GÄHWILER v. SWITZERLAND

THE LAW — A. Exhaustion of domestic remedies

The Court observes at the outset that the Federal Court rejected the applicant’s complaint against the Cantonal Court’s denial of legal aid for failure to comply with the requirements for the statement of reasons for a complaint. This raises an issue as to the exhaustion of domestic legal remedies. The Court observes, however, that this question is closely linked to the refusal of legal aid.

In any event, even assuming that the applicant could be said to have satisfied the requirement of exhaustion of domestic remedies, the Court finds that his application must be declared inadmissible for being manifestly ill-founded for the reasons set out below.

The applicant complained that the Cantonal Court had refused his application for legal aid for appeal proceedings and that subsequently the Federal Court had refused to admit his complaint against this decision for adjudication as well as to grant him legal aid for the proceedings before it. His complaint falls to be examined under Article 6 § 1 of the Convention, the relevant part of which provides:

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

1. Principles deriving from the Court’s case-law

The Court reiterates that, as it has held on many occasions, the right of access to court is part of the guarantees of Article 6 § 1 of the Convention (see, among other authorities, Kreuz v. Poland, no. 28249/95, § 52, ECHR 2001‑VI).

It further reiterates that, where a Contracting State sets up an appeal system, it is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees in Article 6 as well (see Del Sol v. France, no. 46800/99, § 21, ECHR 2002‑II; Essaadi v. France, no. 49384/99, § 31, 26 February 2002).

Nonetheless, the Court emphasizes that the right of access to court is not absolute but may be subject to limitations permitted by implication as the right of access by its very nature calls for regulation by the State. Thus, while the Contracting States enjoy a certain margin of appreciation in this respect, it rests with the Court to ultimately decide on the observance of the Convention’s requirements by the Contracting States in the exercise of their power of appreciation (see, among other authorities, Essaadi, cited above; Kreuz, cited above, § 53, and Pedro Ramos v. Switzerland, no. 10111/06, § 33, 14 October 2010). In doing so, the Court examines whether a restriction placed on access to a court pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the legitimate aim sought to be achieved (see Kreuz, cited above, § 55; and Pedro Ramos, cited above, § 37).

In that context, the Court recalls that its task is not to substitute itself for the competent domestic authorities in determining the most appropriate means of regulating access to court, nor to assess the facts which led those courts to adopt one decision rather than another (see Kreuz, cited above, § 56; and Pedro Ramos, § 38).

The Court further reiterates that there is no obligation under the Convention to make legal aid available for all disputes in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance (see, among other authorities, Del Sol, cited above, § 20; Essaadi, cited above, § 30; and Pedro Ramos, cited above, § 41). However, in discharging the obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6. It is also essential for the legal aid system to offer individuals substantial guarantees to protect those having recourse to it from arbitrariness (see, among other authorities, Staroszczyk v. Poland, no. 59519/00, § 129, 22 March 2007).

The Court recalls that a legal aid scheme cannot work without a system which allows for selecting suitable applicants for legal aid. The requirement of reasonable prospects of success cannot as such be deemed arbitrary (see, among other authorities, Del Sol, cited above, §§ 20-23; and Pedro Ramos, cited above, § 41).

Furthermore, the Court has previously noted – in respect to the legal aid scheme set up by the French legislature for proceedings before the French Court of Cassation – that the lack of an arguable ground of appeal was undoubtedly intended to meet the legitimate concern that public money should only be made available to applicants for legal aid whose appeals have a reasonable prospect of success (Del Sol, cited above, § 23).

2. Application of the above principles to the present case

The Court notes at the outset that the applicant requested legal aid according to sections 74 § 1 and 77 of the Code of Civil Procedure; i.e., he not only requested to be released from the duty to pay an advance on the court costs but also requested the court to appoint a lawyer free of charge.

The Court considers it important to have due regard to the quality of a legal aid scheme within a State (Del Sol, cited above, § 25; Pedro Ramos, cited above, § 49). In this regard, the Court has previously observed that the Swiss regulations on legal aid in proceedings before the Federal Court – and their application by the courts – complied with the Convention (Pedro Ramos, cited above, § 33). The Court put special emphasis on the fact that the decision on the request for legal aid for proceedings before the Swiss Federal Court was taken by that court itself, i.e., by a judicial body (Pedro Ramos, cited above, § 50). The same is true for the present case where the decision not to grant legal aid was taken by the president of the court for the chamber.

The Court further notes that in Pedro Ramos the applicant had been granted legal aid on the Cantonal level but not the Federal level whereas the present case concerns the refusal of legal aid on the Cantonal level. This does not, however, change the overall assessment of the Court in Pedro Ramos that the Swiss legislature has put in place a legal aid scheme that provides for sufficient safeguards against the arbitrary denial of financial support in court proceedings. In addition, as the applicant in Pedro Ramos, the applicant in the present case was granted legal aid for the proceedings before the lower court.

It is true that in Pedro Ramos the Court could verify that the Swiss Federal Court had duly considered the prospects of success of the intended legal proceedings as it had been provided with the Federal Court’s internal report on this case (see Pedro Ramos, cited above, § 51). Nonetheless, in the present case the Cantonal Court has duly albeit shortly reasoned its decision not to grant legal aid.

The Court observes in this regard that the Cantonal Court based its decision not to grant the applicant legal aid on two grounds: the lack of sufficient prospects of success of the appeal and the applicant’s failure to establish his financial incapacity. Either one of these two aspects would have sufficed to refuse the applicant legal aid. There is nothing to indicate that the Cantonal Court did not duly assess the prospects of success of the appeal or to suggest that its finding was arbitrary in any way.

The Court further observes that under the Swiss legal aid scheme a party whose request for legal aid is refused by a cantonal court may file a complaint to the Federal Court. Thereby, the Swiss legislature provided an additional safeguard against an arbitrary refusal of legal aid.

The Court notes again in this regard that the Federal Court rejected the applicant’s complaint against the Cantonal Court’s decision to refuse him legal aid for failure to duly address the reasons for his complaint. In the light of the fact, however, that the applicant did not at all address the Cantonal Court’s assessment of his appeal’s prospects of success in his statement of complaint to the Federal Court, there is nothing that suggests that the requirements for a complaint to the Federal Court were applied in an unreasonably strict manner.

Against this background, the Court considers that the applicant’s right of access to court has not been violated by the refusal of legal aid.

The Court, thus, finds that the applicant’s application is manifestly ill‑founded in accordance with Article 35 § 3 (a) of the Convention and must hence be rejected pursuant to Article 35 § 4 of the Convention.