95.  The applicant claimed 200,000 euros (EUR) in respect of non-pecuniary damage. He explained that the unfounded accusations against him in the  <mask> at issue, namely that he had had sexual relationships with minors and had used his position to secure the gains of criminals, accusations which had been continuously repeated in the media, had harmed his dignity and reputation and created an extremely negative image of him, which had caused him severe mental suffering. Furthermore, the stress caused by the proceedings led to his hospitalisation for cardiac difficulties and high-blood pressure.


24.  The Government objected that Article 6 was not applicable to contempt of court proceedings. They argued that the proceedings in question did not fall under the criminal limb of the aforementioned provision according to the three criteria used by the Court. Firstly, the proceedings were not classified as criminal. The fine was imposed by a civil court, which decided on the matter of its own motion, meaning that there was no prosecutor in the case. The fine was not entered into any criminal record and the personal circumstances of the offender were not taken into account when determining the sentence, as was the case in criminal proceedings. Secondly, the purpose of the proceedings was to ensure order in court, and their nature was similar to  <mask>.


87.  The Government submitted that the applicant had failed to comply with the exhaustion of domestic remedies rule in Article 35 § 1 of the Convention. They submitted that under domestic law there existed remedies sufficient to allow redress in cases of alleged medical malpractice in that criminal investigations, civil compensation proceedings and professional  <mask> could be instituted in such cases. The applicant had availed himself of these remedies. Criminal investigations were pending and it could not therefore be said that the competent authorities had remained totally passive in the examination of the circumstances of the applicant’s wife’s death or that the investigations which had been undertaken were so ineffective as to make recourse to the domestic remedies meaningless. Likewise, disciplinary and civil proceedings were pending. Hence, the applicant’s complaints were premature.


44.  The Government maintained that the applicants had not exhausted the domestic remedies available to them, in that they had failed to lodge with the higher courts complaints about the first instance court's alleged failure to consider the case in due time. The Government stated that such complaints might have resulted in  <mask> against the first instance judges, dealing with the case.


168.  The applicant also complained that the  <mask> concerning her had been confidential, and more specifically that neither the proceedings before the CSM nor those before the Supreme Court had been public. In her submission, neither the CSM nor the Judicial Division of the Supreme Court had ever held a public hearing in disciplinary proceedings. Hence, although the applicant had formally requested a public hearing before both the CSM and the Supreme Court (in the proceedings in issue in application no. 74041/13), her request had been refused on each occasion, despite the existence of a dispute as to the facts, namely the content of her alleged remarks. In her view it had been necessary, in order to assess the evidence, to test the credibility of the statements of the only witness against her, the judicial investigator F.M.J. Against that background, in her submission, the taking of evidence on this point had been essential in order to secure her defence rights.


37.  The Government accepted that Article 6 applied under its civil head to the  <mask> at issue, but contested that it applied under its criminal head. Referring to the criteria established by the Court’s case-law for classifying an offence as “criminal”, the Government submitted, firstly, that disciplinary law was not part of criminal law in the Austrian legal system. Disciplinary offences were not dealt with by the criminal courts and the Supreme Court as last instance, but by specialised disciplinary authorities under the supervision of the Constitutional Court. Secondly, the Government noted that unlike criminal law, which applied generally, disciplinary law applied to members of specific professional groups, such as lawyers, notaries, doctors, judges or other civil servants, and was aimed at maintaining the confidence of the public in certain professions which were of importance for the functioning of public life. The Appeals Board’s considerations when setting the sanction in the present case emphasised the specific character of disciplinary law, in that it focused on the damage which the applicant’s conduct had caused to the general public’s confidence in the legal profession. Thirdly, turning to the nature and severity of the penalties at stake, the Government noted that although the sanction imposed had a decisive impact on the applicant it was not primarily deterrent in nature, but was aimed at restoring the confidence of the general public. In addition they noted that striking a lawyer off the register did not necessarily have a permanent effect, as it was possible to re-apply for admission after three years.


12.  The applicants complained under Article 6 § 3 (c) of the Convention of the lack of legal representation and, in the alternative, of legal aid for their hearing before the prison governor in the  <mask> brought against them under the Prison Rules. In determining whether Article 6 was applicable to the proceedings the Court referred, at § 126, to § 82 of Engel and Others (cited above), and then stated the following:


147.  The applicant complained that the RUC took steps to have  <mask> brought against the solicitor, Mrs C., who represents her in domestic proceedings, alleging that she had disclosed witness statements to the applicant's representatives before the Court. In particular, they used submissions to the Court which contained extracts from these statements to seek to punish Mrs C. because the applicant sought to inform the Court fully about the circumstances surrounding this application. She argued that the likely impact of their actions would be to restrict the ability of the Court to deal properly with cases of this nature and dissuade applicants from taking cases to Strasbourg.


60.  The Government contested the claims for damages, arguing that the applicant's submissions regarding the possibility of having found a new position as bailiff were mere hypothesis. In particular, and given his suspension from office on account of the  <mask>, the chances of his re-employment in the public service were slim. As to the claims in respect of non-pecuniary damage, the Government maintained that they would be adequately compensated by the finding of a violation given the applicant's conduct and the fact that he received his full salary throughout the proceedings.


55.  The Government referred to section 23 (2) of the Disciplinary Act, which states that no disciplinary decision may be issued before the termination of criminal proceedings relating to the same facts as those which gave rise to the disciplinary offence. They argued that the  <mask> de facto only started on 24 May 2004, when the Vienna Court of Appeal’s final judgment in the criminal proceedings was served on the Disciplinary Council. The proceedings were then conducted with reasonable speed and were terminated by the Constitutional Court’s decision of 28 February 2006.


27.  The Government argued that the case was a complex one and that the domestic courts could not be criticised for not being active in the proceedings at issue. Before being quashed by the Constitutional Court, the case was decided by a final decision in five years and seven months, despite the involvement of seven instances. They pointed out that the applicant made use of virtually all available legal remedies in the relevant proceedings. He also requested that criminal and  <mask> be instituted against the judge and lodged a compensation claim against the State. While admitting that to make use of those remedies was the applicant's right, the Government stated that it should not be ignored that dealing with them required additional time. In particular, the first-instance court did not have in its possession the case-file for more than a year due to the institution of separate proceedings.


35. The Government further submitted that in any event the cumulative preconditions set out in Eskelinen had not been met as the “right to a court” covered only the right to institute proceedings before courts and the right to have a final, binding judicial decision. However, under German law the applicant could neither institute  <mask> against himself nor could he appeal against the institution of such proceedings. The fact that he was able to defend himself in the proceedings merely ensured a fair trial but did not prove that he had a “right to a court”.


99.  The Government submitted that after the applicant had lodged a complaint with the local Chamber, an inquiry into the cause of death of his had wife started. These proceedings had subsequently been stayed, regard being had to other sets of proceedings concerning the same act pending at that time. The reasons for the staying of the  <mask> were justified since the results of the criminal investigations might have had an impact on the final decision of the Chamber of Physicians.


56.  The applicant submitted that the automatic forfeiture of his retirement benefits upon the imposition of the penalty of dismissal had not been in the public interest and could not be considered justified or proportionate. The applicant had pleaded guilty to twenty-four charges in the criminal proceedings and had been sentenced to five years’ imprisonment. The Assize Court when sentencing the applicant had taken into account the seriousness of the offences and had explained why a custodial sentence was appropriate and why it could not be suspended. Despite the fact that the penalty provided by the domestic law ranged from three years’ imprisonment to life imprisonment, as part of the arrangement reached with the Government the applicant had received a five year sentence, which he had served. The applicant had also repaid the amount taken as part of the deal. The PSC had then through  <mask> decided to impose the strictest punishment provided by the law, namely dismissal. In the applicant’s view the above had constituted an adequate response to his misconduct and had been commensurate to the damage to public confidence. However, as a result of the dismissal he had also been automatically deprived of all his retirement benefits, including his pension which had been earned during his thirty-three years of employment as a civil servant. This could have been avoided if the PSC had imposed compulsory retirement, which would not have affected his retirement rights. Consequently, even though the applicant had repaid his debt to society having been convicted by a criminal court, served a prison sentence, reimbursed the amount due, and lost his job, all his retirement benefits were forfeited, exposing him to great financial and emotional hardship. The applicant had been subjected to a triple punishment, which was contrary to the principles of international law and the spirit of the Convention, as no one should be punished more than once for the same offence. Furthermore, the punishment was of a continuing nature: the longer the applicant lived the harsher the punishment was, as he remained without a pension.


55.  The applicant, who received EUR 630 in  <mask> from the Council of Europe in connection with the presentation of his case, also claimed, in total, EUR 6,758 for the costs and expenses incurred both before the domestic courts and before the Court. The applicant did not submit any receipt or invoice in support of his claims. He relied on the Diyarbakır Bar Association’s recommended minimum fees list.


26.  The Government maintained that the Supreme Court had rightly dismissed the applicant’s  <mask> request since legal aid was not available under the domestic law for administrative proceedings. They submitted that Article 6 § 1 did not place an obligation to provide legal aid for every dispute relating to a “civil right”. The issue to be determined in the present case was whether the lack of legal aid deprived the applicant of a fair trial and breached his right to present his case effectively in the appeal proceedings he had lodged. However, none of the factors set out in the Court’s relevant case-law were applicable in the present circumstances, where the lack of legal aid did not operate to deprive the applicant of a fair trial.


