court has assessed the subsequent role of the Supreme Court (\u00a7\u00a7 122-124).<\/p>\n<p>Furthermore, where a person claims the right of access to a court, that Convention right may be in conflict with the other party\u2019s right to legal certainty, likewise secured under the Convention. Such a situation requires a balancing exercise between conflicting interests, and the Court accords the State a wide margin of appreciation (Sanofi Pasteur v. France, 2020, \u00a7\u00a7 56-58).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Various_Limitations\"><\/span>Various Limitations<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The right of access to the courts is not absolute. The court to which an application has been made may decline jurisdiction on convincing and reasonable grounds (Ali Riza v. Switzerland, 2021, \u00a7\u00a7 94- 96) and there is scope for limitations permitted by implication (Stanev v. Bulgaria [GC], 2012, \u00a7 230; Zubac v. Croatia [GC], 2018, \u00a7 78; Golder v. the United Kingdom, 1975, \u00a7 38). This applies in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard (Zubac v. Croatia [GC], 2018, \u00a7\u00a7 107-109; Luordo v. Italy, 2003, \u00a7 85), or where the proper administration of justice and the effectiveness of domestic judicial decisions are concerned (Ali Riza v. Switzerland, 2021, \u00a7 97).<\/p>\n<p>Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 \u00a7 1 if it does not pursue a \u201clegitimate aim\u201d (Oorzhak v. Russia, 2021, \u00a7\u00a7 20-22) and if there is not a \u201creasonable relationship of proportionality between the means employed and the aim sought to be achieved\u201d (Markovic and Others v. Italy [GC], 2006, \u00a7 99; Na\u00eft-Liman v. Switzerland [GC], 2018, \u00a7\u00a7 114-115; Ashingdane v. the United Kingdom, 1985, \u00a7 57; Fayed v. the United Kingdom, 1994, \u00a7 65).<\/p>\n<p>The right of access to a court may also be subject, in certain circumstances, to legitimate restrictions, such as, for example, statutory limitation periods (Sanofi Pasteur v. France, 2020, \u00a7\u00a7 50- 55, concerning the defendant and the victim claiming damages; Stubbings and Others v. the United Kingdom, 1996, \u00a7\u00a7 51-52), security for costs orders (Tolstoy Miloslavsky v. the United Kingdom, 1995, \u00a7\u00a7 62-67), a legal representation requirement (R.P. and Others v. the United Kingdom, 2012, \u00a7\u00a7 63- 67), a requirement to attempt a friendly-settlement procedure before bringing a claim for damages against the State (Mom\u010dilovi\u0107 v. Croatia, 2015, \u00a7\u00a7 55-57), or observance of the rules on serving pleadings on the parties to proceedings concerning an appeal on points of law (C.N. v. Luxembourg, 2021, \u00a7 55). The same applies to the requirement to be representated by a specialist lawyer before the Court of Cassation (B\u0105kowska v. Poland, 2010, \u00a7\u00a7 45-46, 48). Moreover, a refusal by a legal-aid lawyer to lodge an appeal on points of law on account of its lack of prospects of success is not in itself contrary to Article 6 \u00a7 1 (\u00a7 47).<\/p>\n<p>In addition, a restriction of access to judicial review may be accepted in order to respect the organisational autonomy of an association or a professional body with a certain degree of autonomy in deciding internal matters, such as the rules of conduct of its members, outside a disciplinary context (Bilan v. Croatia (dec.), 2020, \u00a7\u00a7 27-31, concerning a written warning issued to a notary public; to be distinguished from Lovri\u0107 v. Croatia, 2017, \u00a7 73). A restriction of access to a court may result from a decision by a supreme court to limit in time the effects of a declaration that a law is unconstitutional. This does not breach Article 6 \u00a7 1 in exceptional circumstances where it is justified by public-interest considerations. Indeed, it may be necessary to avoid any manifestly excessive consequences of such a declaration of unconstitutionality in a sensitive area such as, for example, a country\u2019s economic policy in times of serious economic crisis (Frantzeskaki v. Greece (dec.), 2019, \u00a7\u00a7 38-40 and references cited).