CASE OF DEL SOL v. FRANCE

1. The case originated in an application (no. 46800/99) against the French Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a French national, Ms Marie-Françoise Del Sol (“the applicant”), on 12 November 1998.
2. The applicant, who had been granted legal aid, was represented by Mr J.-M. Hocquard, a lawyer practising in Paris. The French Government (“the Government”) were represented by their Agent, Mrs M. Dubrocard, Deputy Head of Human Rights, Legal Affairs Department, Ministry of Foreign Affairs.
3. The applicant alleged that the refusal of her application for legal aid to appeal to the Court of Cassation had infringed her right of access to a court, contrary to Article 6 § 1 of the Convention.
4. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.
5. By a decision of 3 April 2001, the Chamber declared the application admissible [ Note by the Registry. The Court's decision is obtainable from the Registry].
6. The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine ), the parties replied in writing to each other's observations.
7. On 1 November 2001 the Court changed the composition of its Sections (Rule 25 § 1), but this case remained with the Chamber constituted within the former Third Section.
I. THE CIRCUMSTANCES OF THE CASE
8. By a judgment of 6 October 1995, the Paris tribunal de grande instance made a divorce order terminating the marriage of Mr and Mrs Del Sol, ordered the liquidation and partition of the matrimonial property, set the level of maintenance to be paid to the applicant at 1,300 French francs (FRF) monthly and dismissed a claim for damages by the applicant.
9. On 8 December 1995 the applicant appealed against that judgment, stating, inter alia, that her husband, the petitioner in the proceedings, had failed to satisfy the conditions set out in the Civil Code, as he had no rights in the assets he had offered to leave her. She argued in the alternative that a divorce would cause her exceptional hardship and that her husband's petition should be dismissed in accordance with Article 240 of the Civil Code, which empowered the court to dismiss a divorce petition if the respondent showed that “the divorce would cause the respondent ... or the children exceptional material or psychological hardship ...”. The applicant also sought maintenance in the form of monthly payments of FRF 3,000.
10. On 25 February 1997 the Paris Court of Appeal upheld all the provisions of the impugned judgment, with the exception of the decision relating to maintenance, which was reduced to FRF 1,000 monthly. It held, inter alia, that the applicant's husband satisfied all the conditions on which the admissibility of the divorce petition depended, as he had offered to assign to the applicant his rights in property which the couple jointly owned in Italy. It further held that the applicant had failed to show that the divorce would cause her exceptional hardship, either psychologically or materially.
11. On 20 May 1997 the applicant applied to the Legal Aid Office at the Court of Cassation for legal aid to enable her to appeal to that court against the Court of Appeal's decision. Her application was refused on 2 April 1998 on the ground that no arguable ground of appeal could be made out against the impugned judgment. The Legal Aid Office noted, however, that the applicant satisfied the means test for legal aid.
12. On 22 May 1998 the applicant appealed against that decision. By an order of 11 June 1998 the President of the Court of Cassation upheld it, holding that the Legal Aid Office had “found no arguable ground of appeal after assessing the facts of the case in its unfettered discretion”.
13. The French system of legal aid enabling persons of limited means to assert their right through the courts was established by Law no. 91-647 of 10 July 1991 and its implementing Decree no. 91-1266 of 19 December 1991.
Under Article 33 of the decree: “Applications for legal aid ... shall contain the following information: ... the purpose of the application and a brief summary of the reasons”.
Applications for legal aid are examined by the legal aid office of the court dealing with the case in respect of which the application is made. The Legal Aid Office at the Court of Cassation is composed of a judge of that court, who acts as its president, the senior registrar who acts as vice-president, two members chosen by the Court of Cassation, two civil servants, two court officers one at least of whom must be a lawyer and a member appointed by the general public (section 16 of the Law).
The Legal Aid Office may refuse an application under section 7(3) of the Law, which provides: “In cases before the Court of Cassation, an application for legal aid shall be refused if no arguable ground of appeal can be made out.” An appeal lies against a decision of the Legal Aid Office to the President of the Court of Cassation (section 23 of the Law).
