DISSENTING OPINION OF JUDGE Å IKUTA JOINED BY JUDGE MYJER

1. To my regret, I am unable to agree with the majority ’ s conclusion that there has been no violation of Article 6 of the Convention, for the following reasons.

2. By way of introduction, I would summarise this case as follows. The applicant ’ s lawyer made a professional mistake, which was recognised by the ordinary courts. As a result of the mistake, the applicant ’ s original problem could not be dealt with by the domestic courts, which would otherwise have had jurisdiction to deal with it (the administrative judiciary).

Relying on unequivocal provisions of substantive law concerning professional liability of lawyers, the applicant then sued his lawyer for damages.

Although there nominally was a judge to entertain the action, it proved practically impossible for the action to succeed as it depended on elements that the judge had no jurisdiction to examine.

3. I have no difficulty in agreeing with the position of the domestic courts, and indeed the majority of the Chamber, that the right of access to a court does not imply the right to the successful outcome of the proceedings. However, as the situation of the applicant in the present case has shown, there appears to be a total structural and systemic impossibility for such claims as the one in the present case even to be argued before Slovakian courts, let alone to succeed.

4. I respectfully submit, and explain in detail below, that such a practical obliteration of any compensation claim, be it as a result of flaws in the interpretation or application of the law or as a result of the law itself, cannot be in keeping with Article 6 § 1 of the Convention and the rule of law in general.

5. For that matter, it may be useful to reiterate that the right to a fair hearing, as guaranteed by Article 6 § 1 of the Convention, must be construed in the light of the principle of the rule of law, which requires that all litigants should have an effective judicial remedy enabling them to assert their civil rights (see Běleš and Others v. the Czech Republic , no. 47273/99, § 49, ECHR 2002-IX). In this way the right to a fair hearing embodies the “right to a court”, one aspect of which is the right of access, that is the right to institute proceedings before courts in civil matters (see Golder v. the United Kingdom , 21 February 1975, § 36, Series A no. 18; Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 43, ECHR 2001-VIII; and Roche v. the United Kingdom [GC], no. 32555/96, § 116, ECHR 2005-X).

6. Thus, everyone has the right to have any claim relating to his civil rights and obligations brought before a court or tribunal (see, among many other authorities, Waite and Kennedy v. Germany [GC], no. 26083/94, § 50, ECHR 1999-I).

7. A restrictive interpretation of the right of access to a court guaranteed by Article 6 § 1 would not be consonant with the object and purpose of the provision (see De Cubber v. Belgium , 26 October 1984, § 30, Series A no. 86).

8. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Ashingdane v. the United Kingdom , 28 May 1985, § 57, Series A no. 93, and Prince Hans-Adam II of Liechtenstein , cited above, § 44).

9. As far as the present case goes, I would agree with the majority that, within the Court ’ s limited power to scrutinise questions of compliance with domestic law (see, mutatis mutandis, Beyeler v. Italy [GC], no. 33202/96, § 108, ECHR 2000-I), the domestic courts ’ findings in terms of domestic law are not to be questioned.

10. However, contrary to the view of the majority, I consider that, even in such a state of affairs, the Court was required to examine the implications of the existing legislative situation and its implementation for the applicant ’ s rights under Article 6 § 1 of the Convention, bearing in mind that the Convention is intended to guarantee rights that are practical and effective (see, for example, Sabeh El Leil v. France [GC], no. 34869/05, § 50, 29 June 2011).

11. In this context I would emphasise the constitutional importance of legal assistance from the point of view of effective exercise of the right of access to a court and indeed from the point of view of the effective functioning of the broader concept of the rule of law (see, for example, Airey v. Ireland , 9 October 1979, Series A no. 32). Noting the privileged relationship of confidence between the lawyer and the client, I consider that the lawyer ’ s professional liability is an inherent key feature of that relationship and indeed of the legal service in a democratic society governed by the rule of law.

12. Applying the above general premises to the facts of the present case, I hold the view, unlike the majority, that this is not a fourth-instance case but rather a case of lack of access to a court in respect of legal malpractice lawsuits against a lawyer.

At the same time, I am of the view that this case reflects a general position in Slovakia and potentially in other Contracting States. It therefore concerns a structural and systemic problem.

13. It should be reiterated that the applicant ’ s compensation claim had a clear basis in substantive law (see, in particular, paragraphs 39 and 41 of the judgment) and its relevance was strengthened by the fact that practising lawyers in Slovakia are bound by statute to take out and maintain professional liability insurance (see paragraph 42 of the judgment).

14. The claim consisted of three components: ( i ) the breach of his lawyer ’ s duty of care; (ii) the occurrence of damage; and (iii) the existence of a causal link between the former two components.