81.  The Government noted that Article 6 § 1 of the Convention guaranteed litigants an effective right of access to court. However, the Contracting States had a free choice as to the means to be used to that end and were not compelled to provide free  <mask>, unless the assistance of a lawyer proved to be indispensible by reason of the complexity of the procedure (see Airey v. Ireland, 9 October 1979, § 26, Series A no. 32).


40.  The applicant considered that the domestic case-law referred to by the Government was not applicable to the case at hand. She reiterated that her ownership rights to the apartment had been terminated by the judgment passed in the criminal proceedings, and that the judgment had been upheld on appeal. Therefore, any attempts to address the issue of the right of ownership by means of civil or administrative court proceedings, or even constitutional proceedings, would not have yielded positive results. The applicant also pointed out that although she had reached the legal age of majority by the time the criminal proceedings were at their final stages, she had not been able to fully exercise her rights and represent herself, because she lacked proper education and legal knowledge, especially in the circumstances, as she had never been informed about the decision, her right to participate in the hearings, or her right of appeal against the decision of the court. Lastly, the applicant submitted that she had had insufficient income to pay for legal representation, several lawyers had refused to represent her, and State  <mask> had not been available in those circumstances.


82.  The applicant complained that the proceedings concerning his sick leave, that is the second and fifth sets of proceedings, had been unfair and discriminatory. The applicant further submitted that he had not received any  <mask> during the second set of proceedings. With respect to the first set of proceedings, the applicant also complained about the lack of a public hearing.


36. The Government pointed out that, in order to compensate for potential disadvantages resulting from delays occurring within the competent court, domestic law provided that the running of time for the purposes of limitation was retroactively suspended with effect from the day a request for  <mask> was lodged, if the notification of a request for legal aid was arranged “shortly after” it was lodged. The Government submitted that it was constant case-law of the domestic courts that the term “shortly after” was to be interpreted in such a way that the risk of a delayed notification was distributed fairly between both parties to the dispute and, therefore, the litigant concerned must have acted with the necessary diligence to effect the immediate notification and there must not be legitimate interests of the defendant that conflicted with such retroactive effect. The Government submitted that the applicant had not acted with the necessary diligence as he had at no point indicated the particular urgency of the matter, namely, the imminent limitation of the claims, nor had he asked the Regional Court to arrange for immediate notice of the request for legal aid to be given to the defendant, which he could have done without any costs or procedural disadvantages. The defendant, who learned about the applicant’s intention to bring legal action against her only two and a half years after the expiry of the limitation period, had a legitimate interest that the notice did not have retroactive effect.


13.  The applicant argued that while the proceedings were not complex there were some legal issues of an exceptional nature. However, there were significant delays in the course of the proceedings. In particular, he referred to a delay of six months in waiting for a defence to his original claim to be lodged. It took twenty-two months to hear the defendant's motion for a split trial and thirteen months to obtain  <mask> to commission expert reports. Finally, three months were lost while the defendant refused to accept service of one of these reports. He did not accept that certain of the delays in the course of the proceedings were attributable to him and argued that all delays were attributable to his solicitors, for whom he could not be held responsible, the defendants and the competent authorities. As to what was at stake for him, the applicant argued that as a result of the negligence of CJM, he and his family had suffered due to a shortage of funds from 1993 until judgment was given in 2003.


135.  The Government have not contested that  <mask> for free legal representation was not available for these applicants before 1 June 1997, when they introduced regulations to make provision for legal aid before a magistrates’ court following Benham (see paragraph 87 above). Nor is it contested that what was at stake for them and the complexity of the issues before the magistrates, as in Benham, required that in order to receive a fair hearing these applicants ought to have benefited from free legal representation during the proceedings before the magistrates which led to their committal to prison.


90.  The Government averred that the applicants had failed to pursue their case actively. The fact that a  <mask> lawyer had been appointed to represent them had not exempted them from the obligation of due diligence, binding on all parties to civil proceedings. In the present case, they had informed their lawyer about their request to have the second‑instance judgment served on them; they had not sent him a letter asking him to take steps to lodge a cassation appeal against this judgment and had failed to check with the registry of the court whether this judgment had been served on him.


59.  The applicant, who had been granted  <mask>, claimed an estimated total of EUR 6,000 in costs and expenses for legal fees incurred in the proceedings before the Court. He further claimed an estimated total of EUR 15,000 for costs and expenses incurred before the domestic courts. He claimed an additional amount in the range of EUR 30 to EUR 40 for copying costs and postal charges without specifying which part of this sum had been incurred before the domestic courts or the Court.


42.  The Government pointed out that the existence of a legal burden of proof was not unique to English law of defamation, but was almost invariably a feature of every civil legal action. The fact that, in the present case, that burden rested upon the applicant as defendant did not, they said, indicate that he must be provided with  <mask>.


78.  The Government submitted that the claims for legal fees incurred during the domestic proceedings were excessive and not sufficiently specified as to the time spent on every measure. They also noted that Mr Rosengren had represented six petitioners who were not applicants in the present proceedings. Furthermore, the hourly rate claimed exceeded the Swedish hourly  <mask> fee, which for 2013 was SEK 1,552.50 (VAT included). In total, the Government accepted compensation for the domestic proceedings in the amount of SEK 62,125 (approximately EUR 6,800), corresponding to 30 hours of work by Mr Rosengren and 10 hours by Mr Ebbesson. As regards the proceedings before the European Court, the Government found also these claims excessive, noting that both representatives were already familiar with the circumstances of the case as they had acted on the applicants’ behalf in the domestic proceedings. The compensation for the present proceedings should thus not exceed SEK 54,375 (approximately EUR 5,900), corresponding to 20 hours of work by Mr Rosengren and 15 hours by Mr Ebbesson. Finally, the Government submitted that the compensation should be reduced in the event that the Court found a breach of the Convention in relation to only part of the applicants’ complaints.


35.   The Government submitted that the applicant had failed to exhaust relevant domestic remedies. She should have brought a civil action for compensation against the legal‑aid lawyer. They were of the view that a civil action was an effective remedy where a lawyer, either  <mask> or privately hired, was negligent in carrying out his or her duties regarding legal representation in judicial proceedings. They also referred to a complaint to the local Bar Association under Article 28 of the Bar Act.


80.  The applicant claimed PLN 51,000 in respect of the non-pecuniary damage she had suffered in connection with the case and PLN 32,965 for the pecuniary damage resulting from the loss of her disability pension. The applicant, who was granted  <mask> for the purposes of the proceedings before the Court, further claimed EUR 3,500 for the costs incurred in connection with the domestic proceedings and the proceedings before the Court.


24.  The applicant argued that by refusing his  <mask> request the Malatya Administrative Court had breached his right of access to court. In that connection, he maintained that the required court fees were excessive. He further claimed that he had been denied legal aid although he had submitted evidence attesting to his poor financial situation and establishing that he had a well-founded case.


46.  The Government admitted that the right to State  <mask> had not been explained to the applicant by the civil court. However, in their view, the Code of Civil Procedure did not expressly provide for an obligation on a court to instruct the parties to proceedings of such a right. Neither could a right to State legal aid be regarded as one of the procedural rights of the parties. Article 161 of the CCP merely provides that a presiding judge may suggest that a party obtain legal representation in the proceedings, should he or she consider that party to be incapable of adequately protecting his or her rights. This right of a court, as opposed to an obligation upon it, is to be exercised in compliance with the other principles of civil proceedings, such as the principle that the parties control the litigation (principle of disposition), and after having assessed the particular circumstances of each case. Above all, the applicant herself had not made any submissions to the civil court of first instance about her inability to submit certain evidence or inability to represent herself effectively, in which case the court could have examined such submissions and possibly advised the applicant to seek legal representation. However, as was clear from the case file, the applicant had failed to indicate any difficulties of such a kind. Moreover, the case file did not contain any indications as to the applicant’s inability to state her case effectively or provide evidence.


96.  The applicants accepted that the right of access to a court did not encompass also a right of access to a court competent to examine appeals on points of law. However, if the legislature chose to create such court, it should respect the principles of procedural fairness in the procedure before it. These principles applied also to the proceedings in which the party's access to that court was determined. Under applicable Polish legislation, these principles had not been observed properly, as indicated by the Supreme Court in its resolution of 21 September 2000. It had emphasised therein a certain conceptual confusion to be noted in the provisions governing  <mask> as a whole, mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure. The applicants stressed that these systemic shortcomings had manifested themselves in the concrete circumstances of their case.


142.  The Government considered that the amount claimed by the applicant was manifestly excessive and that it had no relation to normal legal costs in human-rights litigation in Malta. Moreover, the applicant had not provided any proof that the expenses incurred in Malta had been taxed according to law. Without being obliged to do so, he had engaged the services of celebrity London barristers, whose fees were notoriously higher than those of Maltese lawyers. Under these circumstances, the Government were of the opinion that the applicant should bear most of the fees he had incurred and that a fair assessment of the costs and expenses should be made in accordance with the  <mask> rates applicable in Strasbourg proceedings.


57.  The Government contested the claim, arguing that the applicant was represented by  <mask> counsel and did thus not have to bear any costs at the domestic proceedings; furthermore the costs and expenses incurred in the domestic proceedings did not serve to prevent the long duration of the proceedings. Moreover, the costs claimed for the proceedings before the Court were excessive.


