CEDH · CASELAW;COMMUNICATEDCASES;ENG — 2 novembre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     Communicated on 2 November 2015   FOURTH SECTION Application no. 16580/09 Rimanta Irena URBŠIENĖ and Dalius URBSYS against Lithuania lodged on 31 October 2008 STATEMENT OF FACTS The applicants, Ms Rimanta Irena Urbšienė (hereafter “the first applicant”) and Mr Dalius Urbšys (hereafter “the second applicant”), are Lithuanian nationals, who were born in 1963 and 1964 respectively and live in Kaunas. They are wife and husband. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The first applicant owned a company of unlimited liability ( individuali įmonė ). In 2001 another company instituted civil proceedings against the first applicant’s company, requesting the latter to pay rent arrears. In 2002 the domestic courts upheld the claim and ordered the first applicant’s company to pay 206,875 Lithuanian litai (LTL; approximately 59,900 euros (EUR)) to the claimant company. 1.     Legal aid In 2006 the applicants applied to the Kaunas State-Guaranteed Legal Aid Office requesting legal aid in order to apply for re-opening of the abovementioned case concerning the company’s rent arrears. However, their request was refused on the ground that the domestic law explicitly denied State-guaranteed legal aid in cases where the applicants’ claims were directly related to their commercial or independent professional activity (prašymas yra susijęs su reikalavimu, tiesiogiai atsirandančiu dėl pareiškėjo ūkinės komercinės veiklos ar dėl jo savarankiškos profesinės veiklos). On 7 April 2008 the Kaunas Regional Administrative Court dismissed the applicants’ complaint against the decision of the legal aid office. On 22   May 2008 the Supreme Administrative Court upheld the decision of the lower court. The applicants again requested State-guaranteed legal aid for the same case in 2009 and 2013 but their requests were denied on the same grounds. In 2008-2013 the Kaunas State-Guaranteed Legal Aid Office granted the applicants legal aid in several other cases concerning different disputes, on the grounds that the applicants’ financial situation warranted State-guaranteed legal aid. 2.     Notification about a court hearing In 2007, upon the applicants’ request, the Kaunas Regional Court re-opened the proceedings in the abovementioned case concerning the company’s rent arrears. The applicants contested the amount of arrear payments and court fees which the company had been ordered to pay. On 20 December 2007 the Kaunas Regional Court, in an oral hearing in which the applicants were present, partly upheld their claim. The applicants appealed against the other part of that judgment. On 26 June 2009 the applicants were notified by the Court of Appeal that their appeal “would be examined in writing, without the participation of the parties, on 6 October 2009”. The applicants informed the Court of Appeal that “they would not be able to attend the hearing on the scheduled day” and requested the court to postpone it. It appears that they did not receive any response from the court. On 6 October 2009 the Court of Appeal held an oral hearing and examined the applicants’ appeal. Neither the applicants, nor any other parties were present at the hearing. The court noted that all the parties had been properly notified about the date of the hearing and decided to examine the case in their absence. By the judgment of 23 October 2009 the Court of Appeal dismissed the applicants’ appeal and upheld the judgment of the first instance court. The applicants did not submit a cassation appeal to the Supreme Court because such an appeal could only be submitted by a lawyer, but they had not received State-guaranteed legal aid (see the section “Legal aid” above). B.     Relevant domestic law and practice 1.     Legal aid The Law on the State-Guaranteed Legal Aid, adopted on 28 March 2000 and amended several times, stipulates in Article 11 § 7 (4) that secondary legal aid is not provided when the request for legal aid concerns claims arising directly from the applicant’s commercial or independent professional activity. The Supreme Administrative Court in its judgment of 28 July 2011 in the case no. A575-2966/2011 held that the right to receive State-guaranteed legal aid is not absolute and unlimited, but it is provided by the State upon its own initiative and only within the limits of the State’s capacity. The purpose of secondary legal aid is to assist those individuals to whom such assistance is the most necessary. Accordingly, even where an individual would otherwise fulfil the formal conditions for receiving legal aid, the law may provide for certain restrictions. The court held that the provision of the Law on the State-Guaranteed Legal Aid which denies legal aid in disputes concerning commercial activity is in itself a sufficient ground to deny a request for legal aid in such disputes. 2.     Notification about a court hearing Articles 321 § 1 and 322 of the Code of Civil Procedure stipulate that appeals are examined in writing unless the appellate court decides that an oral hearing is necessary. Article 319 § 3 of the Code of Civil Procedure provides that when the appeal is examined in writing, the parties are not invited to participate and the examination proceeds in their absence. In cases when an oral hearing is held in the appellate instance, the parties must be informed about the time and place of the hearing and they are invited to participate, but their absence does not preclude the court from examining the appeal. Other relevant domestic law and practice on this issue are summarised in Švenčionienė v. Lithuania , no. 37259/04, §§ 13-18, 25 November 2008. COMPLAINTS The applicants complain under Article 6 § 1 of the Convention that the refusal of State-guaranteed legal aid restricted their access to court. They also complain under Article 6 § 1 in conjunction with Article 14 of the Convention that the refusal of legal aid solely because of the subject matter of their case discriminated them on the basis of their social status as individuals who engage in commercial activity. Lastly, the applicants complain under Article 6 § 1 of the Convention that they were not properly notified about the oral hearing before the Court of Appeal: they were notified that their case would be examined in writing but an oral hearing was in fact held, in which they were unable to participate despite having requested the court to postpone it. QUESTIONS TO THE PARTIES 1.     Was the refusal of legal aid to the applicants in the proceedings concerning the activity of their company in line with Article 6 § 1 of the Convention (see Staroszczyk v. Poland , no. 59519/00, §§ 127-129, 22   March 2007)?   2.     In that connection, have the applicants suffered discrimination in the enjoyment of their Convention rights, contrary to Article 14 of the Convention read in conjunction with Article 6 § 1?   3. Was the manner in which the applicants were notified about the hearing before the Court of Appeals on 6 October 2009 in line with Article 6 § 1 of the Convention (see, mutatis mutandis , Yakovlev v. Russia , no.   72701/01, §§   19-21, 15 March 2005)?