The right to obtain sufficient information about available legal remedies and the ECHR

Andraž Teršek, Associate Professor of Law, University of Primorska Slovenia, email: andraz.tersek@upr.si

Jurij Toplak, Professor of Law, University of Maribor Slovenia, email: jurij.toplak@um.si

Introduction

The right to an effective legal remedy and the right to access court, guaranteed by Articles 13 and 6 of the European Convention on Human Rights, require that the law is clear on which legal remedy is available in a certain situation, and what is the procedure to invoke it. In this blog post, we present a case currently pending at the European Court of Human Rights (ECHR). The ECHR will consider whether the applicant’s rights were violated because he had no way of knowing what was a proper legal remedy in his situation.

The rules on legal remedies should be clear and easily understandable

The highest national courts usually require that an applicant first exhausts all available remedies with the lower courts. Constitutional courts often do not accept appeals if the appealants have not tried to solve cases in the lower courts.

Similarly, international tribunals, including the ECHR, expect that applicants have exhausted all available domestic remedies. The right to an effective legal remedy (Article 13) and the right of access to court (Article 6) require that the law is clear on which legal remedy is available, what is the procedure to invoke it, and authorities need to make this information easily accessible for applicants. If it is unclear what is the correct legal remedy, or if people do not have information on the proper legal remedy, their rights under Articles 6 and 13 might be violated.

European states’ practices differ. Some judiciaries have straightforward and easy-to-understand systems of legal remedies, while others do not. Plaintiffs and lawyers usually rely on legislation or case-law to know which remedies to use, what are the deadlines for filing appeals and where to send them. In many European democracies, courts include this information in judgments (an individualised “notice of legal remedies” or a “remedy notice”) or judges give this information to the parties orally in the court.

In Slovenia, the courts are extremely strict on the application of the exhaustion of legal remedies. The Supreme Court requires any case it hears to have previously been tried by lower courts. The Constitutional Court requires that the applicant has used all available legal remedies, including the Supreme Court, before applying to the Constitutional Court. It is commonly understood among Slovenian lawyers that filing a constitutional appeal is not allowed until all possibilities with the Supreme Court are exhausted.

Second-tier courts do not inform the parties about legal remedies

In Slovenia, there is one exception to the rule that the Supreme Court needs to try a case before the applicant can appeal to the Constitutional Court. It is in a rare case when a person is found guilty of a misdemeanour by courts at two levels, and intends to file a constitutional appeal with the Constitutional Court to claim that their constitutional rights have been violated. An applicant needs to exhaust the Constitutional Court’s procedure before filing a petition to the ECHR.

 In Minis v Slovenia, the applicant appealed against the Ljubljana Local Court judgment. The Ljubljana Higher Court, which is the second-tier court, rejected the appeal as unfounded. The judgment of the Local Court contained a notice of legal remedies, but the Higher Court’s judgment did not. While first-level courts’ judgments always include instructions on available legal remedies (a “notice of legal remedies”) and the deadlines to invoke them, second-tier courts do not, or state that “no legal remedy is possible.”

The applicant relied on its lawyers’ understanding of the legislation that, before they submit a Constitutional Court appeal, they must exhaust legal remedies at Supreme Court level. The applicant’s and its lawyers’ understanding was in line with a commonsense understanding of the law, and with the interpretation of most lawyers, law professors, and others who read law. It was also in line with general teachings and textbooks regularly used at the law faculties. There was no reason for him to doubt what the lawyers said and he had no reason to look into the case-law for a different interpretation.

The applicant sent a request to the Supreme Prosecutor’s Office to start proceedings at the Supreme Court with a request for the protection of legality. This was the last legal remedy available to the applicant before a Constitutional Court appeal. The Supreme Prosecutor’s Office denied the request.

The applicant then filed a Constitutional Court appeal. The Constitutional Court dismissed the appeal as being filed out of time. The appeal must be filed within 60 days of the exhaustion of the last legal remedy. The Constitutional Court requires the applicants exhaust Supreme Court-related remedies first, including the request for the protection of legality (see Slovenian Constitutional Court’s (SCC) decisions Up-374/17, 6. 7. 2017; Up-624/11-16, 3. 7. 2014).

In this rare situation, however, the practice of the Constitutional Court is that it counts the 60-day deadline from the decision of the Higher Court and that filing a request for the protection of legality, which is the last legal remedy before the Constitutional Court appeal, does not count towards the deadline. The Constitutional Court, in its case-law, holds that the request for the protection of legality, when filed with the Supreme Court, is considered a “legal remedy”. However, when the request is filed with the Supreme Prosecutor’s Office, it is not considered a “legal remedy”. Numerous attorneys, including large attorney firms, have missed the 60-day deadline due to this misunderstanding (SCC Up-58/98, 5. 7.2000; Up-80/94, 23. 11.1995; Up-58/98, 5. 7. 2000; Up-748/04, 22. 3. 2005).