23.  The applicant argued that, owing to his mental state, he should have been legally represented throughout the criminal proceedings against him. Since he had had no means to pay for legal representation, the interests of justice required that a  <mask> lawyer be assigned to him right at the beginning of his trial. Although he had made such a request orally before the presiding judge of the trial court, it had not been recorded in the transcript. His further written request had not been answered. It had not been until he had already lodged an appeal against the first-instance judgment that the appeal court had remitted the case to the first-instance court and a legal aid counsel had been assigned to him – at a very late stage in the proceedings. However, the officially assigned counsel had never attempted to contact the applicant and had not provided him with an address or telephone number at which to contact him.


86.  The Government drew attention also to the fact that the applicant had been entitled to  <mask> for legal representation before the court martial, was offered such aid subject to a “modest” down-payment in line with that which would have been required in the civilian courts, and chose to decline the offer. It followed, according to the Government, that the defending officer was not, and was never intended to be, a substitute for a legal representative. They contrasted the position with criminal proceedings in the civilian context where, if an accused refused an offer of legal aid, he would generally have to represent himself at trial. The Government highlighted that the applicant had the right to select his own defending officer from outside his own unit, and that he was provided with a document informing him of this right in October 1996, but had chosen not to do so.


37.  The Government further submitted that the new  <mask> Act, in force since 1 January 2006, made provision for effective legal aid in all sorts of proceedings. Under that Act, counsel had to be appointed under the legal aid scheme in every case where legal representation was mandatory by law. The competent authority had to appoint such counsel of its own motion or upon the request of the individual concerned. The legal aid scheme was administered by the National Legal Aid Bureau and the bar councils and was funded by the State budget. That legislative arrangement, which was applicable to all proceedings commenced after it had come into force, was fully in line with the requirements of Article 6 §§ 1 and 3 (c) of the Convention.


18. The Government submitted that the applicant had failed to exhaust relevant domestic remedies. She should have brought a civil action for compensation against the legal‑aid lawyer. They were of the view that a civil action was an effective remedy where a lawyer, either  <mask> or privately hired, was negligent in carrying out his or her duties regarding legal representation in judicial proceedings. They also referred to a complaint to the local Bar Association under Article 28 of the Bar Act.


65.  The applicant submitted that, having been served by her  <mask> lawyer with the copy of the second-instance judgment on 6 December 2004, she had believed that the thirty-day time-limit for lodging a cassation appeal had started to run, according to information provided for by Z.W, on 9 October 2004. Accordingly, she had been convinced that it had expired on 9 November 2004. Even assuming that she had known that on 6 December she had still had three days within which to lodge a cassation appeal, she did not have any realistic opportunity to have a legal aid lawyer assigned to the case within such a short time and to have the appeal lodged on her behalf.


44.  The Government submitted, first, that the applicant was legally aided until May 1996, and so his costs up until that date had already been reimbursed. Once his  <mask> certificate was discharged the applicant acted in person and did not, therefore, incur any legal costs. In any event, any legal costs and expenses incurred by the applicant during the domestic proceedings were not caused by the alleged violation of the Convention, and would have been incurred whether or not the proceedings had been determined within a reasonable time.


81.  The Government considered that the total amount of compensation for costs and expenses should not exceed EUR 2,000 (without VAT), from which sum any  <mask> granted by the Court should be deducted. Part of the costs and fees claimed concerned complaints which the Court had declared inadmissible, nor did the applicants’ medical expenses in any way relate even to the complaints which had been declared admissible.


91.  The Government argued that this aspect of the applicant's complaint should be restricted to the MP's press statement, since any cause of action in respect of his speech would have been bound to fail and thus could not have required the provision of  <mask>. They submitted that the national authorities had determined within their margin of appreciation that it was not in the public interest to allocate limited legal aid resources to the pursuit of defamation actions. However, they pointed out that, as of July 1998, it had been open to the applicant to seek legal assistance by way of a conditional fee arrangement. The “Green Form” scheme would also, they said, have allowed the applicant to secure initial advice on the strength of any claim.


43.  The Government further submitted that, at a hearing held on 3 February 2009, the applicant had given up on the idea of commissioning a report from an expert. Moreover, he had not provided further evidence and had not raised an objection when the first-instance court had set aside its decision of 22 December 2008. They also pointed out that the applicant had failed to prove that he had not been able to pay the costs of the expert‑witness report, because he had failed to submit a certificate from the competent tax authority confirming his income and assets, as provided for under the relevant rules of the Civil Procedure Act. He had also had a possibility to ask for  <mask>, as provided for in the Legal Aid Act, which would have allowed him to be exempted from paying the costs of an expert witness. Lastly, had he succeeded in the proceedings, his opponent would have reimbursed all his litigation costs.


40.  The Government also contended that  <mask> had been granted to both applicants when they had complained of a violation of their right to a fair trial and about not being provided with legal aid. Moreover, they stated that the requirement to be assisted by a lawyer in the cassation proceedings was not contrary to requirements of Article 6 of the Convention. The fact that the applicants were rejected legal aid to prepare their cassation appeal did not impair their right of access to court as their cassation appeal would have probably been rejected as not raising important legal issues.


80.  The applicant argued that he was not able to institute proceedings for damages for his allegedly unlawful detention on remand. Given the complex nature of court proceedings for damages, he could not have prepared the action himself. Although  <mask> was granted by the Telšiai District Court, M.M., the lawyer assigned to represent the applicant under the free legal aid scheme, refused to lodge an action on his behalf.


41.  The applicant argued that in the proceedings before the administrative courts the time-limit for lodging a cassation appeal started to run on the date when the judgment of the regional administrative court with its written grounds was served on the party concerned. It was open to that party to apply for  <mask> afterwards. However, when legal aid was subsequently granted and a legal-aid lawyer was assigned to the case after the expiry of the thirty-day time-limit, he or she could only ask for retrospective leave to appeal out of time. As the applicable provision of the Act on the Procedure Before Administrative Courts provided for a seven-day time-limit for taking procedural steps out of time, the time‑limit for the actual preparation of a cassation appeal was then effectively shortened to only seven days. Moreover, it was left to the court’s discretion to grant leave or refuse it. That procedural framework was burdensome and, importantly, also unclear.


34.  The Government submitted that the German  <mask> system was compatible with the Convention, as was the Court of Appeal’s refusal to grant legal aid for lack of prospects of success. It pointed out that the criterion applied by the Court in this respect was whether the domestic courts’ decisions appear arbitrary. In view of the detailed decision of the Court of Appeal, which dealt in depth with the applicant’s arguments and with the case-law of the Federal Court of Justice, the Government argued that there was no appearance of arbitrariness.


24.  The Government argued that the relevant provisions of the Code of Criminal Procedure did not require the applicant to be defended by a lawyer in the criminal proceedings at issue. They maintained, further, that at the hearing held on 13 July 2004 before the Pula Municipal Court the applicant had been informed of his right to be legally represented but had chosen to represent himself in person. The report of the applicant's psychiatric examination showed that the applicant maintained the capacity to participate in the proceedings against him. Finally, his request for a  <mask> lawyer had been complied with at the appeal stage.


33.  The applicant contested the Government's submissions. He pointed out that although  <mask> could cover exemption from court fees, such exemption was only temporary and could be revoked within three years of termination of the proceedings if the financial situation of the party concerned had changed. Regarding the possibilities under section 9 §§ 1 and 2 of the Judicial Collection Act, the applicant claimed that he did not qualify for application of this provision. He referred to the case-law of the Administrative Court, arguing that it only accepted in cases of default of payment that the collection of court fees would cause special hardship.


76.  The applicant claimed 1,437.50 Cyprus pounds (CYP) for the costs and expenses incurred before the domestic courts. This sum included CYP 500 for the proceedings before the Family Court, CYP 750 for those before the Supreme Court and CYP 187.50 in VAT at a rate of 15 % on the above amounts. She provided the Court with an invoice in this respect. The applicant, who received  <mask> from the Council of Europe for her representation in the present case for the proceedings before the Court, did not seek reimbursement of the relevant costs.


92.  The applicant submitted that her inability to secure  <mask> for the purposes of bringing defamation proceedings in respect of the untrue allegations made against her violated her right of access to a court under Article 6 § 1. She argued that the Commission's case-law dismissing complaints against the United Kingdom about the non-availability of legal aid in defamation proceedings was limited to the facts of each case. She maintained that it would have been wholly unrealistic to expect her to commence proceedings as a litigant in person, since she had no formal qualifications and was an unmarried mother of two young children. She argued that publicly funded legal assistance was particularly warranted on the facts of her case due to her financial situation and the severity of the consequences of the MP's allegations both for her and for her children.


34.   The applicant submitted that he was not to blame for this error, since it was the Assistant Advocate for  <mask> who had signed the relevant appeal application. He submitted that in the present case he required representation, both because according to Maltese law the signature of an advocate was mandatory in all written pleadings, and because this field of law (emphyteusis) was complex and required experience to guarantee any chances of success.


35.  The applicant company contested these arguments. It emphasised from the outset that the instant case was of general relevance for the effective legal protection of small third-world companies doing business in Germany and Europe. As German companies were typically financially stronger than their third-world partners they were, as a rule, in a position to dictate German law and a German venue for their contractual relationships. The denial of  <mask> would, therefore, be an incentive for them to drive their third-world counterparts into bankruptcy, as they would be protected from legal prosecution by the denial of legal aid.


