Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 17829/91

by Erik Albert Lotze BOECK

against Denmark

The European Commission of Human Rights (Second Chamber) sitting

in private on 1 April 1992, the following members being present:

MM. S. TRECHSEL, President of the Second Chamber

C.A. NØRGAARD

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

MM. F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

Mr. K. ROGGE, Secretary to the Second 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 30 November 1990

by Erik Albert Lotze BOECK against Denmark and registered on 21

February 1991 under file No. 17829/91;

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 facts of the case, as submitted by the applicant, may be

summarised as follows.

The applicant is a Danish citizen, born in 1942. He is a civil

engineer and resides at Frederiksberg, Denmark.

In 1967 the applicant joined the Danish Association of Engineers

trade union. In 1983, however, he left the union which he found pursued

socialistic goals.

In 1985 the applicant started working in the Patents Directorate

(Patentdirektoratet) which falls under the administrative authority of

the Ministry of Industry. In August 1988 he was dismissed by the

Director of the Patents Directorate with effect from 1 January 1989

allegedly because of lack of the necessary qualifications for the job.

The applicant was convinced, however, that he had been dismissed

because he was not a member of the Danish Association of Engineers for

which reason he asked the Minister of Industry to investigate the

matter. On 22 September 1988 the Minister informed the applicant that

he found no reason to criticise the Director's decision to terminate

the employment due to lack of the necessary qualifications. The

Minister found it established that trade union membership questions had

not in any way influenced the decision. Furthermore, the Minister

informed the applicant that in so far as he considered his dismissal

to be due to his non-membership of a trade union this was a question

to be determined by the courts.

The applicant then applied for legal aid in order to institute

proceedings against the Patents Directorate but his application was

rejected on 6 July 1990 by the Copenhagen County Authority (Københavns

Statsamt) since it did not appear that the applicant had any reasonable

grounds for suing the Directorate.

The applicant appealed against this decision to the Directorate

of Civil Law (Civilretsdirektoratet). In its decision of 27 November

1990 refusing legal aid the Directorate stated:

(translation)

"The Directorate's decision has been taken pursuant to Section

330 of the Administration of Justice Act (retsplejeloven),

according to which it is a requirement for granting legal aid

that the applicant, inter alia, appears to have reasonable

grounds for litigation, which normally means that the applicant

must have prospects of being successful in regard to his claims.

The reason for the decision is first and foremost that you have

not, in the Directorate's opinion, in the circumstances of the

case sufficiently rendered it probable that you could provide

such evidence as would be necessary in order to be successful

with your claim.

The Directorate has also considered your application under

Section 331 of the Administration of Justice Act according to

which the Directorate may grant legal aid when special reasons

so require regardless of whether the conditions set out in

Section 330 are fulfilled. This applies in particular in cases

of principle, in cases of general public interest, or in cases

which are of considerable importance to the applicant's social

situation or employment. According to practice it is, however,

normally also a requirement for granting legal aid pursuant to

Section 331 that the applicant appears to have reasonable grounds

for litigation which, as indicated, normally means that the

applicant must have prospects of being successful in regard to

his claims.

As mentioned above the Directorate does not find that you have

prospects of being successful with your claim, for which reason

there is no basis upon which you could be granted legal aid in

accordance with Article 331 of the Administration of Justice

Act."

The applicant did not pursue his case in the ordinary courts of

law.

COMPLAINTS

The applicant complains that he was denied access to court, and

thus to a fair hearing, contrary to Article 6 para. 1 of the Convention

since he was not granted legal aid. He also maintains that this amounts

to a violation of Articles 13 and 17 of the Convention. Finally, in

regard to the question of access to court the applicant complains that

legal aid was denied him in a discriminatory manner. He refers in this

respect to Article 14 of the Convention.

Under Article 11 of the Convention the applicant complains that

he was dismissed only due to the fact that he was not a member of the

Danish Association of Engineers trade union.