15. The first component was established before the ordinary courts and there has not been any argument to the contrary. Suffice it to recapitulate that, instead of lodging an administrative appeal against the decision of 28 November 1996 and, as appropriate, challenging the decision on the administrative appeal by way of an administrative-law action, the lawyer lodged an administrative-law action directly against the decision of 28 November 1996 (see paragraph 19 of the judgment). It should be added that the lawyer also failed to challenge the decision of 30 September 1998 by means of an administrative appeal (see paragraph 26 of the judgment), the decision on which could then, as appropriate, have been challenged by way of an administrative-law action.

16. The second and third substantive elements of the applicant ’ s claim have proven more problematic. In particular, it was necessary for the applicant to establish the existence and extent of the damage suffered by him and the causal link between this damage and the breach of duties by his lawyer. In view of their nature, these elements were interlinked and depended on the hypothetical outcome of the administrative proceedings which the applicant ’ s lawyer failed to pursue with the requisite care.

17. As mentioned above and in the judgment itself, the administrative proceedings, the hypothetical outcome of which the applicant was required to demonstrate, would in the normal course of events have taken place before an appellate administrative agency as far as the decisions of 28 November 1996 and 30 September 1998 are concerned, before a Regional Court (sitting as an administrative tribunal) in the event of a negative decision on the administrative appeal against the decision of 28 November 1996 and before the Supreme Court (sitting as an administrative tribunal) in the event of a negative decision on the administrative appeal against the decision of 30 September 1998.

18. However, relying on Article 135 of the Code of Civil Procedure, in respect of the applicant ’ s legal malpractice claim, the ordinary courts at two levels of jurisdiction, the Constitutional Court and also the public prosecution service came to the conclusion that the ordinary courts had no jurisdiction and power of review as regards the substantive aspect of administrative decisions and that they could not take the place of the above mentioned administrative agencies and tribunals, pre-empt the outcome of the administrative proceedings before them and serve as a substitute for them by determining matters of substance within those bodies ’ jurisdiction.

19. In other words, as established by the domestic courts in the instant case, there was procedurally no way for the applicant to have the remaining two elements of his claim examined and established on account of the domestic courts ’ lack of jurisdiction.

20. The ultimate result of the interpretation and application of the existing domestic rules, or, where appropriate, the non-existence of other rules, is that the applicant ’ s compensation claim has been rendered practically incapable of being asserted before the courts. At the same time, it appears that the applicant alone has been made to bear the consequences of these deficiencies in interpretation, application and legislation.

21. The repercussions of the practical impossibility for the applicant to assert a malpractice compensation claim against his lawyer were all the more significant as, owing to his lawyer ’ s error in the original administrative proceedings, the applicant had effectively been deprived of access to a judicial review of the impugned decisions of the tax authorities.

22. I am fully aware of the practical difficulties in establishing the extent of any real damage caused by a lawyer to his or her client, inter alia on account of the potentially differing levels of creditworthiness of the entity faced with the original claim and the lawyer sued for malpractice.

23. Moreover, I certainly do not mean to suggest that, in a situation such as that in the present case, the full amount of what was at stake in the original proceedings should be compensated by the lawyer at fault. After all, had the original proceedings not been hindered by the lawyer ’ s mistake, they might still have had a negative outcome for the client.

24. While the devising of a viable compensation mechanism is a task for the legislature, I, for my part, could imagine that these difficulties could be surmounted, for example, by establishing the missing elements of the compensation claim by means of one or more expert opinions aimed at determining the client ’ s relative likelihood of success in the original proceedings.

25. A comparative study of the existing practice in this area in the other Contracting States would certainly have shed light on possible solutions and, in my view, would have been appropriate in view of the significance of the problem.

26. Be that as it may, in the present case, within the existing legislative framework, there was no procedural forum for the applicant to make his claim and to address the difficulties mentioned above in any way, all this despite the existence of an ample substantive legal framework for legal assistance with professional liability at its heart.

27. At the same time, nothing has been adduced by the Government or established otherwise to justify the applicant ’ s lack of access to a court as regards his legal malpractice compensation claim.

28. In particular, there is no indication that the applicant could have pursued any claim aimed at obtaining compensation in respect of his former lawyer ’ s malpractice before the ordinary courts or in the context of disciplinary proceedings, or that he would have had any greater prospects of success in seeking the settlement of his claims with any other entity such as, for example, his former lawyer ’ s insurer than with the lawyer herself.

29. Moreover, in my view, on a conceptual level, the existing rules on liability, as applied in the present case, in practice amount to a general structural impossibility of asserting procedural malpractice claims against the lawyer concerned and, by implication, to pecuniary impunity on the lawyer ’ s part, rendering the concept of professional liability of lawyers practically meaningless.

30. I consider that the results described above cannot be reconcilable with the spirit, object and purpose of the Convention.

Accordingly, the application was rightly declared admissible under Article 6 § 1 of the Convention, and in my opinion, there has been a violation of that provision.