84.  The applicant complained about the lack of involvement in the proceedings regarding his incapacitation. As a result of those proceedings, however, he had been deprived of all of his “human and civil” rights and, in his words, had had no right to appeal to any court on any grounds. He also complained of a lack of assistance on the part of the Akmenė District Court, which had refused to give him a copy of his incapacitation decision, and the  <mask> Service, which had not supported him when he had attempted to have his legal capacity restored. Another example of this lack of effective access to justice was his forced hospitalisation on 13 March 2007, when a lawyer he had never met had “represented” him during the hearing of that day at the Šiauliai District Court. He argued that the lawyer had in fact represented the interests of the Šiauliai Psychiatric Hospital, which earlier that day had asked the Legal Aid Service to secure a lawyer. It was not the practice of the Šiauliai Psychiatric Hospital for a person who was treated there to have a lawyer to represent his interests.


84.   The Government submitted that P. had been provided with  <mask> but her lawyers withdrew as they were being asked to conduct the case unreasonably. The judge carefully considered the applicant's application for an adjournment to allow her to instruct new lawyers and balanced all the relevant factors. The judge found that she was able to conduct her own case adequately and would be assisted by counsel for the other parties, while he himself allowed her considerable leeway. He concluded that the result of the proceedings was not affected by any lack of legal representation. In the circumstances and with particular regard to the expert evidence that, in order to prevent damage to S., any decision on her long-term future had to be both made and if possible implemented before her first birthday, the applicant was not deprived of fair and effective access to a court.


52.  The applicant accepted that he could have sought judicial review of the decision by the Board to refuse  <mask> but argued that he had a good reason for not doing so. He contended that the Government had failed to discharge the burden upon them to show that such an application had reasonable prospects of success and could be determined with reasonable speed. He explained that the grounds for judicial review were limited, being restricted (broadly) to errors of law by the decision-maker or the claim that the conclusion reached was manifestly unreasonable.


41.  The Government submitted that the error in the appeal application could not be attributed to the Advocate for  <mask>, since on that date no legal aid had yet been granted and no legal-aid lawyer had yet been assigned. Moreover, while it was true that Dr M. had signed the application in his capacity as Assistant Advocate for Legal Aid, it had been Dr S. who had drafted the application. The Government contended that the mistake had been deliberate, to avoid immediate eviction while also avoiding the embarrassment of putting forward manifestly unfounded claims. Indeed the applicant, who was not an emphyteutae, was claiming that he should not be evicted, despite the fact that the actual emphyteutae (Caral Ltd) had been evicted and that the emphyteusis contract, to which the applicant had never been a party, had been rescinded. Moreover, the Government considered that the appeal would in any event have been declared deserted, since the applicant’s own address did not allow for service (see paragraph 12 above). As a result, notice of the hearing could never have reached him. In reply to the applicant’s argument the Government also noted that the period of six months for the setting down of a hearing was applicable following the closure of written pleadings (Article 151 of the COCP). In this case, this stage could not be concluded, since the appeal had not been notified.


104.  The applicant’s main objection with regard to the review proceedings lay in the district court’s decision to turn down her express request to be provided with independent  <mask>. The explanation that the applicant was already represented by her guardian’s lawyer had misunderstood the competing interests of the two parties. The effect had been to severely prejudice the ability of the applicant to engage with the procedural aspects of the hearing on which the district court’s decision had turned.


25.  The Government further submitted the case‑law of the Polish civil courts indicated that retrospective leave to appeal out of time could be granted where  <mask> for the purposes of lodging a cassation appeal had been given, but the legal‑aid lawyer could not comply with all the relevant formalities within that time-limit. Had the applicant requested such leave, it was likely that her request would have been granted.


98.  The applicants maintained that it was of little importance that the judgment was finally served on the lawyer on 21 January 2000. Even assuming, as the Government did, that the time-limit for the lodging of the cassation appeal started to run from that date, it did not justify the fact that the conduct of the representation by the  <mask> lawyer had been negligent during a period of more than eight months.


93.  The applicants accepted that there was no obligation under the Convention to make  <mask> available for disputes (contestations) in civil proceedings, as under the Court's case-law there was a clear distinction between the wording of Article 6 § 3 (c), which guaranteed the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which made no reference to legal assistance (Del Sol v. France, no. 46800/99, § 20, ECHR 2002‑II).


12.  The applicants complained under Article 6 § 3 (c) of the Convention of the lack of legal representation and, in the alternative, of  <mask> for their hearing before the prison governor in the disciplinary proceedings brought against them under the Prison Rules. In determining whether Article 6 was applicable to the proceedings the Court referred, at § 126, to § 82 of Engel and Others (cited above), and then stated the following:


18.  The Government argued that the Katowice Court of Appeal had informed the applicant about his legal-aid lawyer's refusal and held that the time-limit for lodging a cassation appeal would start to run anew, starting on the date on which the refusal had been served on the applicant. They reiterated that the mere fact that a  <mask> lawyer could refuse to represent a defendant in proceedings before the highest court could not be said to be, of itself, tantamount to a denial of legal assistance which would have been incompatible with the State's obligations under Article 6 of the Convention. Furthermore, in case of a lawyer's refusal to draft a cassation appeal, the State Parties were not obliged to provide assistance by successive legal-aid lawyers.


86.  The applicant complained under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the overall fairness of the criminal proceedings against him was undermined because he had not been provided with a lawyer after his arrest, had been ordered to pay  <mask> fees for representation in supervisory review proceedings, and because he had not been able to question a witness against him.


39.  The Government have not contested that  <mask> for free legal representation was not available for these applicants before 1 June 1997 at which point they introduced regulations to make provision for legal aid before a magistrates’ court following Benham (see Lloyd, § 87). Nor is it contested that what was at stake for them and the complexity of the issues before the magistrates, as in Benham, required that in order to receive a fair hearing these applicants ought to have benefited from free legal representation during the proceedings before the magistrates which led to their committal to prison.


57.  The applicant claimed reimbursement of the costs and expenses incurred in the proceedings on his second appeal to the Supreme Court as well as in the proceedings before the Commission. Counsel for the applicant had spent 26.4 and 27.6 hours of work respectively on these two sets of proceedings. In the remainder of the domestic proceedings the applicant had been in receipt of Government-funded  <mask>, and in the present proceedings before the Court he had received legal aid from the Council of Europe. The applicant submitted that he had been free to choose whether or not to apply for legal aid and the fact that he had chosen not to do so for his second appeal to the Supreme Court or for his application to the Commission should not be held against him.


46.  The applicant submitted that at the relevant time he had not had concrete information about the whereabouts of his son and the child’s mother or enough knowledge of Italian law to institute proceedings under Article 29 of the Hague Convention. In this light, he had availed himself of the procedure established by Articles 7-9 of the Hague Convention, whereby proceedings could be brought through the relevant Central Authority. In those proceedings, he had been the aggrieved party – despite the fact that it had been the Prosecutor’s Office which had brought the proceedings, as required by the Hague Convention. However, the faults in the  <mask> system in his case had denied him the right to appeal against the decision of the Youth Court by which it had refused to order the return of his son.


34.  The Government admitted that Polish law made legal representation in cassation proceedings compulsory. The courts considering each case had a right to assess whether  <mask> was really necessary, having regard to the circumstances of the case. In the present case, the refusal had not prevented the applicant from lodging a cassation appeal because he could have appointed a lawyer of his choice and could have had such an appeal “filed and signed by an advocate”, as required by law. The fact that the applicant had not seized that opportunity could not, in the Government’s view, be held against the national authorities.


44.   The Government submitted that the applicant had failed to exhaust relevant domestic remedies. He should have brought a civil action for compensation against the legal‑aid lawyer. They were of the view that it was an effective remedy where a lawyer, either  <mask> or privately hired, was negligent in carrying out his or her duties regarding legal representation in judicial proceedings. They also referred to a complaint to the local Bar Association under Article 28 of the Bar Act.


44.  The Government contested that argument, suggesting that the complaint should be declared manifestly ill-founded. In the Government's view, unlike in the case of Tabor v. Poland (no. 12825/02, judgment of 27 June 2006), where the decision refusing to appoint a legal-aid lawyer contained no reasoning, in the present case the domestic court gave reasons for its decision. They submitted that the Regional Court had refused to grant  <mask> on the grounds that the applicant had in fact been represented by a professional lawyer, and that he had failed to inform the domestic court in due time that his lawyer was no longer representing him, and of the reasons for that.


63.  The applicant claimed EUR 7,693 for legal fees, including those incurred before the domestic courts. He further asked to be awarded an amount corresponding to the  <mask> given by the Council of Europe, in respect of costs and expenses. The applicant submitted a time sheet prepared by his legal representative and the Diyarbakır Bar Association’s scale of fees. He further referred to an oral legal fees agreement concluded with his lawyer.


23.  The applicant submitted that the lawyer's refusal had made it impossible for the applicant to proceed further with his case. The Supreme Court had accepted, by way of a resolution given in 2000, that a  <mask> lawyer could refuse to lodge a cassation appeal. However, the existing regulations did not properly address a situation of a legally‑assisted party whose lawyer declined to prepare a cassation appeal. This legislative lacuna had negatively affected the applicant's position. The applicant had been informed of the legal-aid lawyer's refusal after the time-limit had already expired.