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
14. The applicant complained that the Legal Aid Office of the Court of Cassation and subsequently the President of that court had refused her application for legal aid on the ground that no arguable ground of appeal could be made out. She maintained that their decisions had resulted in her case being prejudged and had infringed her right of access to a court as guaranteed by Article 6 § 1 of the Convention in these terms:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing ... by [a] ... tribunal ...”
15. The Government prefaced their remarks by stating that the fact that legal aid was only granted to applicants if their argument had at least some prospect, albeit slight, of succeeding in the Court of Cassation reflected the legislature's concern to reconcile the demands of the proper administration of justice with the right of effective access to a court. That did not mean that the bodies responsible for deciding legal aid applications conducted a detailed analysis of the merits of the applicant's arguments. On the contrary, their task was confined to eliminating appeals that were based solely on arguments that were incapable of constituting a valid ground of appeal against the impugned decision. Instances of this were to be found, firstly, in cases in which the arguments challenged issues that were within the sole discretion of the tribunals of fact. In that connection, the Government pointed out that appeals to the Court of Cassation were in a special category, as the Court of Cassation decided only issues of law, not fact. Other examples were to be found in cases in which it was immediately apparent from the documents in the file that the argument was seriously flawed or, a fortiori, in which the notice of appeal disclosed no ground of appeal.
16. Thus, the Government submitted that the test used by the members of the Legal Aid Office of the French Court of Cassation was very different from that which had been censured by the Court in Aerts v. Belgium (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V, pp. 1964-65, § 60), in which similar bodies had determined whether the applicant's appeal was “[currently] well-founded”, that is to say whether it was founded. The latter test was therefore stricter than that used in the French system, in which legal aid was only refused for grounds of appeal that were unsustainable. On that subject, the Government said that following the Court's judgment in Aerts, the Belgian legislature had amended the provisions on legal aid, which now provided, in wording similar to that of the French statute, that only “manifestly ill-founded applications shall be refused”.
17. The Government added that the composition of the Legal Aid Office at the Court of Cassation meant that it was immune to any accusation of bias. The Legal Aid Office was composed of judges, lawyers, civil servants and members of the public. That diversity ensured that it had due regard to the demands of the proper administration of justice and the rights of the defence, in particular to free access to a court. The suggestion that the decisions of the Legal Aid Office reflected a policy of unfairly depriving applicants for legal aid of access to the courts was untenable. The right of appeal to the President of the Court of Cassation against decisions of the Legal Aid Office, which was afforded by section 23 of the Law of 10 July 1991, guaranteed an objective scrutiny of the proposed grounds of appeal to the Court of Cassation. It enabled applicants for legal aid to contest the Legal Aid Office's assessment of the validity of their arguments and, if applicable, to demonstrate that it was ill-founded. The Government consequently submitted that the system used by the Legal Aid Office of the Court of Cassation and the President of that court for examining legal aid applications, pursuant to the Law on legal aid, did not in itself contravene the guarantees of Article 6 § 1 of the Convention.
18. As regards the present case, the Government said that the decisions of the Legal Aid Office of the Court of Cassation and the President of that court were based on section 7(3) of Law no. 91-647 of 10 July 1991, which laid down that an applicant had to be refused legal aid if “no arguable ground of appeal [could] be made out”. That criterion was “objective” and was applied without any examination of the merits of the appeal. Its purpose was to avoid legal aid being granted in cases where the appeal was manifestly bound to fail. Thus, in the instant case, the letters sent by the applicant to the Legal Aid Office showed that she had at no stage set out her reasons for appealing to the Court of Cassation or, a fortiori, any ground of appeal on points of law, despite the fact that Article 33 of the decree of 1991 required applicants for legal aid to set out “the purpose of the application and a brief summary of the reasons”. Quite obviously, the authorities responsible for examining the application for legal aid were obliged in the absence of any indication of the ground of appeal on points of law to rule that there were no arguable grounds of appeal. In any event, the applicant's letters to the registry of the Court showed that her complaints against the Court of Appeal concerned its refusal to allow her to rely on the “exceptional hardship” clause contained in Article 240 of the Civil Code. However, it was the settled case-law of the Court of Cassation that the issue of exceptional hardship lay within the sole discretion of the tribunals of fact. Consequently, even if the applicant had relied on a violation of Article 240 of the Civil Code as a ground of appeal to the Court of Cassation, it would have carried no weight before the Court of Cassation and could not be regarded as an arguable ground of appeal. The Government submitted in conclusion that the application was manifestly ill-founded.
