FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 52572/99 by Anna BEŇAČKOVÁ against Slovakia

The European Court of Human Rights (Fourth Section) , sitting on 17 December 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mr M. Pellonpää , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 16 September 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mrs Anna Beňačková, is a Slovakian national, who was born in 1947 and lives in Bratislava.

A. The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

Defamation proceedings against the applicant

On 24 June 1997 a person sued the applicant for defamation before the B ánovce nad Bebravou District Court. On 15 April 1998 the plaintiff extended his action. He claimed that the applicant should be ordered to abstain from alleging that he had stolen objects which formed part of his personal belongings and which were kept by the applicant. The plaintiff further claimed that the applicant should apologise for her above statements and that she be ordered to pay him 10,000 Slovakian korunas (SKK) in compensation for non-pecuniary damage resulting from the interference with his personality rights.

On 13 May 1998 the applicant requested the exclusion of the District Court judge dealing with the case with reference to the conduct of the latter. On 5 August 1998 the Trenčín Regional Court decided that the District Court judge was not biased.

On 24 September 1998 the B ánovce nad Bebravou District Court granted the plaintiff’s action. The applicant was ordered to revoke her statement that the plaintiff had stolen the property in question, to abstain from such statements in the future and to apologise in writing to the plaintiff. The District Court further decided that the applicant had to pay SKK 10,000 to the plaintiff in compensation for non-pecuniary damage and to reimburse the plaintiff’s costs amounting to SKK 2,400.

On 24 November 1998 the applicant appealed. She stated that the judgment had been served on her on 9 November 1998. On 14 December 1998 the applicant submitted the reasons for her appeal.

On 30 March 1999 the Tren čí n Regional Court rejected the appeal on the ground that it had been lodged belatedly. The decision stated, with reference to the relevant provisions of the Code of Civil Procedure, that the first instance judgment was to be considered as having been served on 26 October 1998, that is on the third day after it had been deposited at the post office. The Regional Court noted that the deposition of the judgment at the post office, of which the applicant was notified in writing, had been preceded by two unsuccessful attempts to serve it on the applicant in person at her address.

On 1 June 1999 the applicant filed an appeal on points of law. She relied on Section 237(f) of the Code of Civil Procedure and argued that the Regional Court’s conclusion concerning the date of service of the first instance judgment was erroneous.

The applicant further requested that she should be exempted from the obligation to pay the costs of the proceedings concerning her appeal on points of law and that a lawyer should be assigned to her by the court. She explained that she was handicapped and that her only income was an invalidity pension amounting to SKK 4,724 a month. The applicant concluded that her financial and social situation did not allow her to incur any costs in the context of the proceedings.

On 30 July 1999 the Bánovce nad Bebravou District Court exempted the applicant from the obligation to pay the court fees in respect of the proceedings on her appeal on points of law. It further dismissed her request that a lawyer be assigned to her.

In its decision the District Court noted that the court fee due by the applicant amounted to SKK 2,400, that is approximately a half of her monthly income. The court therefore considered it justified to exempt the applicant from the obligation to pay it.

As to the applicant’s request that a lawyer be appointed to represent her, the District Court established, with reference to the relevant regulations, that an advocate was entitled to charge the applicant SKK 1,400 for representing her in the proceedings on her appeal on points of law. It held that the applicant could afford to pay that sum and that her monthly income would in such a case still remain over the statutory minimum which then corresponded to SKK 3,230.

On 2 September 1999 the applicant appealed. She claimed that her living costs and expenditures on medicaments did not allow her to pay the fees of a lawyer. On 31 January 2000 the Tren čín Regional Court rejected the appeal on the ground that it had been lodged out of time.

On 6 April 2000 the applicant filed an appeal on points of law against the Regional Court’s decision of 31 January 2000. She argued that she had appealed in time. The applicant also claimed that she should be exempted from the obligation to pay the court fees in respect of her appeal on points of law and that an advocate should be appointed to represent her.

On 30 May 2000 the Supreme Court invited the applicant, with reference to Section 241 (1) of the Code of Civil Procedure and to the Bánovce nad Bebravou District Court’s above decision of 30 July 1999, to appoint a lawyer within five days. The letter further stated that the proceedings would be discontinued in the event that the applicant failed to comply with the request.

The applicant received the Supreme Court’s letter on 1 June 2000, and on 4 June 2000 she replied that she could not comply with the request within the time-limit fixed as she was to start a cure in the Pie šťany spa as from 6 June 2000. The applicant further stated that she did not know when the cure would end. A certificate attached to the applicant’s letter indicated that the cure was to last twenty-one days as from 6 June 2002.

