Information Note on the Court’s case-law 41

April 2002

Bertuzzi v. France (dec.) - 36378/97

Decision 16.4.2002 [Section II]

Article 6

Civil proceedings

Article 6-1

Access to court

Applicant granted legal aid to bring an action against a lawyer unable to find legal representation: admissible

Article 35

Article 35-1

Exhaustion of domestic remedies

Effective domestic remedy

Effectiveness of remedy based on Article L . 781-1 of the Code of Judicial Organisation to complain of the conduct of President of the Bar in the context of granting legal aid: preliminary objection rejected

Effectiveness of remedy in the civil courts based on the civil liability of the President of the Bar in the context of granting legal aid: preliminary objection rejected

Effectiveness of a disciplinary appeal to the prosecutor in respect of the failure of the President of the Bar to appoint a legal aid lawyer: preliminary objection rejected

In June 1995, the applicant was granted full legal aid to bring an action for damages against a lawyer. The three lawyers appointed successively by the chairman of the b ar asked to be relieved of their legal aid duties on account of their personal ties with the lawyer in question. Following these withdrawals, in November 1995, the applicant submitted a request to the legal aid office for a new counsel, and this was passed on the chairman of the bar. In March 1997, the applicant received a reply from the chairman of the bar informing him that the decision to award him legal aid in June 1995 had lapsed and that he should therefore renew his request if he wished to continue p roceedings against the lawyer concerned. The applicant had meanwhile requested legal aid in another case. This was refused on the grounds that he had not produced the necessary documentation concerning his income. This decision was upheld on appeal.

Admis sible under Article 6 § 1 regarding the decision to grant the applicant full legal aid: failure to exhaust domestic legal remedies - the Government had not supplied information to establish the effectiveness of the available remedies to secure damages on w hich it relied: an action for damages based on the chairman of the bar's civil liability and an action for negligence by the legal aid office (based on Article L 781-1 of the Judicial Code). The latter Code set very strict admissibility conditions (evidenc e of "gross negligence" or "refusal to decide a case") and the only domestic decision cited by the Government did not establish that, at least by the date that the application had been lodged, the French courts had interpreted the notions of "gross neglige nce" or "refusal to decide a case" sufficiently broadly to include, for example, the conduct of a chairman of the bar in a legal aid case. Besides, a disciplinary appeal against the chairman of the bar to the Prosecutor General at the Court of Appeal could not be deemed an available remedy since the applicant, who had not been assisted by a lawyer, could not have been expected to understand all the arcana of judicial or disciplinary remedies against a chairman of the bar.

Inadmissible under Articles 6 § 1 and § 3 (c) concerning the refusal to grant the applicant legal aid because he had failed to produce the necessary documentation concerning his income. The refusal to grant legal aid had been the consequence of the applicant's own failure to act. Moreove r, the applicant had been fully familiar with the legal aid system since he had already been granted it in 1995 in connection with another case: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does n ot bind the Court.

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