Information Note on the Court’s case-law 47

November 2002

Běleš and Others v. the Czech Republic - 47273/99

Judgment 12.11.2002 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Interpretation by courts of procedural requirement, preventing examination of merits of claims and appeals: violation

Inadmissibility of appeal to Constitutional Court: violation

Fair hearing

Interpretation by ordina ry courts of procedural requirement, preventing examination of merits of claim: violation

Facts : The applicants are members of the Homeopathic Association, which is itself a member of a free association of persons exercising a medical or paramedical profes sion (the “Medical Society”). Following the decision of the Medical Society to strike the Homeopathic Association from the list of members, eleven members of the Association, including the applicants, brought an action. The court of first instance dismisse d their action without examining the merits. It held that by their action for a declaration of nullity within the meaning of Article 80 (c) of the Code of Civil Procedure, the applicants could not secure cancellation of the alleged illegality of the decisi on to strike the Association from the list. As regards Article 15-1 of Law No 89/1990 on the association of citizens, on which the applicants also relied, it only allowed the court to reconsider the contested decision, but not to amend it or to confirm it. The court further held that the procedure for reconsideration was henceforward included in the part of the Code of Criminal Procedure that defined the administrative jurisdiction governed by the principle of cassation, which intended that reconsideration of a decision within the meaning of Article 15 be interpreted by analogy. The applicants appealed, maintaining, in particular, that when the court considered that it was not competent to decide the matter on the basis of the provision on which they relied, it should have delivered a decision stating that it lacked jurisdiction and not dismissed their application. The Court of Appeal upheld the judgment at issue. It held that the applicants should have brought an action for reconsideration before the court o f first instance, so that that court would then have determined the application in accordance with a different provision of the Code of Civil Procedure, either by dismissing their action or by annulling the contested decision. At the same time, the Court o f Appeal dismissed the applicants' application for leave to appeal on a point of law against its judgment.  The Constitutional Court declared the applicants' action inadmissible on the ground that they had failed to exhaust the remedies provided for by law , since the applicants had not appealed on a point of law. The Constitutional Court referred to Article 239-2 of the Code of Civil Procedure.

Law : Article 6 § 1 – a. Fairness of the proceedings before the ordinary courts – The courts held that the applicants should have put forward their arguments in an administrative action based on the provisions of the Code of Civil Procedure on administrative jurisdiction. It is ap parent that the provisions of the Code of Civil Procedure to which the courts dealing with the matter referred concern only actions against administrative decisions and, consequently, do not seem capable of applying to the present case, since the Medical S ociety is a free professional association and not an administrative authority of the State. That observation was put forward by the applicants in the domestic proceedings but neither the courts nor the Government commented on the point. Furthermore, Articl e 15 of the Law on the association of citizens does not specify under which provision of the Code of Criminal Procedure the competent court must be seised. In the present case, the question put forward relates to the principle of legal certainty; it does n ot raise a simple problem of interpretation of material rules, but of the interpretation of a procedural requirement which prevented an examination of the merits of the applicants' action, a matter susceptible of amounting to a breach of the right to effec tive protection by the courts and tribunals.  In the light of the foregoing, the applicants are not to be criticized for having erred in basing their action on Article 15 of Law No 83/1990 in conjunction with Article 80 (c) of the Code of Civil Procedure. Accordingly, the domestic courts' refusal, on the basis of a particularly strict interpretation of a procedural rule, to determine the merits of the case infringed the very substance of the applicants' right to a tribunal, an ingredient of the right to a f air hearing guaranteed by Article 6 § 1.

Held : violation (unanimously).

b. Access to the Constitutional Court – The admissibility of the appeal on a point of law, within the meaning of Article 239-2 of the Code of Civil Procedure, depended entirely on the opinion of the Constitutional Court as to whether the contested decision was of “crucial importance from the legal aspect”. Thus, neither the applicants nor their lawyer were capable of evaluating the prospects of their appeal on a point of law being decla red admissible by the Supreme Court, especially since it had been declared inadmissible by the Court of Appeal. If their appeal on a point of law had been declared inadmissible, the applicants' constitutional action might have been declared inadmissible as being out of time. The simultaneous introduction of the appeal on a point of law and the constitutional action, recommended by the Government, is to be analysed as an aleatory remedy which finds no support in the statutory provisions and does not provide an appropriate solution, in accordance with the requirement of legal certainty. A requirement for the applicants, as well as appealing on a point of law, to bring an action before the Constitutional Court on the same basis would have been the source of leg al uncertainty. Moreover, it is difficult in practice for individuals to be aware of that procedure for bringing actions simultaneously. In any event, the application described by the parties of the rules relating to the admissibility of the constitutional remedy does not contribute to ensuring the proper administration of justice, since it prevents the persons concerned from using an available remedy. The requirement to use “all remedies” set out in Articles 72-2 and 75-1 of the Law on the Constitutional C ourt, without any distinction being drawn – except as regards the action for a review of the procedure – between ordinary actions and extraordinary actions, on the one hand, and the lack of foreseeability of the admissibility of the appeal on a point of la w arising under article 239-2 of the Code of Civil Procedure, on the other hand, infringes the very substance of the right of appeal by imposing on the applicants a disproportionate burden which upsets the fair balance between the legitimate desire to ensu re compliance with the procedural rules on bringing an action before the Constitutional Court and the right of access to that court. Since in Czech law an appeal on a point of law is an extraordinary remedy which is not automatically available and the admi ssibility of which is left to the discretion of the Supreme Court, it cannot be regarded, in this case, as an effective remedy which the applicants can be criticized for having failed to exercise.  That is of such a kind as to violate the right to effectiv e protection by the courts and tribunals. In short, the Constitutional Court's decision deprived the applicants of the right of access to a court and, accordingly, of their right to a fair hearing within the meaning of Article 6 § 1 of the Convention.

Held : violation (unanimously).

Article 41 – The Court dismisses the claim for compensation for pecuniary damage.  In agreement with the parties, it decides that the finding of a violation is sufficient to repair the non-pecuniary damage suffered by the applica nts. It awards €330 by way of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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