On 27 June 2000 the Supreme Court discontinued the proceedings on the applicant’s appeals on points of law. The decision stated that the applicant had been notified about the dismissal of her request for an advocate to be assigned to her by the District Court on 9 March 2000. Accordingly, she had had enough time to appoint a lawyer of her own choice or, as the case might be, to ask the Bar Association or the Chamber of Commercial Lawyers to assign a lawyer to her. The Supreme Court concluded that the applicant’s conduct indicated that she had no genuine interest in complying with the formal requirements for her appeals on points of law to be proceeded with.

In a letter dated 28 June 2000 and sent on 30 June 2000 the applicant asked the president of the Bar Association to assign a lawyer to her in the proceedings on her appeals on points of law. She explained that she was handicapped and indigent.

On 2 August 2000 the vice-president of the Bar Association replied to the applicant, with reference to Section 15 (3) of the Bar Act of 1990, that an advocate could be assigned only to persons who were denied legal assistance. The letter further stated that the applicant had not shown that advocates had refused to represent her.

On 20 September 2000 the applicant again requested that the president of the Bar Association assign a lawyer to her.

On 17 October 2000 the vice-president of the Bar Association reiterated the position set out in her letter of 2 August 2000.

On 21 May 2001 the applicant asked the Bar Association to assign a lawyer to her in the proceedings on her appeal on points of law against the Regional Court’s decision of 31 January 2000. She explained that she was indigent and that her mobility was reduced. The applicant further stated that she would not contact an advocate directly, and that she considered indecent and discriminatory the requirement that she should show that three advocates had refused to represent her prior to addressing her request to the Bar Association. The applicant reiterated her request on 27 July 2001.

Enforcement of the District Court’s judgment of 24 September 1998

On 1 February 2000 an enforcement officer informed the applicant that proceedings had been brought with a view to enforcing the above District Court’s judgment of 24 September 1998.

The applicant filed an objection to the enforcement. She argued that it had no legal ground as she had not offended the plaintiff. The applicant further contested the costs of the enforcement.

On 30 March 2000 the B ánovce nad Bebravou District Court dismissed the applicant’s objection to the enforcement. It found that the applicant still owed the sum in question, and there existed no impediment to the enforcement. The District Court further found that the applicant’s objection to the costs of the enforcement was justified.

On 11 December 2001 the enforcement officer issued an order under which the sum due by the applicant was to be withdrawn from the applicant’s invalidity pension. Subsequently the order was quashed as the costs of the enforcement had not been determined in it correctly.

On 11 March 2002 a new enforcement order was issued. The sum owed by the applicant has been enforced by monthly instalments of SKK 2,002 deducted from her invalidity pension. The applicant was informed that the sum which had already been enforced under the above order of 11 December 2001 would be deducted from the sum due by her.

On 10 April 2002 the applicant requested that the enforcement proceedings be discontinued. She argued that the costs of the enforcement had been indicated erroneously in the order of 11 March 2002.

On 27 May 2002 the applicant submitted to the District Court, at the latter’s request, documents concerning her health.

On 24 June 2002 the District Court requested the applicant to inform it whether she had apologised to the plaintiff and abstained from further defamatory statements in his respect as ordered by the judgment of 24 September 1998.

On 10 July 2002 the applicant informed the court that she had sent the plaintiff a registered letter of apology. The applicant further pointed out that the above District Court’s letter of 24 June 2002 had been erroneously sent to her mother’s place in B ánovce nad Bebravou and not to her permanent address in Bratislava.

In a separate letter of 10 July 2002 the applicant complained to the Minister of Justice that the Association of Enforcement Officers had failed to examine her complaint about the enforcement officer dealing with her case.

B. Relevant domestic law

The Code of Civil Procedure

Section 30 (1) provides that courts may appoint a representative to a party to the proceedings, at the latter’s request, provided that he or she meets the requirements for waiver of court fees and that such an appointment is necessary for the protection of the party’s interests. Pursuant to paragraph 2 of Section 30, the president of the court’s chamber shall appoint an advocate to represent a party in circumstances set out in the first paragraph when the protection of the party’s interests so requires.

Pursuant to Section 237 (f), an appeal on points of law is available when a party has been prevented, by the appellate court’s conduct, from acting before the court.

Section 241 (1) provides, inter alia , that in proceedings on an appeal on points of law the plaintiff has to be represented by an advocate or a commercial lawyer unless he or she has legal qualification.

The Bar Act of 1990

Section 15 (1) of the Bar Act ( Zákon o advokácii ) of 1990 provides that everybody has the right to legal assistance and can ask any advocate for it.

Paragraph 2 of Section 15 provides that an advocate is entitled to refuse legal assistance to a person only for serious reasons permitting the advocate to conclude that he or she cannot provide such assistance in an appropriate manner. This does not apply to cases when an advocate was assigned to represent a person, for example under Section 30 of the Code of Civil Procedure. An advocate shall explain the reasons for which he or she refused to provide legal assistance to a client. The Bar Association shall examine whether such a refusal was justified.

Under paragraph 3 of Section 15, a person whose request for legal assistance has been turned down can ask the Bar Association to appoint an advocate to represent him or her.