<\/p>\n<p>Where access to a court is restricted by law or in practice, the Court examines whether the restriction affects the substance of the right and, in particular, whether it pursues a \u201clegitimate aim\u201d (which must be indicated by the respondent Government: Oorzhak v. Russia, 2021, \u00a7\u00a7 20-22) and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved: Ashingdane v. the United Kingdom, 1985, \u00a7 57. With regard to the proportionality of the restriction, the scope of the State\u2019s margin of appreciation may depend, inter alia, on the relevant international law in this area (Na\u00eft-Liman v. Switzerland [GC], 2018, \u00a7\u00a7 173-174). In cases involving issues that are subject to constant developments in the member States, the scope of the margin of appreciation may also depend on whether there is a \u201cEuropean consensus\u201d or at least a certain trend among the member States (ibid., \u00a7 175). No violation of Article 6 \u00a7 1 can be found if the restriction is compatible with the principles established by the Court.<\/p>\n<p>Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court (McElhinney v. Ireland [GC], 2001, \u00a7 24). Article 6 \u00a7 1 does not guarantee any particular content for civil \u201crights\u201d in the substantive law of the Contracting States: the Court may not create through the interpretation of Article 6 \u00a7 1 a substantive right which has no legal basis in the State concerned (Z and Others v. the United Kingdom [GC], 2001, \u00a7\u00a7 87 and 98). In Lupeni Greek Catholic Parish and Others v. Romania [GC], 2016, the Court held that the difficulties encountered by the applicants in their attempts to secure the return of a church building had resulted from the applicable substantive law\u00a0and were unrelated to any limitation on the right of access to a court. It therefore held that there had been no violation of Article 6 \u00a7 1 (\u00a7\u00a7 99 and 106).<\/p>\n<p>In addition, the mere fact that a claim is held to be inadmissible for lack of a legitimate interest does not amount to a denial of access to a court as long as the claimant\u2019s submissions have been properly examined (Obermeier v. Austria, 1990, \u00a7 68, and for an international court, Konkurrenten.no AS v. Norway (dec.), 2019, \u00a7\u00a7 46-48).<\/p>\n<p>Restrictions on the national courts\u2019 jurisdiction to deal with acts carried out abroad: such restrictions may pursue legitimate aims linked to the principles of the proper administration of justice and maintaining the effectiveness of domestic judicial decisions (Na\u00eft-Liman v. Switzerland [GC], 2018, \u00a7 122; Hussein and Others v. Belgium, 2021, \u00a7\u00a7 59-73).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Immunity_International_Organisations\"><\/span>Immunity International Organisations<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>International organisations\u2019 immunity from national jurisdiction (see in particular Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013, \u00a7 139): this treaty-based rule \u2013 which pursues a legitimate aim (Waite and Kennedy v. Germany [GC], 1999, \u00a7 63) \u2013 is permissible from the standpoint of Article 6 \u00a7 1 only if the restriction stemming from it is not disproportionate. Hence, it will be compatible with Article 6 \u00a7 1 if the persons concerned have available to them reasonable alternative means to protect effectively their rights under the Convention (ibid., \u00a7\u00a7 68-74; Prince Hans-Adam II of Liechtenstein v. Germany [GC], 2001, \u00a7 48; Chapman v. Belgium (dec.), 2013, \u00a7\u00a7 51-56; and Klausecker v. Germany (dec.), 2015, \u00a7\u00a7 69-77, concerning the alternative to an arbitration procedure). It does not follow, however, that in the absence of an alternative remedy the recognition of immunity of an international organisation is ipso facto constitutive of a violation of the right of access to a court (Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013,<br \/>\n\u00a7 164).<\/p>\n<p>The decision in Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013, concerned the granting of immunity to the United Nations (UN) in the national courts. The Court held that operations established by UN Security Council resolutions under Chapter VII of the UN Charter were fundamental to the UN\u2019s mission to secure international peace and security. Accordingly, the Convention could not be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction in the absence of a UN decision to that effect. To bring such operations within the scope of domestic jurisdiction would amount to allowing any individual State, through its courts, to interfere with the fulfilment of a key mission of the UN in this field, including with the effective conduct of its operations (\u00a7 154). The Court added that international law did not support the position that a civil claim should cause the domestic courts to lift the United Nations\u2019 immunity from suit for the sole reason that the claim was based on an allegation of a particularly grave violation of a norm of international law, even a norm of jus cogens (\u00a7 158).