75.  The Government argued that in so far as the applicant had complained of erroneous advice as to the time-limit for lodging of a cassation appeal given by his privately hired lawyer, the State could not be held responsible for it. They further argued that the sixty-day time-limit for lodging of that appeal had in the present case started to run on 14 February 2006, when the applicant had been served with the written grounds of the second-instance court’s judgment. The applicant’s request for  <mask> had been allowed on 27 February 2006. The legal-aid lawyer had been assigned to the case on 3 March 2006, forty-two days before the time-limit within which to lodge a cassation appeal was scheduled to expire. On 7 April 2007, one week before the expiry of the time-limit, she had informed the applicant of her refusal. Therefore, the applicant had been represented by the legal‑aid lawyer in a proper manner.


47.  The Government further argued that after the lawyers’ refusals the applicant could have lodged cassation appeals with requests for leave to submit the appeals out of time, provided for by section 87 of the Law on the Procedure before Administrative Courts. The established practice and case-law of the administrative courts provided that a protracted examination of the motion for the grant of  <mask> constituted a basis on which retrospective leave to submit a cassation appeal out of time could be granted.


37.  The Government stressed that the notion of  <mask> was not to be understood as providing legal representation in proceedings in all cases. It also comprised the provision of legal advice on the prospects of success offered by a given legal remedy in the particular context of each case. The lawyers' tasks could not be perceived as following uncritically their clients' instructions and wishes. Hence, the lawyer's refusal to appeal had served the purpose of securing the proper administration of justice by the Supreme Administrative Court.


132.  The Government affirmed that the considerations relevant to the present complaints under Article 6 concerning the availability of  <mask> were examined by the Court in Benham (cited above, §§ 57-64) and in Perks (cited above, §§ 75-76). In the following applications (Group i) the Government accepted that the relevant magistrates’ court hearing had taken place before 1 June 1997 and that there was no feature to distinguish them from the findings in Benham and Perks:


45.  The Government asserted that the proceedings were extraordinarily complex, relating to an international network of firms, involving a number of suspects, necessitating numerous  <mask> requests to the German, Swiss and Austrian authorities, the hearing of countless witnesses and the taking of expert opinions. The exceptional complexity of the case was demonstrated by the fact that the courts allowed an extension of the statutory time-limit for filing an appeal against the conviction.


150.  The Government indicated that some of the expenses claimed had not been incurred in order to prevent or redress the alleged violations of the Convention (namely, expenses for the representation of the applicant in the criminal proceedings). The Government further submitted that some of the expenses claimed were not supported by any documents or bills and that since the applicant had been granted  <mask>, his claims for costs and expenses should be rejected.


69.  The applicant claimed to have spent 35,000 EUR on legal expenses in the proceedings before the German courts for the services of the defence counsel acting for him in addition to the officially appointed defence counsel. The applicant, who received  <mask> from the Council of Europe for the presentation of his case, which was paid to his representative in Strasbourg, further sought the reimbursement of 10,000 EUR for costs and expenses incurred for the services of his lawyer in Zagreb in the proceedings before the Court. Despite having been granted an additional deadline, he did not submit any documentary evidence relating to his request.


31.  The applicant further submitted that during the appeal hearing he had not been represented by counsel. His legal services contract with Mr S. had covered legal representation at the trial stage only, and had not covered the appeal proceedings. He had had no financial means to pay for legal representation in connection with his appeal. His request for  <mask> counsel had, however, been rejected and he had been left unassisted. Given that the case had been complex and involved a severe custodial sentence, and since he had had no legal training or background, he had been unable to defend himself effectively.


82.  The applicant contested these allegations. He alleged, in particular, that the Regional Court had been the only body that could have provided certified copies of the documents requested by the Court’s Registry. He further submitted that his mother, not being a party to the criminal proceedings, had not had standing to copy the documents and that, being in detention and lacking funding for  <mask>, he could not have hired a lawyer to perform this request.


54.  The applicant submitted that the legal-aid lawyer’s refusal to prepare a cassation appeal and the court’s refusal to assign a new legal-aid lawyer to the case rendered the proceedings unfair. He had thereby been deprived of the possibility of having the shortcomings of the proceedings examined by the Supreme Court and of access to that court. The mere fact that he had been granted  <mask> should not have been regarded by the domestic authorities as offering him an effective guarantee that his defence rights would be duly observed. The applicant further criticised the case‑law of the Supreme Court to the effect that the court could only assign a new legal-aid lawyer to the case if it had been shown that the first lawyer had been negligent in his or her task of assessing whether a cassation appeal had any prospects of success. This approach had been followed de facto in his case. The applicant concluded, referring to the Court’s judgments in the cases of Siałkowska v. Poland, no. 8932/05, 22 March 2007 and Staroszczyk v. Poland, no. 59519/00, 22 March 2007, that he could not effectively enjoy his right to defend himself with the benefit of legal assistance, including before the Supreme Court.


17.  The Government stated that in domestic law there were two types of court fees. The first type was a fixed amount established by the Ministry of Finance at the end of each year, and it was published in the Official Gazette. The second type was calculated on the basis of the value of the litigation and varied in each case. They further pointed out that court fees were required in order to ensure the proper administration of justice and prevent vexatious applications. In their observations the Government contended that the decisions regarding  <mask> had been made by the judges on the basis of the case file and that there was no obligation for them to grant it under the domestic law. They argued that in the instant case the applicant had failed to submit the documents attesting to his poverty. In this respect, they stated that the applicant had been represented by a lawyer during the domestic proceedings and thus could have sought legal assistance as regards the documents that would have supported his legal aid request. The Government therefore concluded that the domestic court’s refusal to grant legal aid had not impaired the essence of the applicant’s right of access to court.


31.  The applicant complained that he had not had a fair trial ‒ because he had not been provided with a  <mask> lawyer at any stage of the criminal proceedings ‒ and that the trial court which convicted him had lacked impartiality to the extent that a substantial part of his trial had been conducted in the absence of a prosecutor. He relied on Article 6 of the Convention, which reads, insofar as relevant, as follows:


74.  The applicant submitted that the compatibility of the  <mask> system in civil cases in Poland, and in particular the issue of refusals to lodge cassation appeals by legal aid lawyers should be seen against a general background governing cassation appeals introduced into the Code of Civil Procedure in 1996 as applicable at the material time. She drew the Court's attention to Articles 393, 393 1 and 393 3 of that Code as applicable at the material time which, read together, defined conditions under which cassation appeals were deemed fit to be examined by the Supreme Court.


71.  The Government submitted that the applicant had failed to exhaust relevant domestic remedies. They asserted that he should have brought a civil action for compensation against the legal‑aid lawyer, referring to either Article 415 or Article 448 of the Civil Code. They were of the view that a civil action was an effective remedy where a lawyer, either appointed through  <mask> or privately hired, had been negligent in carrying out his or her duties regarding legal representation in judicial proceedings. They also referred to a complaint to the local Bar Association under Articles 28 or 80 of the Bar Act.


62.  The Government further submitted that although the State was not responsible for the actions of the lawyer, it had nevertheless remedied the fact that the applicant had had no access to the Supreme Court because of the failure of the advocate to file a cassation appeal within the time-limit by providing new State  <mask> to the applicant for filing a request for the reopening of the case after the Bar Association had ascertained the breach of duty by the advocate. The new legal-aid lawyer had filed a request for the reopening of the case with the Supreme Court on the grounds that the former counsel’s failure to file a cassation appeal within the time-limit had meant that the applicant had had no access to the Supreme Court. The Supreme Court had examined the request for the reopening of the case and had decided not to accept it for proceedings.


56.  The Government first argued that the application was incompatible ratione personae with the provisions of the Convention. In the present case the court had acknowledged the need for the applicant to be represented by a  <mask> lawyer and such a lawyer had been assigned to the case. However, any disagreements that might have arisen between the applicant and the lawyer in connection with the issue of lodging of the cassation appeal had not incurred the liability of the State. The lawyer had been a member of an independent and self‑governing professional association, which adopted its own rules of conduct and disciplinary regulations. The public authorities did not exercise any direct control over the methods of the lawyers' work and could not impose on a legal aid lawyer an obligation to draw up a cassation appeal.


50.  The applicant, relying on Article 14 taken in conjunction with Article 6 of the Convention, alleged that, in his position of insolvency administrator of the company, he was an impecunious litigant and was discriminated against compared to a litigant with sufficient financial means. He submitted that an impecunious litigant depended on a judge, who must arrange for notice to be given to the defendant of the request for  <mask>, to suspend the running of time for purposes of limitation. If he were a litigant with sufficient financial means, who could have lodged an action without requesting legal aid, the claims at stake would not have become time-barred.


53.  The Government submitted that the Court should be slow to impose a duty to provide  <mask> in civil cases, in view of the deliberate omission of any such obligation from the Convention. In contrast to the position in criminal proceedings (Article 6 § 3 (c)), the Convention left Contracting States with a free choice of the means of ensuring effective civil access to court (the Government relied on Airey v. Ireland, judgment of 9 October 1979, Series A no. 32, pp. 14-16, § 26). States did not have unlimited resources to fund legal aid systems, and it was therefore legitimate to impose restrictions on eligibility for legal aid in certain types of low priority civil cases, provided such restrictions were not arbitrary (see Winer v. the United Kingdom, no. 10871/84, Commission decision of 10 July 1986, Decisions and Reports (DR) 48, p. 154, at pp. 171-72).