19. The applicant contended that the refusal of her application for legal aid was tantamount to a denial of access to the Court of Cassation. She said that, when they submitted their applications, applicants for legal aid, who were of limited means and lay persons, were incapable of formulating their arguments, which in cases before the Court of Cassation had to comply with strict rules that warranted almost systematic recourse to a member of the Conseil d'Etat and Court of Cassation Bar. Accordingly, there was a danger that the Legal Aid Office's examination would result in grounds of appeal being discounted, when review by a lawyer may have rendered them viable.
20. The Court points out at the outset that there is no obligation under the Convention to make legal aid available for all disputes ( contestations ) in civil proceedings, as there is a clear distinction between the wording of Article 6 § 3 (c), which guarantees the right to free legal assistance on certain conditions in criminal proceedings, and of Article 6 § 1, which makes no reference to legal assistance.
21. Admittedly, the right of access to a court guaranteed by Article 6 § 1 is “practical and effective”, not “theoretical or illusory”. A Contracting State which sets up an appeal system is required to ensure that persons within its jurisdiction enjoy before appellate courts the fundamental guarantees in Article 6 (see, among other authorities, Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A no. 316-B, pp. 78-79, § 59). However, it is for the Contracting States to decide how they should comply with the obligations arising under the Convention. The Court must satisfy itself that the method chosen by the domestic authorities in a particular case is compatible with the Convention.
22. In the instant case, the applicant, who did not have the means to retain the services of a lawyer, complained that the refusal to grant her legal aid had deprived her of all access to the Court of Cassation.
23. The Court notes, firstly, that the reason relied on by the Legal Aid Office and the President of the Court of Cassation for refusing the applicant's application for legal aid – namely the lack of an arguable ground of appeal on points of law – is expressly contemplated in Law no. 91-647 of 10 July 1991 and was undoubtedly intended to meet the legitimate concern that public money should only be made available to applicants for legal aid whose appeals to the Court of Cassation have a reasonable prospect of success. As the European Commission of Human Rights has said, it is obvious that a legal aid system can only operate if machinery is in place to enable a selection to be made of those cases qualifying for it (see, among other authorities, its decisions of 10 July 1980 in X v. the United Kingdom, no. 8158/78, Decisions and Reports 21, p. 95, and of 10 January 1991 in Garcia v. France, no. 14119/88, unreported).
24. It is true that in Aerts, the Court found a violation of Article 6 § 1 after noting that by “refusing the application [for legal aid] on the ground that the appeal did not at that time appear to be well-founded, the Legal Aid Board impaired the very essence of Mr Aerts's right to a tribunal” (judgment cited above, pp. 1964-65, § 60).
25. However, the Court considers it important to have due regard to the quality of a legal aid scheme within a State.
26. The scheme set up by the French legislature offers individuals substantial guarantees to protect them from arbitrariness. The Legal Aid Office of the Court of Cassation is presided over by a judge of that court and also includes its senior registrar, two members chosen by the Court of Cassation, two civil servants, two members of the Conseil d'Etat and Court of Cassation Bar and a member appointed by the general public (section 16 of the Law of 10 July 1991 cited above). Moreover, an appeal lies to the President of the Court of Cassation against refusals of legal aid (section 23 of the Law). In addition, the applicant was able to put forward her case both at first instance and on appeal.
27. In the light of the foregoing, the Court holds that the Legal Aid Office's refusal to grant the applicant legal aid to appeal to the Court of Cassation did not infringe the very essence of her right of access to a court.
Consequently, there has been no violation of Article 6 § 1 of the Convention.
Holds by five votes to two that there has been no violation of Article 6 § 1 of the Convention.