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"State_Immunity\"><\/span>State Immunity<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The doctrine of foreign State immunity is generally accepted by the community of nations (Stichting Mothers of Srebrenica and Others v. the Netherlands, 2013, (dec.), \u00a7 158). Measures taken by a member State which reflect generally recognised rules of public international law on State immunity do not automatically constitute a disproportionate restriction on the right of access to court (Fogarty v. the United Kingdom [GC], 2001, \u00a7 36; McElhinney v. Ireland [GC],<\/p>\n<p>Jurisdictional immunity of foreign States: the grant of immunity is to be seen not as qualifying a substantive right but as a procedural bar on the national courts\u2019 power to determine the right (J.C. and Others v. Belgium, 2021, \u00a7\u00a7 58-59). A foreign State may waive its right to immunity before the courts of another State by giving clear and unequivocal consent (Ndayegamiye-Mporamazina v. Switzerland, 2019, \u00a7\u00a7 57 and 59). In cases where the application of the principle of State immunity from jurisdiction restricts the exercise of the right of access to a court, it must be ascertained whether the circumstances of the case justify such restriction (for example, Prince Hans-Adam II of Liechtenstein v. Germany [GC], 2001, \u00a7\u00a7 51-70). The restriction must pursue a legitimate aim and be proportionate to that aim (Cudak v. Lithuania [GC], 2010, \u00a7 59; Sabeh El Leil v. France [GC], 2011,\u00a0\u00a7\u00a7 51-54). The grant of sovereign immunity to a State in civil proceedings pursues the \u201clegitimate aim\u201d of complying with international law to promote comity and good relations between States (Fogarty v. the United Kingdom [GC], 2001, \u00a7 34; Al-Adsani v. the United Kingdom [GC], 2001, \u00a7 54; Treska v. Albania and Italy (dec.), 2006; J.C. and Others v. Belgium, 2021, \u00a7 60). As to whether the measure taken is proportionate (see the summary of the principles in J.C. and Others v. Belgium, 2021, \u00a7\u00a7 61 and 63), it may in some cases impair the very essence of the individual\u2019s right of access to a court (Cudak v. Lithuania [GC], 2010, \u00a7 74; Sabeh El Leil v. France [GC], 2011, \u00a7 49; Naku v. Lithuania and Sweden, 2016, \u00a7 95), while in other cases it may not (Al-Adsani v. the United Kingdom [GC], 2001, \u00a7 67; Fogarty v. the United Kingdom [GC], 2001, \u00a7 39; McElhinney v. Ireland [GC], 2001, \u00a7 38; and more recently, J.C. and Others v. Belgium, 2021, \u00a7 75, where the Court found that the national court had not departed from the generally recognised rules of international law on State immunity). In the absence of an alternative remedy, there is not ipso facto a violation of the right of access to a court (Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.), 2013), although the Court found that the existence of an alternative would be desirable in the specific circumstances of the case of J.C. and Others v. Belgium, 2021 (\u00a7 71).<\/p>\n<p>State immunity from jurisdiction has been circumscribed by developments in customary international law. Thus, the Court has noted a trend in international and comparative law towards limiting State immunity in respect of employment-related disputes, with the exception, however, of those concerning the recruitment of embassy staff (Cudak v. Lithuania [GC], 2010, \u00a7\u00a7 63 et seq.; Sabeh El Leil v. France [GC], 2011, \u00a7\u00a7 53-54 and 57-58; Naku v. Lithuania and Sweden, 2016, \u00a7 89, concerning the dismissal of embassy staff members; see also Wallishauser v. Austria, 2012, concerning the service of a summons in proceedings against a foreign State relating to salary arrears).<\/p>\n<p>As regards disputes concerning a contract of employment concluded between embassies or permanent missions and their support staff, the Court has always protected both nationals of the forum State (the State where the work is performed) and non-nationals living there (Ndayegamiye- Mporamazina v. Switzerland, 2019, \u00a7\u00a7 49 and 61 and references cited). This consistent approach is in line with codified international custom: in principle, a foreign State cannot rely on immunity from jurisdiction in the context of a dispute concerning a contract of employment executed in the territory of the forum State.<\/p>\n<p>However, there are exceptions to that principle, in particular where \u201cthe employee is a national of the employer State at the time when the proceeding is instituted, unless this person has his or her permanent residence in the State of the forum\u201d (ibid., \u00a7\u00a7 61-63). In the case cited, unlike the previous cases, the applicant was a national of the employer State (Burundi) when she brought her case before the Swiss courts, and was not permanently resident in the forum State (Switzerland), where she worked at the Permanent Mission of the Republic of Burundi to the United Nations. The observance by Switzerland of the Republic of Burundi\u2019s immunity from jurisdiction in respect of the applicant\u2019s claim of unfair dismissal was compatible with the generally recognised rules of international law on State immunity (\u00a7 66).<\/p>\n<p>A restrictive approach to immunity may also be taken in relation to commercial transactions between the State and foreign private individuals (Oleynikov v. Russia, 2013, \u00a7\u00a7 61 and 66). n the other hand, the Court noted in 2001 that, while there appeared to be a trend in international and comparative law towards limiting State immunity in respect of personal injury caused by an act or omission within the forum State, that practice was by no means universal (McElhinney v. Ireland [GC], 2001, \u00a7 38).<\/p>\n<p>In J.C. and Others v. Belgium, 2021, the Court did not uphold the applicants\u2019 argument that State immunity from jurisdiction could not be maintained in cases involving inhuman or degrading treatment (see \u00a7\u00a7 64 et seq., including the summary of precedents concerning\u00a0other serious violations of human rights law, international humanitarian law, or jus cogens norms). In addition, the Court held in 2014 that while there was some emerging support in favour of a special rule or exception in public international law in cases concerning civil claims for torture lodged against foreign State officials, the bulk of the authority was to the effect that the State\u2019s right to immunity could not be circumvented by suing its servants or agents instead (Jones and Others v. the United Kingdom, 2014, \u00a7\u00a7 213-15, concerning the refusal to consider the applicants\u2019 civil claim in respect of torture allegations on account of the immunity invoked by the State in question and its officials).<\/p>\n<p>State immunity from execution is not in itself contrary to Article 6 \u00a7 1. The Court noted in 2005 that all the international legal instruments governing State immunity set forth the general principle that, subject to certain strictly delimited exceptions, foreign States enjoyed immunity from execution in the territory of the forum State (Manoilescu and Dobrescu v. Romania and Russia (dec.), 2005, \u00a7 73). By way of illustration, the Court held in 2002 that \u201calthough the Greek courts ordered the German State to pay damages to the applicants, this did not necessarily oblige the Greek State to ensure that the applicants could recover their debt through enforcement proceedings in Greece\u201d (Kalogeropoulou and Others v. Greece and Germany (dec.), 2002). These decisions are valid in relation to the state of international law at the relevant time and do not preclude future developments in that law.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Parliamentary_Immunity\"><\/span>Parliamentary Immunity.<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>It- is a long-standing practice for States generally to confer varying degrees of immunity on parliamentarians, with the aim of allowing free speech for representatives of the people and preventing partisan complaints from interfering with parliamentary functions (C.G.I.L. and Cofferati v. Italy (no. 2), 2010, \u00a7 44). Hence, parliamentary immunity may be compatible with Article 6, provided that it:<\/p>\n<ul>\n<li>pursues legitimate aims: protecting free speech in Parliament and maintaining the separation of powers between the legislature and the judiciary (A. v. the United Kingdom, 2002, \u00a7\u00a7 75-77 and 79);<\/li>\n<li>is not disproportionate to the aims sought to be achieved (if the person concerned has reasonable alternative means to protect effectively his or her rights (ibid., \u00a7 86) and immunity attaches only to the exercise of parliamentary functions (ibid., \u00a7 84; Zollmann v. the United Kingdom (dec.), 2010).<\/li>\n<\/ul>\n<p>A lack of any clear connection with parliamentary activity calls for a narrow interpretation of the concept of proportionality between the aim sought to be achieved and the means employed (Cordova v. Italy (no. 2), 2003, \u00a7 64; Syngelidis v. Greece, 2010, \u00a7 44). Individuals\u2019 right of access to a court cannot be restricted in a manner incompatible with Article 6 \u00a7 1 whenever the impugned remarks were made by a member of Parliament (Cordova v. Italy (no. 1), 2003, \u00a7 63; C.G.I.L. and Cofferati v. Italy (no. 2), 2010, \u00a7\u00a7 46-50, where, in addition, the victims did not have any reasonable alternative means to protect their rights).