32.  The applicant submitted that he had lodged a request for  <mask> which complied with all requirements – and which turned out to be successful when it was decided upon in May 2007 – on 30 December 2004, that is, prior to the statutory time-limit. He had thus done all he was required to do in order to suspend the running of time for purposes of limitation. The act required for suspending the running of time for purposes of limitation – namely arranging for notice to be given to the defendant – was outside his sphere of influence.


50.  The Government emphasised that the primary issue was not whether the lack of  <mask> as such constituted a violation of Article 6. Nor was it of immediate relevance how the applicants had financed their counsels in the domestic proceedings or how their financial situation had been affected by the legal costs incurred. Instead, the crucial issue was whether the applicants had been afforded a reasonable opportunity to present their case effectively under conditions that had not placed them at a substantial disadvantage vis-à-vis the landowners, and thus whether they had been granted a fair hearing within the meaning of Article 6. The Government maintained that this was the case and argued that the applicants had been represented by legal counsel during the entire domestic proceedings and had been able to appeal to the Court of Appeal and the Supreme Court. Moreover, during the major part of the proceedings, they had been assisted by two counsels, one of whom was a member of the Swedish Bar Association. In the Government's opinion, there was nothing to indicate that the legal representation was insufficient or that the courts handled the issue of legal costs in an unreasonable way or otherwise in contravention of domestic law. The Government further pointed out that the applicants' opposite party had not been a powerful company like, for example, McDonalds in the case of Steel and Morris v. the United Kingdom (no. 68416/01, ECHR 2005-II), but had mainly consisted of private individuals. Thus, the parties had been on a relatively equal footing. Moreover, the applicants had been granted advantageous interest-free loans from the Sami Fund to enable them to pursue and accomplish their action.


27.  The applicant maintained his complaint. He argued that the judicial authorities had not explained his right to take part in the appeal hearing and that he had not been aware of the procedure to follow. If the authorities had taken his conduct as a waiver of his rights, they should have obtained his respective written statement. He could not afford legal assistance by a lawyer of his own choosing therefore the appeal court should have appointed  <mask> counsel to represent him.


67.  The Government argued that the refusal of  <mask> for the applicant’s second appeal was not incompatible with his Article 6 rights. They accepted that denial of legal aid could, in certain circumstances, amount to a failure to ensure a fair hearing under Article 6 § 1. However, they pointed out that the Convention did not grant a general right to legal aid in civil cases: there was no obligation for States to make legal aid available for every civil dispute, and far less for multiple appeals. Having regard to the fact that resources were not unlimited, States could impose restrictions on legal aid. Such restrictions could validly be based on the prospects of success in the proceedings (citing Steel and Morris, cited above, § 62).


23.  The Government stated that in domestic law there were two types of court fee. The first type was a fixed amount established by the Ministry of Finance at the end of each year and published in the Official Gazette. The second type was calculated on the basis of the value of the litigation and varied in each case. They further pointed out that court fees were required in order to ensure the proper administration of justice and prevent vexatious applications. In their observations, the Government contended that decisions regarding  <mask> were given by judges on the basis of the relevant case files and that there was no obligation for them to grant legal aid under domestic law. They argued that in the instant case the applicant had failed to submit documents attesting to her poverty. In this respect, they stated that the applicant had been represented by her lawyer during the domestic proceedings and thus could have sought legal assistance as regards the documents that would have supported her legal aid application. The Government therefore concluded that the domestic court’s refusal to grant legal aid had not impaired the essence of the applicant’s right of access to court.


35.  The Government contended that the length of the proceedings may still be regarded as reasonable. They argued that the case was extremely complex in that it necessitated the taking of several expert opinions. They further submitted that the applicant contributed to a considerable extent to the length of the proceedings, namely in that she challenged the competent judge and requested a rectification of five-year-old records relating to her  <mask> case. She had further repeatedly requested the court to stay the proceedings in order to wait for the outcome of friendly settlement negotiations.


136.  The applicants maintained their alternative argument under this limb of Article 6 § 3 (c) that the interests of justice required a grant of free  <mask>, arguing that the guidelines approved in Hone and McCartan (cited above) did not meet the Convention “interests of justice” test. Alternatively, they complained that, where a deprivation of liberty was at stake, the interests of justice in principle required free legal representation both before and during the hearing on all questions of guilt or innocence (see Benham, cited above, p. 757, §§ 61-64).


31.  The applicants maintained that they had been denied access to court as the court fees were set at a level far beyond their means. They further stated that the administrative court's decision rejecting their  <mask> request had been unfair. In this connection, they stated that, although they had submitted the relevant documents which attested to their indigence, the Administrative Court had refused to grant legal aid because they were being represented by a lawyer.


36.  The Government recalled that both the City Court and the High Court had exempted the applicant from paying fees to counsel. As regards costs and expenses related to the proceedings before the Court the Government submitted that the applicant had failed to provide itemised particulars as required by Rule 60 § 2 of the Rules of Court. Finally, they recalled that the applicant had provisionally been granted  <mask> up to an amount of DKK 40,000 pursuant to the above Legal Aid Act, and that the final account of the applicant’ right to legal aid under the Act has yet to be decided.


54.  The applicant complained that his defence rights had been violated at various stages of the criminal proceedings against him. In particular, the applicant claimed that (a) he had been denied access to a lawyer during the first few days of his police custody; (b) his  <mask> counsel had failed to provide effective representation during the trial; and (c) he had not been provided with legal assistance before the court of appeal. He relied on Article 6 §§ 1 and 3 (c) of the Convention, which read as follows:


40.  The Government, however, noted that during the first-instance proceedings the applicant had been represented by a lawyer of his choice (Dr S.). Following the first-instance judgment (31 October 2002), including the date the appeal was lodged, until he was granted  <mask>, the applicant was assisted by Dr M. and Dr S. (who acted behind the scenes). From 28 January 2003, the date when the applicant was granted legal aid and assigned the services of Dr A., until 4 November 2004, the applicant was officially being represented by Dr A., and yet the applicant made no contact with him, but had kept in touch with Dr S. Thus, throughout the proceedings the applicant had had the assistance of a legal adviser, at times of two legal advisers, which constituted an abuse of the legal-aid system.


34.  The applicant complained under Article 6 § 1 of the Convention that she had not been able to present her case effectively on account of the dismissal of her application for  <mask> in the appeal proceedings. She alleged that the courts dismissing her application had failed to take into consideration her particular circumstances. Furthermore, she complained that the refusal of legal aid in cassation appeal proceedings had deprived her of access to the Supreme Court. Article 6 § 1 reads, in its relevant part, as follows:


42.  The Government submitted that the applicant had failed to act diligently. She had received the judgment of the appellate court on 21 November 2001 and it was from that date that the thirty-day time‑limit had started to run. However, she had submitted her request for  <mask> almost three weeks later, on 10 December 2001. Moreover, she had submitted it to the wrong court and her request had had to be forwarded to the Gdańsk Court of Appeal. Her request had been processed very quickly as it had taken the latter court only three days to grant her legal aid. Subsequently, the Gdansk Bar Association assigned the case to a lawyer within five days. The lawyer had examined the applicant's case within sixteen days and had given a reasoned legal opinion on the prospects of success of a cassation appeal.


36.  The Government argued that the applicant could and should have made use of further possibilities namely requesting  <mask> under Article 63 § 1 of the Code of Civil Procedure and/or requesting respite or exemption from the payment of court fees pursuant to section 9 §§ 1 and 2 of the Judicial Collection Act. The Court considers that these issues are closely related to the substance of the case and should therefore be examined together with the merits.


54.  The Government emphasised that only costs and expenses relating to the complaint concerning the length of proceedings could be taken into account. None of the domestic proceedings had been instituted to avoid, or obtain redress for, the complaint concerning the length of the proceedings. Further, the Government left it to the Court's discretion, whether the applicant had submitted sufficient documents to support her claims. Counsel's rate also appeared somewhat excessive. The Government considered that the total amount of compensation for costs and expenses should not exceed EUR 3,500 net of value-added tax. Any  <mask> paid by the Council of Europe should be deducted from that amount.


83.  The Government submitted that the claim for legal fees incurred during the domestic proceedings had not been sufficiently specified as to the time spent on individual measures and that the hourly rate claimed exceeded the Swedish hourly  <mask> fee. As regards the procedure before the Court, the Government submitted that the claim was excessive, considering that the applicant had been represented by the same legal counsel before the Court as in the domestic procedures. In total, the Government submitted that any sum should not exceed SEK 188,000 (approximately EUR 20,000), corresponding to SEK 156,819 for the domestic proceedings and SEK 31,000 for 20 hours of work at the Swedish legal aid rate for the proceedings before the Court.


79.  The Government contested these claims. The Government maintained that no specification relating to the costs and expenses, as required by Rule 60 of the Rules of Court, had been submitted. Moreover, it appeared that the applicant had received  <mask>. In any event, the Government found the applicant's claims for costs and expenses, to the extent the amounts had been specified, too high as to quantum and that the total amount of compensation should not exceed EUR 7,500 (inclusive of value-added tax) in respect of the proceedings before the domestic courts and EUR 2,000 in respect of the proceedings before the Court.


