Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 26345/95

by Miroslav SPADRNA

against the Czech Republic

The European Commission of Human Rights (Second Chamber) sitting

in private on 29 November 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

P. LORENZEN

Ms. M.-T. SCHOEPFER, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 October 1994

by Miroslav SPADRNA against the Czech Republic and registered on

27 January 1995 under file No. 26345/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant, a Czech citizen born in 1967, resides in Prague.

He is a workman. The facts of the case, as submitted by the applicant,

may be summarised as follows.

A. Particular circumstances of the case

On 6 April 1990 the applicant was dismissed from his employment.

On 1 June 1990 the applicant brought an action against his

employer to challenge his dismissal and for damages for loss of salary

while he was unemployed.

On 6 March 1992 the Prague 1 District Court (Obvodní soud pro

Prahu 1) declared the dismissal null and void. On 6 November 1992 this

court decided that the employer was only obliged to pay damages for the

period of six months, as according to Article 61 para. 2 of the Labour

Code "in cases where the total period for which individuals are

entitled to receive an indemnity exceeds six months, the court may,

upon request of an employer, decide to reduce the indemnity for the

period exceeding six months or may decide not to grant it at all".

The applicant appealed, claiming that Article 61 para. 2 of the

Labour Code is discriminatory and contradictory. He referred to the

Supreme Court's case-law according to which a person is not obliged to

take up any job during the period of the proceedings relating to the

validity of dismissal (cf. Decisions of the Supreme Court Nos. 9/77,

10/77 and 47/77, Collection of Legal Decisions and Opinions).

On 21 October 1993 the Prague Court of Appeal (Mestsky soud v

Praze) partially confirmed and partially quashed the judgment of the

Prague 1 District Court, which gave a new judgment on 27 September

1994. In the meantime, on 27 January 1994, the applicant had lodged a

constitutional appeal alleging discrimination under Article 61 para. 2

of the Labour Code: he claimed that he was not in the same position as

his employer because the indemnity he was entitled to receive was

limited by the period of six months. If an action were to be brought

by an employer, the employer could claim compensation for actual damage

as well as for lost profits. He further complained about the length

of the proceedings before the courts.

The applicant also requested legal aid, stating that he did not

have sufficient means to pay for legal representation.

By letter of 15 March 1994 (received by the applicant on

25 March 1994) the Constitutional Court (Ústavní soud) reminded the

applicant that he was not represented by a lawyer and asked him to

satisfy this condition by 30 March 1994. On 30 March 1994 the

applicant sent a letter to the Constitutional Court by which he asked

for extension of the time limit to 15 April 1994. He received a

positive reply on 12 April 1994.

On 14 April 1994 the applicant sent his form of authority to the

Constitutional Court. Another copy, signed by his lawyer and

accompanied by additions to the applicant's appeal, was sent to the

Court by his representative on 20 April 1994.

On 19 April 1994 the Constitutional Court refused the applicant's

appeal. The Court considered that

"... the matter concerns an appeal which does not satisfy

the procedural conditions laid down in Law No. 182/1993

because, in particular, the appeal was not written by a

lawyer, although the Court has expressly reminded the

applicant about it, and the authority form lacks the

applicant's representative's statement about accepting the

representation and contains a substitution clause which is

contrary to Article 31 para. 1 of the Law No. 182/1993."

B. Relevant domestic law and practice

Law No. 182/1993 on the Constitutional Court

Article 29

[Translation]

"A party to proceedings ... shall only be represented before the

Constitutional Court by a barrister or commercial lawyer or

notary in the field ..."

[Original]

"Úcastník ... se muze dát v rízení pred Ústavním soudem

zastupovat pouze advokátem nebo komercním právníkem nebo notárem

v rozsahu stanoveném zvlástními predpisy ..."

Article 30

[Translation]

"1. Physical ... persons as parties to proceedings before the

Constitutional Court ... must be represented before the

Constitutional Court by a barrister or commercial lawyer or

notary in the field ..."

[Original]

"1. Fyzické ... osoby jako úcastníci rízení ... pred Ústavním

soudem musí byt zastoupeny advokátem nebo komercním právníkem

nebo notárem v rozsahu stanoveném zvlástními predpisy ..."