The applicant argues that by not giving any “notice on legal remedies” in the Higher Court’s judgment, and not making it clear in the legislation what is the correct legal remedy and the procedure to invoke it, Slovenia violated his rights to an effective legal remedy and access to court.

The applicant claims that when the legislation is unclear, or when a legal provision causes such problems in application or interpretation, the Higher Court should have included a proper notice of legal remedies in the judgment. Because Slovenia did not rectify the legislation to make it clear, and the courts did not give clear instructions to the parties, Slovenia violated their rights.

Only those who have at least once missed the deadline know this rare rule

 When the law seems clear at first, and most reasonable people interpret it the same way, it is unreasonable to expect that parties or applicants will examine case-law to find out whether the Constitutional Court might have interpreted it differently.

We asked several law professors, four attorneys, a former Constitutional Court judge, and a current Constitutional Court judge. They were confident that an applicant first needs to exhaust all opportunities to get a decision from the Supreme Court, and only then are they allowed to file an appeal with the Constitutional Court. Even those who read the Constitutional Court’s case-law regularly have never heard of this rare situation in which the request, submitted to the Prosecutor’s Office, does not count towards the deadline for the submission of the constitutional appeal. When we informed them of the applicant’s situation, they were all surprised, and they said that they had not known it. Only those who had in the past mistakenly submitted the appeals to the Constitutional Court after they had submitted the request to the Supreme Prosecutor know this rule.

The Constitutional Court’s working policy helps the court to avoid dealing with constitutional complaints. It can quite hardly be seen as safeguarding the rule of law, legal transparency, making legal remedies effective and gaining the goal of effective legal protection of constitutional rights.

The authorities of any country should take measures to make the legal remedy system understandable for applicants. They should do this by either including notices of legal remedies in judgments, or by not rejecting constitutional appeals as strictly as they do. The applicant should have been given clear information on what is the correct legal remedy either in the judgment or in legislation.

The ECHR has previously stated (Horvat v Croatia, §41) that in the absence of sufficient case-law on how different conditions for accepting constitutional complaints were interpreted and applied, the constitutional appeal could not be regarded as an effective remedy. The Constitutional Court Act states that a constitutional complaint is allowed only after all other legal remedies have been exhausted, and it must be filed within 60 days from the reception of the individual act against which a constitutional complaint is possible. The legislation also states that the legal remedy of last resort before the constitutional appeal is the “request for the protection of legality”.

The dismissal of the applicant’s constitutional appeal impaired the very essence of their right of appeal (see Osu v Italy, 11 July 2002, §35,; Vrbica v Croatia, §72 and Majski v Croatia (no. 2), §69.). Furthermore, the legal notice on the judgment of the second instance court did not warn the applicant of the Constitutional Court practice. In Majski v Croatia (no. 2), the ECHR found that such lack of clarity is not allowed (§69). Similar conclusions can be made by applying the principles put forth in Depauw v Belgium and Provide S.r.l. v Italy, §18.

 The ECHR has underlined the importance of the right to obtain sufficient information to enable a person to gain effective access to the relevant procedures and to substantiate their complaints (Hirsi Jamaa v Italy, §204). For asylum seekers in particular, the ECHR has stressed the right to receive information about the procedures to be followed. For every other person too, however, “the lack of access to information concerning the procedures to be followed is clearly a major obstacle in accessing those procedures” (M.S.S. v Belgium and Greece, §§304–309. A “very ambiguous” law is not in line with the Convention.

When legislation is written in a way that most reasonable people interpret it the same way, it is unreasonable to expect that parties or applicants will search case-law to find out whether this interpretation is wrong. If numerous misinterpretations and wrongly submitted appeals show that it is hard to understand what is the correct legal path and deadline, authorities should take measures either to include proper notices of legal remedies in judgments, amend the legislation, inform lawyers and the public about it in some proactive way to avoid future misinterpretation, or interpret the legislation in favour of allowing appeals.

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ECHR Case Law Comment

An interesting and useful article by the Law Professors in Slovenia, M.r Teršek and Mr.  Toplak, on an important issue which concerns European citizens as well as lawyers, regarding the right of the parties to obtain sufficient information from the courts on available legal remedies. An excellent approach to the fundamental rights of the effective legal protection and access to a court for their case-law development before the European Court of Human Rights. (Note by Vassilis Chirdaris echrcaselaw.com editor).