54.  The Government further submitted that in principle the grant of  <mask> did not affect the running of the thirty-day time-limit for lodging a cassation appeal with the Supreme Court. However, the case‑law of the Polish civil courts indicated that retrospective leave to appeal out of time could be granted where legal aid for the purposes of lodging a cassation appeal had been given, but the legal‑aid lawyer could not comply with all the relevant formalities within that time-limit.


89.  The Government argued that it was possible to obtain damages for the excessive length of proceedings by means of an action to establish the State’s liability. Where delays amounted to a breach of a judge’s official duties, there could be an entitlement to compensation for the damage sustained. This was so where the judge wrongfully refused to conduct proceedings or delayed them, particularly in the event of a total lack of activity. On account of the principle of judicial independence, the entitlement generally applied only in cases of flagrant abuse (krasse Missbrauchsfälle). Compensation could be awarded for non-pecuniary damage where, for example, a person’s physical well-being or health had been harmed. It was for the civil courts to rule on the award of compensation, there being no need for a prior finding by the Federal Constitutional Court that the length of the proceedings was unconstitutional. The Government cited a recent decision delivered by the Munich I Regional Court on 12 January 2005 (see paragraph 74 above) in which the claimant had been refunded the legal costs necessarily incurred in lodging a complaint about the excessive length of proceedings before an administrative court of appeal. They further noted that the proceedings brought by the applicant in the Hanover Regional Court in 2002 had not concerned the State’s liability for the excessive length of the proceedings but solely an application for  <mask>.


37.  The applicant submitted that he had been kept in unrecorded detention from 19 to 22 July 2010 and ill-treated, resulting in the injuries recorded in the medical expert’s report of 29 July 2010. According to the Court’s case-law, such injuries created a presumption of ill-treatment unless they were sufficiently explained, which the Government had failed to do. To explain the delay in lodging his complaint about ill-treatment, the applicant submitted that he had considered  <mask> lawyer O. to be “part of the system” so had not trusted him to make the complaint. As soon as he had engaged a new lawyer, he had started complaining about ill-treatment and had taken measures to document his injuries by means of a forensic medical examination.


112.  The applicant claimed EUR 1,177 for the proceedings before the Chamber, including EUR 850 for written pleadings, EUR 250 for translation of documents and EUR 77 for administrative costs, and EUR 2,193 for the proceedings before the Grand Chamber, including EUR 850 for written submissions, EUR 350 in connection with the preparation of the  <mask> request, EUR 300 for preparation of the address to the Grand Chamber, EUR 250 for translation of written pleadings, EUR 300 for the appearance at the oral hearing and EUR 143 for administrative costs.


40.  The Government further submitted that in principle the grant of  <mask> did not affect the running of the thirty-day time‑limit for lodging a cassation appeal with the Supreme Court. However, the case‑law of the Polish civil courts indicated that retrospective leave to appeal out of time could be granted where legal aid for the purposes of lodging a cassation appeal had been given, but the legal‑aid lawyer could not comply with all the relevant formalities within that time-limit.


31.  The applicant stated that he had been denied effective access to a court by reason of the unavailability of  <mask> for the purpose of defending the defamation action brought against him by Mr Christie. He argued that the relevant provisions of the Legal Aid Act 1988 (“the 1988 Act”) were arbitrary in that they barred those involved in defamation proceedings from legal aid whatever the justice and facts of the particular case. He asserted that such a blanket refusal could not constitute a legitimate prioritisation of legal-aid resources by the government.


42.  The Government submitted that there had been no breach of Article 6. In the particular circumstances of the case,  <mask> was not necessary for a fair hearing. There was nothing to indicate that the applicant could not represent herself effectively, as the only fact in dispute was the period that the applicant and her husband had been separated. This was a matter of simple fact, not a complex legal issue.


126.  The Government in the present case provided no specific information or made any specific submissions about the domestic law relating to access to information held by public authorities in such circumstances. For its part, the Court notes that an advocate is entitled under Russian law to seek information and documents from public authorities for the purposes of court proceedings relating to his client (see paragraph 74 above). However, it is noted that the applicant did not retain an advocate to assist him in his court proceedings. Nor does it transpire that he was entitled to any form of  <mask> from the State (see Vladimir Vasilyev v. Russia, no. 28370/05, § 85, 10 January 2012).


15.  The applicant complained that he had been denied a fair hearing by an independent and  <mask> on account of the presence of a military judge sitting on the bench of the İzmir State Security Court which tried and convicted him. He alleged that his statement, taken under duress in police custody, was admitted in evidence and that the İzmir State Security Court relied heavily on the statements of the co-defendants without giving him an adequate opportunity to cross-examine them. Finally, he complained that he had been tried in absentia. The applicant relied on Article 6 §§ 1 and 3 (d) of the Convention, which in so far as relevant reads as follows:


36.  The Government contended that Article 6 does not guarantee the right for a civilian to be tried by a civilian criminal court, but simply the right to trial by an independent and  <mask>. The applicant’s case should be distinguished from Incal v. Turkey, (judgment of 9 June 1998, Reports 1998‑IV), where the applicant had been charged with an offence directly concerning a threat to the security of the country, and was tried by a national security court specifically set up to deal with cases affecting Turkey’s territorial integrity. In the present applicant’s case the charge was an ordinary offence of murder, not an offence specially created to combat a threat to the Government, nor one which affected the military any more than the civilian population. The offence did not contain any special characteristics which might encourage the military members of the court-martial to take into account irrelevant considerations.


41.  The Government further argued that the delays caused by the changes in the composition of the District Court should be attributed to the applicant, because he had successfully petitioned for them. Bearing in mind the prominent place which the right to a fair trial by an independent and  <mask> holds in a democratic society (see, inter alia, De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 16, § 30), the Court considers that the State should bear the responsibility for a delay incurred through a successful challenge of the trial bench by a party to the proceedings. If a court accepts a party's request for a change in the composition of the bench, it inevitably means that the fears of that party as to the impartiality and independence of the tribunal are justified (see Sidorenko v. Russia, no. 4459/03, § 32, 8 March 2007). The Court further reiterates that Article 6 § 1 of the Convention imposes on Contracting States the duty to organise their judicial system in such a way that their courts can meet the obligation to decide the cases within a reasonable time (see, among other authorities, Löffler v. Austria (No. 2), no. 72159/01 § 57, 4 March 2004). Therefore, the responsibility for an aggregated delay of approximately ten months caused by changes in the composition of the Ivolginskiy District Court and the transfer of the case to Sovetskiy District Court rests ultimately with the State (see Marchenko v. Russia, no. 29510/04, § 39, 5 October 2006).


17.  The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing by an independent and  <mask> as the Supreme Military Administrative Court had been composed of military judges. He further argued under Article 14 of the Convention and Article 1 of Protocol No. 12 that the prohibition of his access to the army’s social facilities, while other retired officers could benefit from this right, had amounted to discrimination. Lastly, he contended under Article 2 of Protocol No. 7 that there was no appeal against the decisions of the Supreme Military Administrative Court.


15.  The applicant complained under Article 6 § 1 of the Convention that he had been denied a fair hearing by an independent and  <mask> as the Supreme Military Administrative Court had been composed of military judges and officers. He further maintained under Article 9 of the Convention that the decision of the Turkish General Staff to ban his access to the army's social facilities had infringed his freedom of conscience and religion.


49.  The Government considered that the bench of the Court of Appeal that declared inadmissible the applicant company’s request for a retrial had been an  <mask> within the meaning of Article 6 of the Convention. They underlined that there were no elements to call into question the personal impartiality of the judges composing the bench of the Court of Appeal. As to the objective test, the Government emphasised that it would have been contrary to the interests of a fair and speedy administration of justice if the judges had had to withdraw simply because a request for a retrial, which was not prima facie admissible, had been made.


17.  The applicant complained that she had not received a fair trial by an independent and  <mask> due to the presence of a military judge on the bench of the İzmir State Security Court. In respect of her complaints, she invoked Articles 6 §§ 1, 2 and 3 of the Convention, which in so far as relevant reads as follows:


24.  The applicant complained in the first place that he had not received a fair trial by an independent and  <mask> due to the presence of a military judge on the bench of the Adana State Security Court, which tried and convicted him. He further alleged that he had been denied a fair hearing before the domestic courts. He asserted that he had been convicted solely on the basis of expert reports, which were not supported by any oral or other documentary evidence. In respect of his complaints, the applicant invoked Article 6 §§ 1 and 2 of the Convention, which in so far as relevant reads as follows:


43.  The applicants considered that they had exhausted domestic remedies. They acknowledged that they had not objected to the judge in question despite having been informed of his wife’s position but claimed that they had feared a negative bias if they objected after the judge and his colleagues had not raised and decided on the issue on their own initiative. The applicants pointed out that once they had no longer been dependent on those specific judges, they had filed a petition for extraordinary reopening of the case, inter alia on the ground of Á.K.’s lack of impartiality. They further noted that in the cases of Pfeifer and Plankl v. Austria (no. 10802/84, 25 February 1992, Series A no. 227), and Oberschlick v. Austria (no. 11662/85, 23 May 1991, Series A no. 204), the Court had not considered a failure to object to judges on the ground of their lack of impartiality to constitute a waiver of the right to an  <mask>.