Article 83

[Translation]

"1. The judge rapporteur may decide, upon the applicant's

request made prior to the first consideration of the

constitutional appeal, that the costs relating to the applicant's

legal representation will be fully or partly borne by the State

if the constitutional appeal has not been refused and if such

need is justified by the applicant's personal and financial

situation, mainly if he/she has not sufficient means for covering

the costs for legal representation (Articles 29 and 30 para. 1)."

[Original]

"1. Oduvodnují-li to osobní a majetkové pomery stezovatele,

zejména nemá-li dostatecné prostredky k placení nákladu spojenych

se zastoupením (§§ 29 a 30 odst. 1) a nebyla-li ústavní stíznost

odmítnuta, soudce zpravodaj rozhodne na návrh stezovatele podany

pred prvním ústavním jednáním, ze náklady ne jeho zastoupení

zcela nebo zcásti zaplatí stát."

Law No. 128/1990 on the legal professions

Article 16

[Translation]

"1. Everyone has the right to legal representation. Barristers

may refuse to provide legal assistance if they have not been

appointed or designated by the Bar Association.

2. Those who have been refused legal representation may ask

the Bar Association to designate a barrister."

[Original]

"1. Kazdy má právo na poskytnutí právní pomoci. Advokát je

oprávnen poskytnutí právní pomoci odmítnout, pokud nebyl k jejímu

poskytnutí ustanoven nebo Komorou urcen.

2. Ten, komu bylo poskytnutí právní pomoci odmítnuto, muze

pozádat Komoru, aby mu advokáta urcila."

Decision No. I US 335/92 of the Constitutional Court of the Czech and

Slovak Federal Republic of 17 June 1992 (Collection of decisions and

judgments)

[Translation]

"An appeal is contrary to law where an applicant claims

that he/she has been refused legal representation and

requests the Constitutional Court to decide on the merits

of his/her appeal without satisfying the requirement of

legal representation. The provisions of Articles 19 and 58

para. 1 of Law No. 491/1991 unambiguously and without

exception require legal representation from the

introduction of an appeal and during the proceedings ..."

[Original]

"Pokud navrhovatel uvádí, ze ho advokát odmítá zastupovat

a zádá, aby Ústavní soud meritorne rozhodl bez splnení

podmínky advokátního zastoupení, je tato zádost v rozporu

se zákonem. Ustanovení §§ 19 a 58 odst. 1 zákona c.

491/1991 Sb. jednoznacne a bezvyjimecne vyzadují advokátní

zastoupení uz pri podání návrhu (ústavní stíznosti) a celém

rízení ..."

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that his case was not dealt with fairly by the national courts and

within a reasonable time. He claims that the principle of equality of

arms was violated. He also alleges discrimination contrary to Article

14 of the Convention as, by virtue of Article 61 para. 2 of the Labour

Code, he was not in an equal position with his employer: if an

indemnity is requested by an employee it is limited to the period of

six months and to compensation for loss of salary, whereas where an

action is brought by an employer, the employer may claim compensation

for actual damage as well as for lost profits.

2. The applicant claims that he was refused access to the

Constitutional Court as guaranteed by Article 6 para. 1 of the

Convention and that his appeal was unfairly considered by the

Constitutional Court: it was refused on the ground that it had not

been introduced by a lawyer. He claims that there is a contradiction

in Articles 29 and 30 of Law No. 182/1993 and points out that the law

has no provision which requires introduction of an appeal by a lawyer.

The applicant further claims that the form of authority he submitted

to the Constitutional Court was a valid document even if signed only

by the authorising person.

THE LAW

1. The applicant complains that he was denied access to the

Constitutional Court within the meaning of Article 6 para. 1

(Art. 6-1) of the Convention and that his appeal was unfairly

considered by the Constitutional Court as it was refused on the ground

that it had not been introduced by a lawyer. He alleges a

contradiction in Articles 29 and 30 of Law No. 182/1993 on the

Constitutional Court and claims that no provision of the law requires

a complaint to be introduced by a lawyer.

Article 6 para. 1 (Art. 6-1) of the Convention provides, as far

as relevant, as follows:

"In the determination of his civil rights and obligations ...,

everyone is entitled to a fair ... hearing within a reasonable

time by a ... tribunal ..."

