MARIANI-BELLUCCI v. SWITZERLAND

THE LAW

11. The applicant complained about the Federal Supreme Court’s refusal to examine the merits of her complaint. She relied on Article 6 of the Convention, the relevant part of which provides:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

12. The applicant submitted that the Federal Supreme Court had examined the admissibility of her complaint with excessive formalism. It had, in particular, failed to take into account that the petition had been submitted by a lay person. Under these circumstances, the Federal Supreme Court should have granted her a time-limit to amend her petition. It was practically impossible for a lay person to lodge a petition without being represented by counsel. This amounted to a denial of justice.

13. The applicant further considered that the reasoning she submitted, and, in particular, the reference to retroactive social benefits, made sufficiently clear that she pursued her original request to be granted a disability pension.

14. In the case of Andreyev v. Estonia (no. 48132/07, § 66-68, 22 November 2011), the Court has summarised its case-law on the right of access to a court of appeal or of cassation as follows:

“66. The Court reiterates that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (see Sabeh El Leil v. France [GC], no. 34869/05, § 50, 29 June 2011; Andrejeva v. Latvia [GC], no. 55707/00, § 98, 18 February 2009; Kulikowski, cited above, § 58; Siałkowska, cited above, § 101; and Airey v. Ireland, 9 October 1979, § 24, Series A no. 32).

67. Furthermore, the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard. However, these limitations must not restrict or reduce a person’s access in such a way or to such an extent as to impair the very essence of the right. Furthermore, such limitations will only be compatible with Article 6 § 1 if they pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim pursued (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 44, ECHR 2001‑VIII; RTBF v. Belgium, no. 50084/06, § 69, 29 March 2011; Kemp and Others v. Luxembourg, no. 17140/05, § 47, 24 April 2008; Běleš and Others v. the Czech Republic, no. 47273/99, § 61, ECHR 2002-IX; and Edificaciones March Gallego S.A. v. Spain, 19 February 1998, § 34, Reports 1998-I).

68. The Convention does not compel the Contracting States to set up courts of appeal or of cassation. However, where such courts do exist, the guarantees of Article 6 must be complied with (see Delcourt v. Belgium, 17 January 1970, § 25, Series A no. 11). The manner in which this provision applies to courts of appeal or of cassation depends on the special features of the proceedings concerned and account must be taken of the entirety of the proceedings conducted in the domestic legal order and the court of cassation’s role in them. Given the special nature of the court of cassation’s role, which is limited to reviewing whether the law has been correctly applied, the Court is able to accept that the procedure followed in such courts may be more formal (see Meftah and Others v. France [GC], nos. 32911/96, 35237/97 and 34595/97, § 41, ECHR 2002-VII; Khalfaoui v. France, no. 34791/97, § 37, ECHR 1999-IX; Kulikowski, cited above, § 59; and Siałkowska, cited above, §§ 103-104). Nevertheless, the Court has in several cases found that a particularly strict construction of procedural rules by the supreme or constitutional courts deprived applicants of their right of access to a court (see, among others, Běleš and Others, cited above, § 69; Zvolský and Zvolská v. the Czech Republic, no. 46129/99, § 55, ECHR 2002-IX; Efstathiou and Others v. Greece, no. 36998/02, § 33, 27 July 2006; Kemp and Others, cited above, § 59, 24 April 2008; Reklos and Davourlis v. Greece, no. 1234/05, § 28, 15 January 2009; Dattel v. Luxembourg (no. 2), no. 18522/06, § 44, 30 July 2009; and RTBF, cited above, § 74).”

15. In the instant case, the Court’s task consists in examining whether the reasons given by the Federal Supreme Court for refusing the applicant’s complaint deprived the applicant of her right of access to a court. The Court will thus examine whether the limitations imposed on the right of appeal pursued a legitimate aim and were proportionate (compare Kemp, cited above, § 51).

16. The Court notes, at the outset, that the Federal Supreme Court relied on Article 42 § 1 of the Federal Law on the Federal Supreme Court, prescribing that legal petitions had to contain the request for relief. Under the case-law referred to by the Federal Supreme Court, this meant that it was, as a rule, not sufficient to request that the impugned decision be quashed, but that the petition had to contain a request on the merits. The Court considers that the procedural rule relied upon by the Federal Supreme Court pursued a legitimate aim. In fact, the prerequisites contained in Article 42 § 1 had the clear aim of allowing the Federal Supreme Court to conduct a first examination of the complaint without prior consultation of the case-file (compare, mutatis mutandis, Kemp, cited above, § 53).

17. It remains to be determined whether the Federal Supreme Court applied this provision in a proportionate way. The Court will thus proceed by examining the way in which the applicant presented her complaint to the Federal Supreme Court and on which grounds it was rejected.

18. As to the content of the applicant’s petition, the Court observes that the applicant requested the Federal Supreme Court to quash the judgment of the Administrative Court. She further mentioned that the case concerned social benefits and submitted that the Administrative Court had failed correctly to assess the evidence. The Federal Supreme Court observed that the applicant’s petition did not contain a statement as to how the court should decide on the merits. Neither was this information contained in the reasoning submitted by the applicant. The applicant had, in particular, failed to submit which sort of benefits she claimed.

19. The Court observes that the applicant did not mention in her submissions to the Federal Supreme Court that she requested to be granted a disability pension, but merely referred in a general way to social benefits, without, however, further specifying which sort of benefits she claimed. The Court accepts the domestic court’s assessment that this information was relevant for the examination of her complaint. It can thus not be said that the rejection of the applicant’s complaint was based on purely formalistic grounds.

20. The Court takes note of the applicant’s submissions that her counsel had informed her merely three days before the expiry of the relevant time‑limit that she would not lodge a complaint on her behalf. The Court appreciates that it must have been difficult for the applicant to draft her complaint on her own within such a short period of time. The Court observes, however, that the applicant managed to draft a complaint and that she did not submit any specific reasons which could have prevented her from specifying her request on the merits. Furthermore, it does not appear from the applicant’s submissions that she informed the Federal Supreme Court about these difficulties. Under these circumstances, the Court does not consider that the Federal Supreme Court was under an obligation under Article 6 of the Convention to allow the applicant to amend her submissions.

21. In the light of the above considerations, the Court considers that the Federal Supreme Court’s decision not to accept the applicant’s complaint was not disproportionate in the instant case. Accordingly, there is no appearance of a violation of the applicant’s right of access to court.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.