08 Jul The right of access to court has been violated by excessively formalistic requirements for an appeal to be filed electronically

In the case of Xavier Lucas v. France (application no. 15567/20, 09.06.2022) the European Court of Human Rights held, unanimously, that there had been a violation of Article 6 § 1 (access to a court) of the European Convention on Human Rights.

The case concerned a requirement to issue proceedings in the Court of Appeal electronically using the e-barreau platform. The Court of Appeal had held that the applicant’s paper application to set aside an arbitral award could be entertained on the ground that the online form did not allow users to enter that type of application or the capacity in which the parties were named. However, the Court of Cassation took the opposite view, holding that the application should have been filed electronically.  The Court of Cassation held that the application should have been filed electronically pursuant to Articles 1495 and 930-1 (Code of Civil Procedure) CPC and quashed the judgment of 17 March 2016 without remitting the case for further proceedings. The European Court held that in so doing the Court of Cassation had deprived the applicant of the opportunity to have the legality of the arbitral award reviewed by the judge hearing the set-aside application.

As to whether the restriction was necessary, the Court noted that the electronic filing requirement concerned proceedings in which representation was compulsory. It operated in practice through a digital platform common to the ordinary and commercial courts and to which only lawyers had access. The Court held that it was not unrealistic or unreasonable to require legal professionals, for whom computers had long been a tool of the trade, to use such a platform.

Consistent with the applicant’s submission that it had been impossible in fact to file the application on the e-barreau platform, the Court found that in order to file it electronically on e-barreau the applicant’s lawyer would have had to fill out the form using inaccurate legal terms. It further noted that the Government had not shown that specific information about how to lodge such an
application had been made available to users. Moreover, The Court held that the applicant’s counsel had not been particularly remiss in making the application on paper where the second paragraph of Article 930-1 CPC seemed to allow this by way of exception. Accordingly it did not appear to the Court that the applicant could be held accountable for the  procedural mistake in issue.

The Court held that by giving precedence to the rule that proceedings in the Court of Appeal were to be issued electronically, while disregarding the practical hurdles faced by the applicant in doing so, the Court of Cassation had taken a formalistic approach that was not needed to ensure legal certainty or the proper administration of justice and which therefore had to be regarded as excessive.

The Court concluded that a disproportionate burden had been placed on the applicant, upsetting the proper balance between, on the one hand, the legitimate concern of ensuring adherence to the formalities for the issuance of court proceedings and, on the other, the right of access to a court.

Reference from the official website of European Court of Human Rights