Article 6 (Art. 6) of the Convention does not guarantee a right

to appeal as such but if a right to appeal is provided under domestic

law, the requirements of Article 6 (Art. 6) must be respected in the

appeal proceedings. The Commission recalls the Court's established

case-law according to which Article 6 para. 1 (Art. 6-1) of the

Convention does not prevent Contracting Parties from making regulations

and limitations governing the access of litigants to an appellate

court. Nonetheless, the limitations applied must not restrict or

reduce the access left to the individual in such a way or to such an

extent as to impair the very essence of the right. Furthermore, a

limitation will not be compatible with Article 6 para. 1 (Art. 6-1) 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 (cf. Eur. Court H.R., Fayed judgment of

21 September 1994, Series A no. 294-A, p. 49 et seq., paras. 65 et

seq.).

In the present case, the Commission observes that the requirement

of representation before the Constitutional Court by a barrister, a

commercial lawyer or a notary applies generally to appeals introduced

before the Constitutional Court under Articles 29 and 30 of Law

No. 182/1993. The aim of the limitation is to prevent unqualified

appeals to be introduced by applicants before the Constitutional Court,

which is the supreme judicial organ in the Czech judicial system. This

undoubtedly pursues the legitimate aim of ensuring a proper

administration of justice.

The Commission cannot accept the applicant's allegation that

there is a contradiction between Articles 29 and 30 of the Law No.

182/1993 on the Constitutional Court. Article 29 defines the persons

who may represent individuals before the Constitutional Court, whereas

Article 30 para. 1 sets up a condition for individuals to be

represented before the Constitutional Court as a necessary procedural

formality in any constitutional appeal.

It is true that no provision of this law expressly sets up a

condition that constitutional appeals must be introduced by a

representative. However, the Commission notes that according to the

Czechoslovak Federal Constitutional Court's case-law an applicant must

be represented both when a constitutional appeal is introduced and

during the proceedings before the Court (cf. No. I US 335/92, 17 June

1992, Collection of decisions and judgments).

It is true that the applicant had problems finding a

representative. However, he could have asked the Czech Bar Association

to appoint a lawyer for him under Article 16 para. 2 of Law

No. 128/1990 on the legal professions.

In view of all these circumstances, the Commission considers that

the essence of the applicant's "right to a court" was not impaired, and

it follows that this part of the application is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that his case was not dealt with fairly by the national

courts and within a reasonable time. He claims that the principle of

equality of arms was violated. He also alleges discrimination under

Article 14 (Art. 14) of the Convention as by virtue of Article 61 para.

2 of the Labour Code he was not in an equal position with his employer.

Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

..."

The Commission is not, however, called upon to decide whether the

facts alleged by the applicant disclose any appearance of a violation

of the above provisions. Under Article 26 (Art. 26) of the Convention,

the Commission may only deal with the matter after all domestic

remedies have been exhausted in accordance with the generally

recognised rules of international law (cf. mutatis mutandis No

24211/94, Dec. 11.1.95, unpublished).

The Constitutional Court in its judgment of 19 April 1994

dismissed the applicant's constitutional appeal on the ground that it

did not satisfy the procedural conditions laid down in Law No. 182/1993

for introducing such an appeal, in particular, that the applicant was

not represented by a lawyer before the Court (Articles 29 and 30).

According to the Commission's established case-law, there is no

exhaustion of domestic remedies where a domestic appeal is not admitted

because of a procedural mistake (cf. No. 6878/75, Dec. 6.10.76, D.R. 6

p. 79 ; No. 23256/94, Dec. 29.6.94, D.R. 78 p. 139). In this case, the

applicant's constitutional appeal was declared inadmissible because the

applicant was not properly represented. The Commission has considered

the question of the requirement of representation above, and concluded

that it did not deny the applicant access to court. The corollary of

this is that the applicant can be expected to comply with these rules

in the context of the domestic remedies to be exhausted.

It follows that in this respect the applicant has not exhausted

the domestic remedies as required by Article 26 (Art. 26) of the

Convention and that the application is inadmissible within the meaning

of Article 27 para. 3 (Art. 27-3) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Second Chamber President of the Second Chamber

(M.-T. SCHOEPFER) (H. DANELIUS)

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SPADRNA v. THE CZECH REPUBLIC

SPADRNA v. THE CZECH REPUBLIC

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