CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 1 avril 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 17829/91                       by Erik Albert Lotze BOECK                       against Denmark           The European Commission of Human Rights (Second Chamber) sitting in private on 1 April 1992, the following members being present:                    MM.   S. TRECHSEL, President of the Second Chamber                       C.A. NØRGAARD                       G. JÖRUNDSSON                       A. WEITZEL                       J.-C. SOYER                       H.G. SCHERMERS                       H. DANELIUS                  Mrs. G.H. THUNE                  MM.   F. MARTINEZ                       L. LOUCAIDES                       J.-C. GEUS                       A.V. ALMEIDA RIBEIRO                  Mr.   K. ROGGE, Secretary to the Second Chamber           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 30 November 1990 by Erik Albert Lotze BOECK against Denmark and registered on 21 February 1991 under file No. 17829/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant is a Danish citizen, born in 1942. He is a civil engineer and resides at Frederiksberg, Denmark.         In 1967 the applicant joined the Danish Association of Engineers trade union. In 1983, however, he left the union which he found pursued socialistic goals.         In 1985 the applicant started working in the Patents Directorate (Patentdirektoratet) which falls under the administrative authority of the Ministry of Industry. In August 1988 he was dismissed by the Director of the Patents Directorate with effect from 1 January 1989 allegedly because of lack of the necessary qualifications for the job.         The applicant was convinced, however, that he had been dismissed because he was not a member of the Danish Association of Engineers for which reason he asked the Minister of Industry to investigate the matter. On 22 September 1988 the Minister informed the applicant that he found no reason to criticise the Director's decision to terminate the employment due to lack of the necessary qualifications. The Minister found it established that trade union membership questions had not in any way influenced the decision. Furthermore, the Minister informed the applicant that in so far as he considered his dismissal to be due to his non-membership of a trade union this was a question to be determined by the courts.         The applicant then applied for legal aid in order to institute proceedings against the Patents Directorate but his application was rejected on 6 July 1990 by the Copenhagen County Authority (Københavns Statsamt) since it did not appear that the applicant had any reasonable grounds for suing the Directorate.         The applicant appealed against this decision to the Directorate of Civil Law (Civilretsdirektoratet). In its decision of 27 November 1990 refusing legal aid the Directorate stated:   (translation)         "The Directorate's decision has been taken pursuant to Section       330 of the Administration of Justice Act (retsplejeloven),       according to which it is a requirement for granting legal aid       that the applicant, inter alia, appears to have reasonable       grounds for litigation, which normally means that the applicant       must have prospects of being successful in regard to his claims.         The reason for the decision is first and foremost that you have       not, in the Directorate's opinion, in the circumstances of the       case sufficiently rendered it probable that you could provide       such evidence as would be necessary in order to be successful       with your claim.         The Directorate has also considered your application under       Section 331 of the Administration of Justice Act according to       which the Directorate may grant legal aid when special reasons       so require regardless of whether the conditions set out in       Section 330 are fulfilled. This applies in particular in cases       of principle, in cases of general public interest, or in cases       which are of considerable importance to the applicant's social       situation or employment. According to practice it is, however,       normally also a requirement for granting legal aid pursuant to       Section 331 that the applicant appears to have reasonable grounds       for litigation which, as indicated, normally means that the       applicant must have prospects of being successful in regard to       his claims.         As mentioned above the Directorate does not find that you have       prospects of being successful with your claim, for which reason       there is no basis upon which you could be granted legal aid in       accordance with Article 331 of the Administration of Justice       Act."         The applicant did not pursue his case in the ordinary courts of law.     COMPLAINTS         The applicant complains that he was denied access to court, and thus to a fair hearing, contrary to Article 6 para. 1 of the Convention since he was not granted legal aid. He also maintains that this amounts to a violation of Articles 13 and 17 of the Convention. Finally, in regard to the question of access to court the applicant complains that legal aid was denied him in a discriminatory manner. He refers in this respect to Article 14 of the Convention.         