THE LAW

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

Convention that he has been denied access to court as a result of the

refusal of the Directorate of Civil Law to grant him legal aid.

Article 6 para. 1 (Art. 6-1) of the Convention provides inter

alia:

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

everyone is entitled to a fair ... hearing ... by an independent

and impartial tribunal established by law."

According to the case-law of the Commission and the European

Court of Human Rights Article 6 para. 1 (Art. 6-1) guarantees to

litigants an effective right of access to the courts for the

determination of their "civil rights and obligations". However, a free

choice of the means to be used towards this end is left to the States.

Furthermore, there is no obligation on the States to provide free legal

aid for every dispute relating to a "civil right" (cf. Eur. Court H.R.,

Airey judgment of 9 October 1979, Series A no. 32, para. 26, p. 15).

The Commission finds that where a State chooses a legal aid

system to provide for access to court, such a system can only operate

effectively, given the limited resources available, by establishing a

machinery to select which cases should be legally aided. Such

limitations on the availability of free legal aid, common to most

Convention States, often require a financial contribution or that the

proposed litigation have reasonable prospects of success. In the

Commission's view, Article 6 para. 1 (Art. 6-1) does not require that

legal aid be provided in every case, irrespective of the nature of the

claim and the supporting evidence. Where an individual is refused legal

aid in a particular case because his proposed civil claim is either not

sufficiently well grounded or is regarded as frivolous or vexatious the

burden would then fall on him to secure his "access to court" in some

other way such as, for example, bringing the action himself or seeking

assistance from some other source. Accordingly, the Commission is of

the opinion that where a person has been refused legal aid on the basis

that his claim lacks reasonable prospect of success such a situation

would not normally constitute denial of access to court unless it could

be shown that the decision of the administrative authority was

arbitrary (cf. No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).

In the present case the Commission recalls that the questions

concerning the granting of legal aid in Denmark are regulated by law,

i.e. Sections 330 and 331 of the Administration of Justice Act. The

Directorate of Civil Law found that the necessary requirements were not

fulfilled in that the applicant's civil claim was not sufficiently well

founded. In this respect the administrative authority necessarily had

a certain discretionary power, and the applicant has not submitted any

evidence which could lead the Commission to conclude that the decision

taken was arbitrary or, having regard to the applicant's reference to

Article 14 (Art. 14) of the Convention, based on discriminatory

considerations. Furthermore, the applicant does not dispute that he

could bring an action himself, albeit at his own expense, should the

action eventually fail. The applicant's allegation that he would not

receive a fair hearing in such circumstances has not been

substantiated. Accordingly, the Commission finds that he was not denied

access to court.

It follows that this part of the application must be rejected as

being manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. Having regard to the above conclusion the Commission finds that

no separate issue arises as regards the applicant's reference to

Articles 13 and 17 (Art. 13, 17) of the Convention.

3. The applicant finally complains that he was dismissed due to the

fact that he was not a member of a trade union and invokes in this

respect Article 11 (Art. 11) of the Convention.

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law.

In the present case the applicant did not institute proceedings

in the ordinary courts of law in order to have determined whether his

dismissal was due to non-membership of a trade union and he has not

shown that he was unable to do so. In this respect the Commission

recalls that a dismissal based on non-membership of a trade union would

be illegal under Danish law, a view the Danish courts have constantly

upheld (cf. No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237).

Accordingly, the applicant has not exhausted the remedies

available to him under Danish law and, in the light of the finding

above, an examination of the case does not disclose the existence of

any special circumstances which might have absolved the applicant,

according to the generally recognised rules of international law, from

exhausting the domestic remedies at his disposal.

It follows that the applicant has not complied with the condition

as to the exhaustion of domestic remedies and this part of the

application must accordingly be rejected under 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

(K. ROGGE) (S. TRECHSEL)

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BOECK v. DENMARK

BOECK v. DENMARK

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