<\/p>\n<p>Judges\u2019 exemption from jurisdiction is likewise not incompatible with Article 6 \u00a7 1 if it pursues a legitimate aim, namely the proper administration of justice (Ernst and Others v. Belgium, 2003, \u00a7 50), and observes the principle of proportionality in the sense that the applicants have reasonable alternative means to protect effectively their rights under the Convention (ibid., 2003, \u00a7 53-55).<\/p>\n<p>Immunities enjoyed by civil servants: limitations on the ability of individuals to take legal proceedings to challenge statements and findings made by civil servants which damage their reputation may pursue a legitimate aim in the public interest (Fayed v. the United Kingdom, 1994,<br \/>\n\u00a7 70); however, there must be a relationship of proportionality between the means employed and that legitimate aim (ibid., \u00a7\u00a7 75-82). The case of Jones and Others v. the United Kingdom (\u00a7\u00a7 213-15) concerned the refusal to consider the applicants\u2019 civil claim in respect of torture allegations on account of the immunity invoked by the State in question and its officials. The Court was satisfied that the grant of immunity to the State officials in this particular case reflected generally recognised rules of\u00a0public international law, while indicating that developments in this area needed to be kept under review.<\/p>\n<p>Immunity of a head of State: in view of the functions performed by heads of State, the Court has considered it acceptable to afford them functional immunity in order to protect their freedom of expression and to maintain the separation of powers within the State. The parameters of such immunity must be regulated. Perpetual and absolute immunity that can never be lifted would constitute a disproportionate restriction on the right of access to a court (Urechean and Pavlicenco v. Republic of Moldova, 2014, \u00a7\u00a7 47-55).<\/p>\n<p>Limits to immunity: it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 \u00a7 1 \u2013 namely that civil claims must be capable of being submitted to a judge for adjudication \u2013 if a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (McElhinney v. Ireland [GC], 2001, \u00a7\u00a7 23-26; Sabeh El Leil v. France [GC], 2011, \u00a7 50).<\/p>\n<p>The judgment in Al-Dulimi and Montana Management Inc. v. Switzerland [GC], 2016, concerned the confiscation of assets pursuant to Resolution 1483 (2003) of the United Nations Security Council. The judgment lays down principles regarding the availability of appropriate judicial supervision by the domestic courts of measures adopted at national level pursuant to decisions taken within the UN sanctions system. The Court held in this particular case that there was nothing in Resolution 1483 (2003) that explicitly prevented the domestic courts from reviewing, in terms of human rights protection, the measures taken at national level pursuant to that Resolution. Where a resolution does not contain explicitly exclude the possibility of judicial supervision, it must always be understood as authorising States to exercise sufficient scrutiny to avoid any arbitrariness in its implementation, so that a fair balance can be struck between the competing interests at stake. Any implementation of the Security Council resolution without the possibility of judicial supervision to ensure the absence of arbitrariness would engage the State\u2019s responsibility under Article 6 of the Convention.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Waiver\"><\/span>Waiver<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>An individual cannot be deemed to have waived a right if he or she had no knowledge of the existence of the right or of the related proceedings (Schmidt v. Latvia, 2017, \u00a7 96 and case-law references cited).<\/p>\n<p>In the Contracting States\u2019 domestic legal systems, a waiver of a person\u2019s right to have his or case heard by a court or tribunal is frequently encountered in civil matters, notably in the shape of arbitration clauses in contracts. The waiver, which has undeniable advantages for the individual concerned as well as for the administration of justice, does not in principle offend against the Convention (Deweer v. Belgium, 1980, \u00a7 49; Pastore v. Italy (dec.), 1999). Article 6 does not therefore preclude the setting up of arbitration tribunals in order to settle certain disputes (Transado &#8211; Transportes Fluviais Do Sado, S.A. v. Portugal (dec.), 2003).