25.  The applicant company argued that when the members of the Court of Appeal refused to withdraw from the case and continued to hear an appeal against their own previous judgment, it suffered a violation of its right to a fair hearing by an  <mask>. It was clear that a bench of judges confirming their own judgment could not be considered objectively impartial.


26.  The applicants complained that they had been denied a fair hearing by an independent and  <mask> on account of the presence of a military judge on the bench of the Istanbul State Security Court which had tried and convicted them. They further submitted that they had been denied the assistance of a lawyer while in police custody. They relied on Article 6 §§ 1 and 3 of the Convention, which, in so far as relevant reads:


31.  The applicant submitted, under Article 6 § 1 of the Convention, that his right to a fair hearing by an independent and  <mask> was breached as he was tried and convicted by the Martial Law Court composed of two military judges, two civilian judges and an army officer. The army officer who has no legal training is accountable to the commander of the state of martial law. The two military judges on the bench are servicemen who belong to the army and take orders from the executive. They are subject to military discipline and assessment reports are compiled on them by the army for that purpose. Article 6 § 1 of the Convention, which provides, as relevant:


32.  The Government further argued that the delays caused by the changes in the composition of the Town Court should be attributed to the applicant because he had successfully petitioned for them. Bearing in mind the prominent place which the right to a fair trial by an independent and  <mask> holds in a democratic society (see, inter alia, De Cubber v. Belgium, judgment of 26 October 1984, Series A no. 86, p. 16, § 30), the Court considers that the State should bear the responsibility for a delay incurred through a successful challenge of the trial bench by a party to the proceedings. If a court accepts a party's motion for a change in the composition of the bench, it inevitably means that the fears of that party as to the impartiality and independence of the tribunal were justified. The Court further reiterates that Article 6 § 1 of the Convention imposes on Contracting States the duty to organise their judicial system in such a way that their courts can meet the obligation to decide the cases within a reasonable time (see, among other authorities, Löffler v. Austria, no. 30546/96, § 57, 3 October 2000). Therefore, the responsibility for an aggregated delay of approximately twelve months caused by the changes in the composition of the Town Court rests ultimately with the State (cf. Marchenko v. Russia, no. 29510/04, § 39, 5 October 2006).


40.  The applicant complained that he had been denied a fair hearing by an independent and  <mask> on account of the presence of a military judge sitting on the bench of the State Security Court which tried and convicted him. He further submitted that he was convicted despite the fact that there was no evidence to support the charges against him. The applicant relied on Article 6 of the Convention.


59.  The Government stressed that the instant case was distinguishable from the case of Brumărescu v. Romania [GC], no. 28342/95, ECHR 1999‑VII), as the protest was lodged by the President of the Regional Court and not by the prosecutor and concerned an interim procedural decision, not the final judgment in the case. The supervisory review procedure was expressly regulated by the Code of Civil Procedure. It contained guarantees to ensure a fair hearing and was aimed at correcting judicial errors. The supervisory review did not contradict the principles of the rule of law and legal certainty. The procedure represented an effective legal mechanism created to correct erroneous judicial decisions. The Government considered that the applicant's case was examined by an independent and  <mask> in adversarial proceedings.


18.  The applicant complained under Articles 6 § 1 and 13 of the Convention that he had been denied a fair hearing by an independent and  <mask> as the Supreme Military Administrative Court had been composed of military judges and that it had acted as a first and only instance court, which had also infringed his right to an effective remedy. He further maintained under Article 6 § 1 that he had been denied a public hearing due to the lack of reference to the principal public prosecutor’s name in the court decisions. The applicant contended that his expulsion from the military academy had amounted to a punishment without a law, in violation of Article 7 of the Convention. Lastly, he maintained under Article 14 of the Convention that he had been expelled from the military academy by reason of his father’s affiliations with a certain trade union, which amounted to discrimination.


111.  The applicants further maintained that the Government's suggestion that Article 5 § 4 provided sufficient protection was incorrect for the reasons set out in the Chamber's judgment, was inconsistent with the Government's own position that the original sentence by the court was the sole basis for detention during the period of additional days and amounted to an acceptance that separate issues of legality arose on the award of additional days which were not covered by the original sentence. In any event, whether Article 6 or Article 5 § 4 applied to adjudication hearings, both required an independent and  <mask> and the Government had accepted that the governor could not constitute such a body. Applying for leave to take judicial review proceedings would not cure this deficiency since it would be a review on narrow legal grounds and not an appeal on the merits (see Weeks v. the United Kingdom, judgment of 2 March 1987, Series A no. 114, pp. 32-33, § 69).


19.  The applicant complained that he had been denied a fair hearing by an independent and  <mask> in violation of Article 6 § 1 of the Convention as the Supreme Military Administrative Court had been composed of military judges and officers and it had acted as a first and only instance. He further maintained under this provision that it had not been possible to know in advance which chamber of this court would examine the case. Lastly, he alleged violations of Articles 8, 13, 17 and 18 of the Convention on the basis of the above-mentioned facts, without further substantiation.


15.  The applicant complained in the first place that he had not received a fair trial by an independent and  <mask> due to the presence of a military judge on the bench of the Ankara State Security Court. The applicant further maintained that the principle of equality of arms had been violated since he had not been notified of the public prosecutor’s observations at the appeal stage. In this connection, he invoked Article 6 of the Convention, which in so far as relevant reads as follows:


18.  The applicant submitted that he had been denied a fair hearing by an independent and  <mask> on account of the presence of a military judge on the bench of the Erzurum State Security Court which tried and convicted him. The applicant relied on Article 6 § 1 of the Convention, which in so far as relevant reads as follows:


17.  The applicant complains under Article 6 § 1 of the Convention that he was denied a fair hearing by an independent and  <mask> on account of the presence of the military judge on the bench of the Ankara State Security Court which tried and convicted him. He further complains under Article 6 § 3 (b) that the written observation of the chief public prosecutor at the Court of Cassation on the merits of his appeal was not served on him.


63.  The applicants complained that they had been convicted on the basis of statements given under torture and ill-treatment and without the assistance of a lawyer while being held in police custody. They further complained that they had been denied a fair hearing by an independent and  <mask> on account of the presence of a military judge on the bench of the Istanbul State Security Court, and that the written opinion of the principal public prosecutor at the Court of Cassation had not been notified to them. They relied on Article 6 §§ 1 and 3 of the Convention, which, in so far as relevant, reads:


39.  The applicants complained that they had been denied a fair hearing by an independent and  <mask> on account of the presence of a military judge sitting on the bench of the Diyarbakır State Security Court which tried them. They further complained that the length of the criminal proceedings brought against them was excessive and that there was no effective remedy in domestic law whereby they could challenge it. The applicants relied on Articles 6 § 1 and 13 of the Convention, which reads:


46.  The applicants complained that, as a result of the NIPO’s protraction of the administrative proceedings relating to their patent application, they had been denied the right to the determination of their civil rights by an  <mask> within a reasonable time, in breach of Article 6 § 1 of the Convention. The case-officer handling their application to the NIPO had displayed bias and hence a lack of impartiality. The applicants further complained that pending a final decision by the Board of Appeals it would have served no purpose for them to exercise a remedy in respect of the above. In a situation of administrative delay such as that in the present instance, the rule whereby patent rights were protected for twenty years from the date of the filing of the patent application had the effect of undermining the possibility of having such rights established through the use of legal remedies.


30.  The applicant complained that neither the Istanbul State Security Court, nor the Istanbul Assize Court had met the requirements of independence and impartiality laid down in Article 6 § 1 of the Convention. He further argued that he had been denied an effective remedy under Article 13 of the Convention as he had not been tried by an independent and  <mask> and the Ninth Criminal Chamber of the Court of Cassation which had examined his appeal had been politicised. He maintained under Article 6 § 1 of the Convention that his statements had been extracted under duress in police custody, including by way of physical ill-treatment, and that the judgment of the Istanbul Assize Court had been erroneous, had lacked reasoning and had been based on insufficient evidence. Lastly, the applicant maintained that his imprisonment following an unfair hearing had amounted to “torture” within the meaning of Article 3 of the Convention.


17.  The applicant company further complained that it had been denied a fair trial before an independent and  <mask>. In this connection, it alleged that the domestic courts had misinterpreted the domestic law. According to the applicant company, the domestic courts had not taken the evidence into consideration and had taken the State’s side. Moreover, the authorities had an unlimited margin of appreciation and the administrative courts did not provide an effective domestic remedy. Finally, the applicant company alleged that its right to work had been restricted as a result of the unlawful application of the International Highway Transportation Regulations. In respect of these complaints the applicant company relied on Articles 6, 7, 13, 17 and 18 of the Convention, the relevant parts of which read as follows:


14.  The applicant submitted that he had been denied a fair hearing by an independent and  <mask> on account of the presence of a military judge on the bench of the Ankara State Security Court which tried and convicted him. The applicant relied on Article 6 § 1 of the Convention, which in so far as relevant reads as follows:


88.  The applicant complained that she had been denied a fair hearing by an independent and  <mask> on account of the presence of a military judge sitting on the bench of the Van State Security Court which tried and convicted her. She further complained under the same head that her right to a public hearing as well as free legal assistance had been infringed. Finally, the applicant claimed that the principle of “equality of arms” had not been respected, since the bill of indictment was not in a language she could understand. The applicant relied on Article 6 of the Convention, the relevant parts of which read as follows: