Communicated on 14 June 2018

FOURTH SECTION

Applications nos. 73579/17 and 14620/18 Irmantas ÄŒERNIUS against Lithuania and Andrejus RINKEVIÄŒIUS against Lithuania lodged on 9 October 2017 and 20 March 2018 respectively

STATEMENT OF FACTS

The applicant in the first case, Mr Irmantas Černius (hereinafter – “the first applicant”), lives in Vilnius.

The applicant in the second case, Mr Andrejus Rinkevi č ius (hereinafter – “the second applicant”), lives in Å ven č ion Ä— liai .

The applicants are Lithuanian nationals. They are represented before the Court by Mr M. Mikalopas , a lawyer practising in Vilnius.

A. The circumstances of the cases

The facts of the cases, as submitted by the applicants, may be summarised as follows.

The applicants worked as supervisors at different branches of the same private company.

In 2015, a fter having inspected the offices of the company, the State Labour Inspectorate drew up a protocol of an administrative offence in respect of each of the applicants, finding that they had failed to publicly display the employees ’ working schedules. T he State Labour Inspectorate gave each of the applicants a fine of 500 euros (EUR) for breach of the Labour Code.

Each of the applicants started court proceedings, challenging the lawfulness of the fine imposed on them. The administrative courts of two instances quashed the Inspectorate ’ s decisions as unfounded. The courts noted that the employees of that company had access to their work schedules, were aware of them and would arrive at work on time.

During those administrative court proceedings, each of the applicants was represented by a lawyer who assisted them in legal matters. The first applicant paid EUR 1,169 and the second applicant paid EUR 839 for those litigation costs.

Having obtained court decisions which established that the fines had been given to each of them by the Inspectorate without basis, each of the applicants started new administrative court proceedings, asking that the sums they had paid for legal assistance be compensated. They saw those sums as pecuniary damage. Both applicants argued that, if the legal costs were not compensated, that would deter them from going to court to protect their interests, and would be in breach of Article 13 of the Convention and of Article 1 of Protocol No. 1 to the Convention.

The first and the second applicants ’ claims for compensation were first dismissed by the Vilnius Regional Administrative Court in 2016, and then by the Supreme Administrative Court on 12 April 2017 and 3 January 2018, respectively. Those courts considered that the State Labour Inspectorate had not abused its powers or acted negligently when imposing the fines on the applicants, which, in the courts ’ view, meant that there was no basis for compensation of the applicants ’ legal expenses. The courts held that, in line with the Civil Code, the State could be ordered to compensate for pecuniary or non-pecuniary damage only where it had acted unlawfully. However, no unlawful actions had been established on the part of the State Labour Inspectorate: it had acted within the limits of its authority, and the mere fact that the protocols of administrative offence were subsequently annulled by courts did not make them unlawful.

B. Relevant domestic law and practice

The Constitution reads:

Article 30

“A person whose constitutional rights or freedoms are violated shall have the right to apply to a court.

Compensation for material and moral damage inflicted upon a person shall be established by law.”

In the ruling of 13 December 2004 the Constitutional Court held:

“It is worth mentioning in this context that it is establ ished in Paragraph 2 of Article 30 of the Constitution that it is the law that establishes the compensation for material and moral damage inflicted on a person. When construing the legal regulation established in Paragraph 2 of Article 30 of the Constitution, the Constitutional Court held that in this paragraph one “provides for a duty of the legislature to pass a law or laws providing for compensation of damage for the person who suffered material or moral damage”, that “the laws must provide for factual protection of violated human rights and freedoms”, and “this protection must be coordinated with protection of the other values entrenched in the Constitution”, as well as that “the Constitution guarantees the right of an individual to compensation of material or moral damage, including recovery of damage under judicial procedure” .. ). In the Constitutional Court ’ s ruling of 20 January 1997, it is held that “the necessity to compensate material and moral damage inflicted on a person is a constitutional principle”, which “must be considered in the law-making work”, and that Paragraph 2 of Article 30 of the Constitution “clearly indicates the form of a legal act whereby compensation for material and moral damage must be regulated” – this must be done by law.”

In the ruling of 19 August 2006 the Constitutional Court held:

“3. In the course of protection and defence of human rights and freedoms ..., particular importance is attributed to the institute of compensation for damage. It is established in Paragraph 2 of Article 30 of the Constitution that compensation for material and moral damage inflicted upon a person shall be established by law. Thus, the necessity to compensate material and moral damage inflicted upon a person is a constitutional principle ... This constitutional principle is inseparable from the principle of justice entrenched in the Constitution: all the necessary legal preconditions must be created by law in order to justly compensate for the inflicted damage. Thus, the Constitution imperatively requires to establish by law such legal regulation that a person, who was inflicted damage by unlawful actions, would be able in all cases to claim for just compensation for that damage and to receive that compensation. In the context of the constitutional justice case at issue, it should be emphasised that it does not follow from the Constitution that it is possible by law to establish some exceptions, under which the moral and/or material damage inflicted upon the person is not compensated, for example, because of the reason that it was inflicted by unlawful actions of officials or institutions of the State itself. If the law, let alone other legal act, established such legal regulation whereby the State would fully or partially avoid the duty to justly compensate for material and/or moral damage inflicted by unlawful actions of the State institution or [its] officials, it would mean not only that the constitutional concept of compensation for damage is disregarded and that this is not line with the Constitution ( inter alia , Paragraph 2 of Article 30 thereof), but it would also undermine the raison d ’ être of the State itself as a common good of the whole society.”

In 2015 – the time relevant to this case – the Law on Administrative Proceedings provided:

Article 44. Recovery of Costs by the Parties to the Proceedings

“1. The party to the proceedings in whose favour the [court] decision has been adopted shall be entitled to recover costs from the other party .

...

6. The party to the proceedings in whose favour the decision has been adopted shall also be entitled to reimbursement of representation expenses. The question of reimbursement of representation expenses shall be determined in accordance with the procedure laid down by the Code of Civil Procedure and other legal acts. ”

The Law on Administrative Proceedings currently reads:

Article 39. Other costs related to hearing the case in court

“1. The following shall be attributed to the costs related to the hearing of the case:

...

2) costs incurred in connection with the advocate ’ s or trainee advocate ’ s legal services (costs for the advocate ’ s or trainee advocate ’ s consultations, assistance when preparing and submitting procedural documents and participation in the court hearing);

...”

Article 40. Reimbursement of Costs by the Parties to the Proceedings

“1. The party to the proceedings in whose favour the [court] decision has been adopted shall be entitled to reimbursement of costs from the other party.

...

5. The party to the proceedings in whose favour the decision has been adopted shall also be entitled to reimbursement of expenses of legal representation by and advocate or trainee advocate... The question of reimbursement of representation expenses shall be determined in accordance with the procedure laid down by the Code of Civil Procedure and other legal acts.

...”

Article 47. Representation in court

“1. The parties to the proceedings defend their interests in court in person or through representatives. Presence of the party in the hearing does not deprive it of the right to have a representative in that case.

...

4. The following persons may act as representatives:

1) advocates ;

2) trainee advocates, who have supervising advocate ’ s autorisation to represent the party in a particular case;

...”

The Code of Civil Procedure reads:

Article 98. Reimbursement of the expenses to pay for the assistance of an advocate or trainee advocate

“1. The party, in whose favour the judgment was made shall be awarded by the court from the other party the expenses for the assistance of the advocate or trainee advocate who participated when hearing the case as well as for help in preparing the court documents and providing consultation. These expenses cannot be awarded if the claim to award them and the proof confirming the size of the expenses are not submitted by the end of the hearing of the case on the merits.

2. A party ’ s expenses connected with the assistance of an advocate or trainee advocate, taking into consideration specific complexity of the case and the expenditures of labour and time of the advocate or trainee advocate, shall be awarded in an amount no greater than that established in the payment size recommendations approved by the Minister of Justice together with the Chairman of the Council of the Lithuanian Bar Association.

3. The provisions of this article shall be applicable when awarding expenses to pay for the assistance of the advocate or trainee advocate who represented the party in the court of each instance.”

In administrative case no. A-63-2176-11, decided on 28 October 2011, the Supreme Administrative Court considered the issue of compensating the litigation costs of the plaintiff who had earlier obtained a favourable decision in an administrative case against the police. The Supreme Administrative Court relied on Article 44 §§ 1 and 6 of the Law on Administrative Proceedings, as well as on Article 98 §§ 1 and 2 of the Code of Civil Procedure (see above). Noting that in the earlier administrative case the plaintiff ’ s appeals against the police had been upheld, the Supreme Administrative Court considered that the expenses of legal representation which that plaintiff had had in that case – EUR 450 – had to be compensated. The administrative court also pointed out that the sum requested did not exceed the sums for legal assistance recommended by the Ministry of Justice.

In administrative case no. 153-579/2012, decided on 13 April 2012 by the Kaunas Regional Court, that court also held that EUR 320, the legal costs which the plaintiff had in connection with administrative litigation regarding a parking fine of EUR 23 which had been lifted as having been imposed by the municipality without ground, had to be compensated by the State. The Kaunas Regional Court noted that under Article 31 of the Constitution a person had a right to access to court. The court also pointed out that neither the Code for the Administrative Law Violations, nor any other piece of legislation, explicitly provided for a possibility to compensate legal representation costs for the person in respect of whom the administrative decision had been quashed as unlawful. That notwithstanding, and relying on the Constitutional Court ’ s rulings of 13 December 2004 and 19 August 2006 (see above), the Kaunas Regional Court held that the municipality had an obligation to organise proceedings against a person in such a manner that his or her rights were not infringed. If those rights were infringed, the person ’ s material losses had to be compensated.

Afterwards, the municipality appealed against the Kaunas Regional Court ’ s decision, but its appeal was left unexamined on technical grounds.

COMPLAINTS

Relying on Article 13 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants complain about the courts ’ refusal to award them litigation costs which they had in connection with administrative court proceedings when successfully challenging the fines imposed by the State Labour Inspectorate. The applicants argue that even after successful litigation, they had to bear adverse consequences. The applicants note that the goal of their administrative litigation was to avoid paying fines which had been imposed on them. However, given that their pecuniary loss exceeded those fines, notwithstanding that the fines had been lifted, it would have been more worthwhile for them not to have initiated court proceedings at all.

QUESTION to the parties

Has there been a breach of the applicants ’ right to access to court, as provided for in Article 6 § 1 of the Convention, on account of the fact that the courts refused to compensate the legal expenses incurred by the applicants during administrative court proceedings when challenging fines imposed on them by the State Labour Inspectorate (see Steel and Morris v. the United Kingdom , no. 68416/01, §§ 59-62, ECHR 2005 ‑ II ; UrbÅ¡ienÄ— and UrbÅ¡ys v. Lithuania , no. 16580/09, §§ 43-46, 8 November 2016, and the case-law cited therein; see also, mutatis mutandis , Handölsdalen Sami Village and Others v. Sweden , no. 39013/04, §§ 51-59, 30 March 2010 )?

The parties are requested to provide examples of recent domestic case law as to the possibility to obtain compensation for legal representation costs in administrative court proceedings.