<\/p>\n<p>The parties to a case are free to decide that the ordinary courts are not required to deal with certain disputes potentially arising from the performance of a contract. In accepting an arbitration clause, the parties voluntarily waive certain rights enshrined in the Convention (Eiffage S.A. and Others v. Switzerland (dec.), 2009; Tabbane v. Switzerland (dec.), 2016, \u00a7 27). There may be a legitimate reason for limiting the right to direct individual access to an arbitration tribunal (Lithgow and Others v. the United Kingdom, 1986, \u00a7 197).<\/p>\n<p>Persons may waive their right to a court in favour of arbitration, provided that such waiver is permissible and is established freely and unequivocally (Suda v. the Czech Republic, 2010, \u00a7\u00a7 48-49 and case-law references cited; Tabbane v. Switzerland (dec.), 2016, \u00a7\u00a7 26-27 and 30). In a democratic society too great an importance attaches to the right to a court for its benefit to be forfeited solely by reason of the fact that an individual is a party to a settlement reached in the course of a procedure ancillary to court proceedings (Suda v. the Czech Republic, 2010, \u00a7 48). The waiver must be attended by minimum safeguards commensurate to its importance (Eiffage S.A. and Others v. Switzerland (dec.), 2009; Tabbane v. Switzerland (dec.), 2016, \u00a7 31).<\/p>\n<p>A distinction is made in the case-law between voluntary and compulsory arbitration. In principle, no issue is raised under Article 6 in the case of voluntary arbitration since it is entered into freely (see, however, in relation to commercial arbitration, Beg S.p.a. v. Italy, 2021, \u00a7\u00a7 135 et seq.). However, in the case of compulsory arbitration \u2013 that is, where arbitration is required by law \u2013 the parties have no opportunity to remove their dispute from the jurisdiction of an arbitration tribunal, which consequently must afford the guarantees set forth in Article 6 \u00a7 1 of the Convention (Tabbane<br \/>\nv. Switzerland (dec.), 2016, \u00a7\u00a7 26-27 and case-law references cited). In the decision cited, the Court held that the waiver clause and the relevant statutory provision had pursued a legitimate aim, namely promoting Switzerland\u2019s position as a venue for arbitration through flexible and rapid procedures, while respecting the applicant\u2019s contractual freedom (\u00a7 36).<\/p>\n<p>The Court has emphasised the advantages of arbitration over judicial proceedings in settling commercial disputes. In a case brought by a professional footballer and a speed skater, it reiterated the applicable principles in this area (Mutu and Pechstein v. Switzerland, 2018, \u00a7\u00a7 94-96) and confirmed that this finding was equally relevant in the sphere of professional sport. In determining whether the applicants had waived all or part of the safeguards provided for in Article 6 \u00a7 1, the fundamental question was whether the arbitration procedure had been compulsory for them (\u00a7 103). The Court observed that the second applicant had had no other choice than to apply to the Court of Arbitration for Sport (CAS), since the rules of the International Skating Union clearly stated that all disputes were to be brought before the CAS, failure to do so entailing a risk of exclusion from international competition (\u00a7\u00a7 113-115). Conversely, the Court found that the first applicant had not been required to accept the compulsory jurisdiction of the CAS, since the relevant international rules gave footballers the choice in such matters. Nevertheless, the Court went on to observe that the first applicant could not be regarded as having unequivocally agreed to apply to a panel of the CAS lacking independence and impartiality. One of the important aspects in the Court\u2019s view was that, in making use of the rules governing procedure before the CAS, the first applicant had in fact sought to have one of the arbitrators on the panel stood down. Accordingly, in the cases of both the first and the second applicants, the arbitration procedure should have afforded the safeguards provided for in Article 6 \u00a7 1 (\u00a7\u00a7 121-123). See also, regarding an arbitration committee with exclusive and compulsory jurisdiction to hear football disputes, Ali R\u0131za and Others v. Turkey, 2020, \u00a7\u00a7 175-181 and Ali Riza v. Switzerland, 2021, \u00a7 82).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Costs\"><\/span>Costs<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The right of access to court must be effective. Where a matter is so complex as to require professional legal assistance in the state this must provide this if it is indispensable for effective access to court. In Airey v Ireland the absence of a civil legal aid system was found to breach the obligations in the Convention.