Under Article 11 of the Convention the applicant complains that he was dismissed only due to the fact that he was not a member of the Danish Association of Engineers trade union.     THE LAW   1.     The applicant complains under Article 6 para. 1 (Art. 6-1) of the Convention that he has been denied access to court as a result of the refusal of the Directorate of Civil Law to grant him legal aid.         Article 6 para. 1 (Art. 6-1) of the Convention provides inter       alia:         "In the determination of his civil rights and obligations ...,       everyone is entitled to a fair ... hearing ... by an independent       and impartial tribunal established by law."         According to the case-law of the Commission and the European Court of Human Rights Article 6 para. 1 (Art. 6-1) guarantees to litigants an effective right of access to the courts for the determination of their "civil rights and obligations". However, a free choice of the means to be used towards this end is left to the States. Furthermore, there is no obligation on the States to provide free legal aid for every dispute relating to a "civil right" (cf. Eur. Court H.R., Airey judgment of 9 October 1979, Series A no. 32, para. 26, p. 15).         The Commission finds that where a State chooses a legal aid system to provide for access to court, such a system can only operate effectively, given the limited resources available, by establishing a machinery to select which cases should be legally aided. Such limitations on the availability of free legal aid, common to most Convention States, often require a financial contribution or that the proposed litigation have reasonable prospects of success. In the Commission's view, Article 6 para. 1 (Art. 6-1) does not require that legal aid be provided in every case, irrespective of the nature of the claim and the supporting evidence. Where an individual is refused legal aid in a particular case because his proposed civil claim is either not sufficiently well grounded or is regarded as frivolous or vexatious the burden would then fall on him to secure his "access to court" in some other way such as, for example, bringing the action himself or seeking assistance from some other source. Accordingly, the Commission is of the opinion that where a person has been refused legal aid on the basis that his claim lacks reasonable prospect of success such a situation would not normally constitute denial of access to court unless it could be shown that the decision of the administrative authority was arbitrary (cf. No. 8158/78, Dec. 10.7.80, D.R. 21 p. 95).         In the present case the Commission recalls that the questions concerning the granting of legal aid in Denmark are regulated by law, i.e. Sections 330 and 331 of the Administration of Justice Act. The Directorate of Civil Law found that the necessary requirements were not fulfilled in that the applicant's civil claim was not sufficiently well founded. In this respect the administrative authority necessarily had a certain discretionary power, and the applicant has not submitted any evidence which could lead the Commission to conclude that the decision taken was arbitrary or, having regard to the applicant's reference to Article 14 (Art. 14) of the Convention, based on discriminatory considerations. Furthermore, the applicant does not dispute that he could bring an action himself, albeit at his own expense, should the action eventually fail. The applicant's allegation that he would not receive a fair hearing in such circumstances has not been substantiated. Accordingly, the Commission finds that he was not denied access to court.         It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     Having regard to the above conclusion the Commission finds that no separate issue arises as regards the applicant's reference to Articles 13 and 17 (Art. 13, 17) of the Convention.   3.     The applicant finally complains that he was dismissed due to the fact that he was not a member of a trade union and invokes in this respect Article 11 (Art. 11) of the Convention.         However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of this provision as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.         In the present case the applicant did not institute proceedings in the ordinary courts of law in order to have determined whether his dismissal was due to non-membership of a trade union and he has not shown that he was unable to do so. In this respect the Commission recalls that a dismissal based on non-membership of a trade union would be illegal under Danish law, a view the Danish courts have constantly upheld (cf. No. 12719/87, Dec. 3.5.88, D.R. 56 p. 237).         Accordingly, the applicant has not exhausted the remedies available to him under Danish law and, in the light of the finding above, an examination of the case does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.         It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must accordingly be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.           For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Second Chamber        President of the Second Chamber               (K. ROGGE)                            (S. TRECHSEL)