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EXCEPTIONAL DECISION FROM EUROPEAN COURT FOR REPRESENTATION WITH A LAWYER

10 June 2019    1154

On May 14 of this year, the European Court of Human Rights adopted an interesting ruling in the case of Katerina Moldavskaya against Ukraine regarding representation in court with a lawyer.
Link to the decision of the court (http://hudoc.echr.coe.int/eng?i=001-193900).
On 25 July 2017 the applicant authorised a lawyer, Mr M., to represent her before the domestic courts and other institutions for the period of three years without indication of any particular proceedings. Following the legal reforms in Ukraine in September 2016, only the members of the Bar Association were entitled to representation in the courts, with some exceptions.

According to the changes, only lawyers can represent applicants in the Supreme Court from January 1, 2017, in the Court of Appeal from January 1, 2018, and in the court of First Instance from January 1, 2019.

On 12 March 2018 the Supreme Court adopted a ruling refusing to entertain the applicant’s appeal on points of law since M. had not submitted proof that he was a licensed advocate. The Supreme Court noted that, under the amendments to the Constitution of Ukraine that had been introduced on 30 September 2016, it was obligatory as of 1 January 2017 for appellants to be represented by a licensed advocate in all proceedings initiated after that date before the Supreme Court sitting as a court of cassation

Later on, Mrs. Moldavska appealed to the European Court with a complaint under Article 6 of the European Convention on Human Rights, on the grounds of an unlawful restriction of her access to a court of cassation.

In response the court held the following:
 
The Court reiterates that the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, which regulation may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Zubac v. Croatia [GC], no. 40160/12, § 78, 5 April 2018).