Section 19 (3), as in force since 1 December 1999, provides that citizens are entitled to legal assistance at a reduced cost or free of charge when it is justified by the client’s personal or material situation or by other particular reasons.

COMPLAINTS

The applicant complains that the proceedings before the B ánovce nad Bebravou District Court were unfair and that the judge dealing with the case lacked impartiality. She further complains that the Trenčín Regional Court’s decision on her appeal was arbitrary and that she was denied the possibility of having the Regional Court’s decision reviewed by the Supreme Court as a result of the dismissal of her request that a lawyer be appointed to represent her. Finally, the applicant complains that her right to a fair hearing was also violated in that the enforcement officer acted erroneously and that the enforcement orders issued by him were unlawful. She alleges a violation of Article 6 § 1 of the Convention.

THE LAW

The applicant complains ( i ) that the defamation proceedings brought against her were unfair and that the District Court judge dealing with the case lacked impartiality, (ii) that her right of access to a court was dismissed as a result of the dismissal of her appeal and of her appeal on points of law and (iii) that the enforcement of the District Court’s judgment has been unlawful. She alleges a violation of Article 6 § 1 of the Convention the relevant part of which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal...”

a) To the extent that the applicant complains about unfairness of the defamation proceedings against her, the Court notes that the Tren čín Regional Court dismissed her appeal against the first instance judgment without having examined the merits of the case as it considered that the appeal had been filed out of time. The Supreme Court rejected the applicant’s appeal on points of law contesting the Regional Court’s finding on the ground that she had failed to appoint a lawyer as required by the relevant law. Prior to the delivery of the Supreme Court’s decision the applicant unsuccessfully requested that an advocate be appointed to her under Section 30 (2) of the Code of Civil Procedure.

In these circumstances, the Court considers that the principal issue which it is required to address in respect of this part of the application is whether by its decision of 27 June 2000 the Supreme Court denied the applicant the right of access to court.

Article 6 § 1 of the Convention embodies the right of access to a court for the determination of civil rights and obligations (see the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, p. 18, § 36). That right is not absolute and may be subject to legitimate restrictions. However, for the right of access to be effective, an individual must have a clear, practical opportunity to challenge an act that is an interference with his rights (see the Bellet v. France judgment of 4 December 1995, Series A no. 333-B, p. 41, § 36).

While there is no automatic right under the Convention to legal aid or legal representation to be available for an applicant who is involved in proceedings which determine his or her civil rights, failure to provide an applicant with the assistance of a lawyer may breach this provision where such assistance is indispensable for effective access to court within the meaning of the Court’s case-law.

In the present case the Bánovce nad Bebravou District Court, by a decision of 30 July 1999, exempted the applicant from the obligation to pay the court fees in respect of the proceedings on her appeal on points of law considering that its payment would impose an excessive burden on the applicant. On the other hand, it dismissed her request that a lawyer be assigned to her on the ground that the applicant was in a position to pay the lawyer’s fees chargeable in the context of the proceedings on her appeal on points of law. In reaching this conclusion the District Court considered in detail the applicant’s situation. In view of the information before it, the Court considers that the dismissal of the applicant’s request for a lawyer to be assigned to her was neither arbitrary nor disproportionate.

In addition, it was open to the applicant to ask advocates to represent her under Section 19 (3) of the Bar Act of 1990, either for reduced fees or free of charge. Under paragraph 3 of Section 15 of the Bar Act of 1990, the applicant could ask the Bar Association to appoint an advocate to represent her in the event that her request for legal assistance was turned down by several advocates. However, the applicant did not show that one or several advocates had refused to provide here with legal assistance in accordance with Section 19 (3) of the Bar Act of 1990, and she addressed herself to the Bar Association only after the Supreme Court had decided on her case on 27 June 2000.

In view of the above facts, the Court considers that the dismissal of the applicant’s appeal on points of law for her failure to appoint a lawyer  as required by Section 241 (1) of the Code of Civil Procedure did not impinge on the essence of her right of access to court (see, mutatis mutandis , Ivison v. the United Kingdom (dec.), no. 39030/97, 16 April 2002, with further references).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b) The applicant complains that her right to a fair hearing was also violated in that the enforcement officer acted erroneously and that the enforcement orders issued by him were unlawful.

The Court notes that the applicant requested that the enforcement proceedings be discontinued on the ground that the enforcement officer had proceeded erroneously and that the B ánovce nad Bebravou District Court has not yet decided on her objections concerning the shortcomings in the enforcement proceedings. Accordingly, the applicant’s complaint in this respect is premature.

The Court further notes that it has been open to the applicant to claim compensation for damage resulting from the actions of the enforcement officer which she considers unlawful. However, she has not shown that she availed herself of such a possibility.

It follows that this complaint must be rejected under Article 3 5 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Nicolas Bratza Registrar President