<\/p>\n<p>In Steel &amp; Morris v UK McDonald&#8217;s sued environmental protesters for libel. Because freedom of expression was at issue with the risk of substantial damages and costs the failure to afford assistance for defence breached the Convention.<\/p>\n<p>Article 6 \u00a7 1 does not imply that the State must provide free legal aid for every dispute relating to a \u201ccivil right\u201d (Airey v. Ireland, 1979, \u00a7 26). There is a clear distinction between Article 6 \u00a7 3 (c) \u2013 which guarantees the right to free legal aid in criminal proceedings subject to certain conditions \u2013 and Article 6 \u00a7 1, which makes no reference to legal aid (Essaadi v. France, 2002, \u00a7 30).<\/p>\n<p>However, the Convention is intended to safeguard rights which are practical and effective, in particular the right of access to a court. Hence, Article 6 \u00a7 1 may sometimes compel the State to provide for the assistance of a lawyer when such assistance proves indispensable for an effective access to court (Airey v. Ireland, 1979, \u00a7 26).<\/p>\n<p>The question whether or not Article 6 requires the provision of legal representation to an individual litigant will depend upon the specific circumstances of the case (ibid.; McVicar v. the United Kingdom, 2002, \u00a7 48, concerning a defendant in proceedings instituted by the authorities, and see \u00a7 50; Steel and Morris v. the United Kingdom, 2005, \u00a7 61). What has to be ascertained is whether, in the light of all the circumstances, the lack of legal aid would deprive the litigant of a fair hearing (McVicar v. the United Kingdom, 2002, \u00a7 51), for example by putting him or her at a distinct disadvantage as compared with the opposing party (Timofeyev and Postupkin v. Russia, 2021, \u00a7\u00a7 101- 107).<\/p>\n<p>The question whether Article 6 implies a requirement to provide legal aid will depend, among other factors, on:<\/p>\n<ul>\n<li>the importance of what is at stake for the applicant (P., C. and S. v. the United Kingdom, 2002, \u00a7 100; Steel and Morris v. the United Kingdom, 2005, \u00a7 61), including whether a right protected by the Convention was at issue in the domestic proceedings (for example, Article 8 or 10, or Article 2 of Protocol No. 4 to the Convention: Timofeyev and Postupkin v. Russia, 2021, \u00a7 102).;<\/li>\n<li>the complexity of the relevant law or procedure (Airey v. Ireland, 1979, \u00a7 24), for example on account of special rules on the presentation of the parties\u2019 observations (Gnahor\u00e9 v. France, 2000, \u00a7 40) or on the submission of evidence (McVicar v. the United Kingdom, 2002, \u00a7 54);<\/li>\n<li>the applicant\u2019s capacity to represent him or herself effectively (McVicar v. the United Kingdom, 2002, \u00a7\u00a7 48-62; Steel and Morris v. the United Kingdom, 2005, \u00a7 61), which may concern the question whether the opposing party was provided with assistance throughout the proceedings and the difficulties encountered by the applicant in preparing his or her defence (Timofeyev and Postupkin v. Russia, 2021, \u00a7\u00a7 104-107);<\/li>\n<li>the existence of a statutory requirement to have legal representation (Airey v. Ireland, 1979, \u00a7 26; Gnahor\u00e9 v. France, 2000, \u00a7 41 in fine).<\/li>\n<\/ul>\n<p>However, the right in question is not absolute (Steel and Morris v. the United Kingdom, 2005, \u00a7\u00a7 59-60) and it may therefore be permissible to impose conditions on the grant of legal aid based in particular on the following considerations, in addition to those cited in the preceding paragraph:<\/p>\n<ul>\n<li>the financial situation of the litigant (Steel and Morris v. the United Kingdom, 2005, \u00a7 62);<\/li>\n<li>his or her prospects of success in the proceedings (ibid).<\/li>\n<\/ul>\n<p>Hence, a legal aid system may exist which selects the cases which qualify for it and ensures that public money for legal aid in proceedings before the Court of Cassation is only made available to those whose appeals have a reasonable prospect of success (Del Sol v. France, 2002, \u00a7 23). However, the system established by the legislature must offer individuals substantial guarantees to protect them from arbitrariness (Gnahor\u00e9 v. France, 2002, \u00a7 41; Essaadi v. France, 2002, \u00a7 36; Del Sol v. France, 2002, \u00a026; Bakan v. Turkey, 2007, \u00a7\u00a7 75-76 with a reference to the judgment in Aerts v. Belgium, 1998, concerning an impairment of the very essence of the right to a court).