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65. In the words of the Court’s Golder judgment,

“… Article 6 para. 1 (art. 6-1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article (art. 6-1) embodies the ‘right to a court’, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only” (loc. cit., p. 18, para. 36).

This right to a court “extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ which can be said, at least on arguable grounds, to be recognised under domestic law; [Article 6 para. 1] (art. 6-1) does not in itself guarantee any particular content for (civil) ‘rights and obligations’ in the substantive law of the Contracting States”
(see, inter alia, the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 46-47, para. 81; and the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p.16, para. 36).

Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 para. 1 (art. 6-1) may have a degree of applicability.

Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 para. 1 (art. 6-1) a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 para. 1 (art. 6-1) – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons
(see the Commission’s admissibility decision of 9 October 1984 on application no. 10475/83, Dyer v. the United Kingdom, Decisions and Reports 39, pp. 246-66 at pp. 251-52).

The relevant principles have been stated by the Court as follows:
“(a) The right of access to the courts secured by Article 6 para. 1 (art. 6-1) 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, regulation which may vary in time and in place according to the needs and resources of the community and of individuals’.
(b) In laying down such regulation, the Contracting States enjoy a certain margin of appreciation, but the final decision as to observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired.
(c) Furthermore, a limitation will not be compatible with Article 6 para. 1 (art. 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.”
(Lithgow and Others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 71, para. 194, citing the Ashingdane v. the United Kingdom judgment of 28 May 1985, Series A no. 93, pp. 24-25, para. 57)

These principles reflect the process, inherent in the Court’s task under the Convention, of striking a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see, inter alia, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 26, para. 69).

[Formatted for ease of reading. For material on how the ECHR itself deals with litigants who fail to engage with the process see Rules 43 [here] , and rules 44A-44E [here] of the ECHR rules of Court 14th November 2016.]

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