CONCURRING OPINION OF Mr N. BRATZA

With some hesitation I have voted in favour of a finding of a violation of Article 6 para. 1 of the Convention in the present case.

I accept that the proceedings which the applicant wished to institute would have involved a determination of his civil rights and obligations and that, given the likely value of the claim, such an action would have been required to be introduced in the Royal Court, with the consequence that the applicant would have needed legal assistance to present and pursue the claim.  Moreover, while I have certain doubts as to whether on the facts any such claim would have stood any real prospect of success, I do not consider that it can be said that the applicant’s claim was not arguable.

My hesitation relates to the finding of the majority of the Commission that the applicant had insufficient means to pay for the necessary legal services in connection with possible civil proceedings and that, in any event, the applicant’s failure to comply with the agreement reached with Advocate F for the payment of her fees in the criminal proceedings precluded him from being represented on a remunerated basis by another advocate in his civil proceedings.

As to the former point, I see some force in the Government’s argument that the information provided about the applicant’s financial situation during the relevant period is scanty.  In this regard, it is of some relevance that Advocate F clearly must have considered that the applicant had the means to pay for his representation in the criminal proceedings, since otherwise she would not, under the terms of the voluntary legal aid rota scheme, have made a charge for her legal services.  Nor, presumably, would the applicant himself have agreed to pay Advocate F’s fees by instalments had he been financially unable to do so.

As to the latter point, I also see force in the Government’s argument that the applicant has given no explanation as to why he did not pay the agreed instalments or as to whether he made any, and if so what, efforts to discharge his debt so as to permit him to engage another advocate in his proposed civil action.

In the end, however, I am persuaded that neither point has sufficient weight to enable me to reach a different conclusion from the majority of the Commission.

In its Airey judgment (Eur. Court HR, Airey case, judgment of 9 October 1979 Series A no. 32), the Court recognised that, while Article 6 para. 1 guarantees to litigants an effective right of access to the courts for the determination of their “civil rights and obligations”, it leaves to the State a free choice of means to be used towards this end.

The underlying problem in the present case is that there exists no coherent system in Guernsey for ensuring that a prospective litigant whose case raises serious issues which would clearly require legal representation and who cannot afford such representation, can gain effective access to court to have the issues determined.  More specifically, there exists no domestic body in Guernsey with the function of examining whether a litigant’s claim stands any reasonable prospects of success, whether the claim is such as to justify legal representation and whether the litigant is in a financial position to afford such representation, and with the power to provide legal representation or the funds for such representation in the event that the litigant is without adequate means.

In the absence of such a system, where, as here the applicant plausibly shows before the Commission that his claim is an arguable one and that he was not in a financial position to afford the necessary legal representation, a lack of effective access to court is established.

[1] The applicant subsequently accepted that this date was mistaken and that the particular events complained of had occurred on 27 June 1989.

[2] The term  former  refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.