CASE OF BERTUZZI v. FRANCE
Preliminary objection rejected (non-exhaustion);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
András Baka;Gaukur Jörundsson
9. The applicant, Mr Rémi Bertuzzi, was born in 1951 and lives in Saint-Laurent (département of Vosges). 10. He applied to the Metz tribunal de grande instance for legal aid to bring an action in damages against Mr T., a lawyer, for failing to represent him properly in court proceedings. He was granted full legal aid on 1 June 1995. 11. Three lawyers were assigned in turn by the president of the bar council to represent the applicant under the legal-aid scheme, but they applied for permission to withdraw from the case, owing to personal links with the lawyer the applicant wished to sue. The last of them withdrew from the case in late October or early November 1995. 12. On 23 November 1995 the applicant asked the president of the legal-aid office to assign a fourth lawyer. On 27 November 1995 he made a like request to the president of the bar council. The registry of the legal-aid office forwarded the applicant's letter to a lawyer who had been delegated by the bar council to the legal-aid office. 13. On 12 December 1995 that lawyer wrote to the president of the bar council in Metz to request the appointment of a fourth lawyer. The latter took no immediate action on the request, other than to seek information about the nature of the applicant's case, which he was given. 14. In the absence of a reply, the applicant wrote to the Minister of Justice on 14 June 1996. All he received in reply was a letter which arrived on 21 June 1996 informing him that his request had been transferred to the Director of the Civil Affairs Department. The applicant pointed this out in a letter to the minister dated 23 November 1996. 15. In March 1997 the applicant received a reply from the president of the bar council informing him that the grant of legal aid dated 1 June 1995 had lapsed. Consequently, he was advised to make a fresh application if he wished to pursue his claim against Mr T. The applicant did not reply to that letter. 16. Legal Aid Act (Law no. 91-647 of 10 July 1991): “Natural persons with insufficient means to enable them to assert their rights in the courts shall be eligible for legal aid. Such aid may be full or partial. ...” “The costs which a recipient of legal aid would have had to bear if he or she had not been granted legal aid shall be borne by the State. ...” “Recipients of legal aid shall be entitled to the assistance of a lawyer and of any other member of the legal profession whose services are required in the proceedings. The lawyers and other members of the legal profession shall be chosen by the recipient of legal aid. They may also be chosen by the officer of the court initially chosen or assigned to the case. If the recipient of legal aid fails to make a choice or if an officer of the court who has been chosen refuses to act, the lawyer or other member of the legal profession shall be assigned to the case by the president of the bar council or the president of his or her professional regulatory body, without prejudice to the rules governing official appointments or assignments. An officer of the court who was acting for the recipient of legal aid before such aid was granted must continue to do so. He or she may only be released from acting in exceptional circumstances and under the conditions laid down by the president of the bar council or the president of his or her professional regulatory body.” Decree no. 91-1266 of 19 December 1991 implementing the Legal Aid Act: “Applications for legal aid shall be lodged with or sent by the applicant or his or her representative to the legal-aid office. They shall contain the following information: (1) the last name, first names, occupation, nationality and domicile of the applicant or, if the applicant is a juristic person, its name, form, object and registered office; (2) as applicable: (i) the nature of the claim and a brief summary of the grounds; (ii) a summary of the existing dispute, the identity of the parties and the nature of the proposed settlement before action; ...” “The statement of means referred to in Article 34 shall contain: (1) details of the applicant's family and professional situation; (2) a full detailed list of all means of any kind directly or indirectly available to or at the free disposal of the applicant during the past calendar year and, if applicable, the year in which the application is made, other than the family benefits and social benefits referred to in Article 2, and of the means of his or her spouse and, if applicable, other people habitually living in his or her home and any dependants; (3) the nature and value of his or her movable and immovable assets, including non-income producing assets; (4) details of the outward signs of his or her lifestyle. Unless the applicant is not habitually resident in France, the statement shall be made on a printed form conforming to the models specified in a joint order of the Minister of Justice and the Minister for the Budget. It shall contain a statement of the criminal-law provisions set out in paragraph II of section 22 of Law no. 68-690 of 31 July 1968.” “A grant of legal aid shall lapse if the applicant fails to bring the court proceedings for which it was granted within one year after being notified of the grant.” “If the applicant for legal aid fails to produce a document establishing that a lawyer or other member of the legal profession chosen by him or her has agreed to act, the duly appointed member of the office or section representing the relevant profession may proceed to assign an officer of the court to the case.” “For the purposes of the preceding Article, a lawyer appointed as a member of the office or section must be in possession of an authority issued by the president of his or her bar. ...” “If no lawyer or other member of the legal profession has been chosen by the recipient of legal aid or assigned in accordance with Articles 76 to 78, the secretary of the legal-aid office or section shall, immediately after the decision to grant legal aid has been taken, send a copy to the president of the bar council and, if appropriate, the president of each of the professional regulatory bodies of the various officers of the court qualified to represent the recipient of legal aid, to assist him or her and to perform such acts and take such steps as may be necessary in the substantive proceedings, or in any interlocutory application or enforcement proceedings for which the legal aid was granted. If it appears necessary to instruct a new lawyer or other member of the legal profession after legal aid has been granted, the secretary of the legal-aid office or section shall, on an application by the recipient of legal aid, send a copy of the decision to the president of the bar council and the president of each of the professional regulatory bodies referred to in the preceding sub-paragraph.” “The president of the bar council or of the professional regulatory body or his or her representative shall appoint the lawyer or other member of the legal profession who will act for the recipient of legal aid. He or she shall notify the following of his or her appointment: (1) the lawyer or other member of the legal profession concerned, to whom he or she will forward a copy of the legal-aid office's decision with a reminder of the provisions of Article 54; (2) the secretary of the legal-aid office, who will immediately inform the recipient of legal aid and invite him or her to contact the officer of the court concerned, and the senior clerk or secretary of any court or tribunal before which the litigation is pending; the name of the officer of the court shall then be recorded in the case file; ...” “If the officer of the court who was acting for the recipient of legal aid before legal aid was granted applies for permission to withdraw from the case, the president of the bar council or of the relevant professional regulatory body shall decide that application in a reasoned decision in accordance with the provisions set out in the fourth sub-paragraph of section 25 of the aforementioned Law of 10 July 1991. The decision will be served on the recipient of legal aid, the officer or officers of the court and the secretary of the legal-aid office.” “In any case in which an officer of the court who was acting for the recipient of legal aid is released from his duty to act, a replacement shall be appointed immediately.” Judicature Code (legislative section): “The State shall be under an obligation to compensate for damage caused by any malfunctioning of the system of justice. This liability shall be incurred only in respect of gross negligence or a denial of justice. ...”