<\/p>\n<p>It is therefore important to have due regard to the quality of a legal aid scheme within a State (Essaadi v. France, 2002, \u00a7 35) and to verify whether the method chosen by the authorities is compatible with the Convention (Santambrogio v. Italy, 2004, \u00a7 52; Bakan v. Turkey, 2007, \u00a7\u00a7 74-78; Pedro Ramos v. Switzerland, 2010, \u00a7\u00a7 41-45). There is no obligation on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded\u00a0a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-\u00e0-vis the adversary (Steel and Morris v. the United Kingdom, 2005, \u00a7 62).<\/p>\n<p>It is essential for the court to give reasons for refusing legal aid and to handle requests for legal aid with diligence (Tabor v. Poland, 2006, \u00a7\u00a7 45-46; Saoud v. France, 2007, \u00a7\u00a7 133-36). The Dragan Kova\u010devi\u0107 v. Croatia judgment, 2022, dealt with the question of legal aid in proceedings before a Constitutional Court and the vulnerability of an applicant who had been deprived of legal capacity (\u00a7\u00a7 35-36, 79 and 81).<\/p>\n<p>Furthermore, the refusal of legal aid to foreign legal persons is not contrary to Article 6 (Granos Organicos Nacionales S.A. v. Germany, 2012, \u00a7\u00a7 48-53). Regarding commercial companies in general, see Nalbant and Others v. Turkey, 2022 (\u00a7\u00a7 37-38).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Effectiveness_of_the_Legal_Aid\"><\/span>Effectiveness of the Legal Aid<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The State is not accountable for the actions of an officially appointed lawyer. It follows from the independence of the legal profession from the State (Staroszczyk v. Poland, 2007, \u00a7 133), that the conduct of the defence is essentially a matter between the defendant and his counsel, whether counsel is appointed under a legal aid scheme or is privately financed. The conduct of the defence as such cannot, other than in special circumstances, incur the State\u2019s liability under the Convention (Tuzi\u0144ski v. Poland (dec.), 1999).<\/p>\n<p>However, assigning a lawyer to represent a party does not in itself guarantee effective assistance (Sia\u019akowska v. Poland, 2007, \u00a7\u00a7 110 and 116). The lawyer appointed for legal aid purposes may be prevented for a protracted period from acting or may shirk his duties. If they are notified of the situation, the competent national authorities must replace him; should they fail to do so, the litigant would be deprived of effective assistance in practice despite the provision of free legal aid (Bertuzzi v. France, 2003, \u00a7 30).<\/p>\n<p>It is above all the responsibility of the State to ensure the requisite balance between the effective enjoyment of access to justice on the one hand and the independence of the legal profession on the other. The Court has clearly stressed that any refusal by a legal aid lawyer to act must meet certain quality requirements. Those requirements will not be met where the shortcomings in the legal aid system deprive individuals of the \u201cpractical and effective\u201d access to a court to which they are entitled (Staroszczyk v. Poland, 2007, \u00a7 135; Sia\u019akowska v. Poland, 2007, \u00a7 114 &#8211; violation).<br \/>\nTo sum up, the State cannot be held responsible for every action\/inaction or shortcoming on the part of a legal aid lawyer, and the litigant also has certain responsibilities in this area (B\u0105kowska v. Poland, 2010, \u00a7\u00a7 45-54, and, mutatis mutandis, Feilazoo v. Malta, 2021, \u00a7\u00a7 125-126 and 131).<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-23113\" data-postid=\"23113\" class=\"themify_builder_content themify_builder_content-23113 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Access to Court Article 6.1 implies a right of access to a court or equivalent tribunal. This implies the right to commence and take proceedings; Golder v UK. The right of access to a court for the purposes of Article 6 was defined in Golder v. the United Kingdom, 1975, \u00a7\u00a7 28-36 (see, as a [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[345],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23113"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=23113"}],"version-history":[{"count":14,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23113\/revisions"}],"predecessor-version":[{"id":23533,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/23113\/revisions\/23533"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=23113"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=23113"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=23113"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}