CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 juillet 2018

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GEORGIA   (Application no. 10978/06)                 JUDGMENT   This version was rectified on 28 August 2018 under Rule 81 of the Rules of Court   STRASBOURG   26 July 2018   FINAL   26/10/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Bartaia v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Angelika Nußberger, President,   André Potocki,   Yonko Grozev,   Mārtiņš Mits,   Gabriele Kucsko-Stadlmayer,   Lәtif Hüseynov,   Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 3 July 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 10978/06) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Alexander Bartaia (“the applicant”), on 16 February 2006. 2.     The applicant was represented by Ms M. Bartaia, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agents, most recently Mr B. Dzamashvili of the Ministry of Justice. 3.     The applicant complained, under Article 6 § 1 of the Convention, that a default judgment had been wrongly issued against him in violation of the principle of equality of arms, and that he was subsequently deprived of an opportunity to obtain a fresh examination of his case with his participation. 4.     On 10 January 2008 the application was communicated to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1938 and lives in Tbilisi. A.     Proceedings before the Didube-Chugureti District Court 6.     On 10 September 2003 the applicant was dismissed from a printing company. He brought proceedings against his employer. 7 .     At the preparatory hearing of 26 December 2003 the Didube ‑ Chugureti District Court in Tbilisi (“the District Court”) scheduled the main hearing for 3.30 p.m. on 28 January 2004. The preparatory hearing was attended both by the applicant and his lawyer. On 22 January 2004 the applicant’s lawyer wrote to the court informing that he was due to attend a hearing for an appeal on points of law before the Supreme Court of Georgia at 3 p.m. on 28 January 2004 and therefore could not be present. He requested that the hearing be adjourned. No reply followed. 8 .     The District Court held the hearing on 28 January 2004 as planned. The applicant appeared and submitted that, as he was not a lawyer, he would be unable to argue his case in the absence of his representative. He requested that the hearing be adjourned so that he could be represented by his lawyer. Counsel for the opposing party objected to the request and asked the first-instance court to issue a default judgment against the applicant. The record of the hearing shows that the judge warned the applicant that, if he refused to take any further part, “the court would give a decision in absentia ”. The applicant, however, repeated that he would be unable to present his case without his lawyer. 9 .     According to the record of the hearing, the District Court did not consider the applicant’s request for an adjournment. It ruled that his refusal to participate in the hearing equated to a failure to appear in court within the meaning of Article 232 of the Code of Civil Procedure (“the CCP”, see paragraph 20 below). In view of the above, and concluding that the applicant had been duly summoned to the hearing in accordance with Articles 70 to 73 of the CCP, the judge issued, in accordance with Article   229 § 1 of the CCP (see paragraph 20 below), a default judgment rejecting the applicant’s action without examining it or giving any reasons. 10.     The decision stated in its operative part that an application to set aside the judgment could be made to the same court within ten days. B.     Annulment proceedings 11.     The applicant’s lawyer filed an application to set aside the judgment, enclosing a letter from the Supreme Court dated 5 February 2004 confirming that he had participated in the hearing of an appeal on points of law at 3 p.m. on 28 January 2004. He argued that his involvement in the examination of another case was a “valid reason” for his absence (see Articles 233 and 241 of the CCP as cited in paragraph 20 below). 12.     On 19 March 2004 the same District Court judge confirmed his own decision of 28 January 2004. He found that the applicant had been summoned to the hearing in accordance with the rules set out in Articles 70 to 78 of the CCP, and pointed out that there was no legal requirement to also summon a party’s lawyer. When he had appeared before the court, the applicant had stated that he objected to the examination of the case without his lawyer present and had refused to take part in the hearing. As conduct of that sort equated to a failure to appear under Article 232 of the CCP and none of the circumstances provided for by Article 233 of the CCP had been established, the judge decided that Article 241 of the CCP should not be applied to set aside the default judgment. 13.     The applicant appealed against the decision of 19 March 2004. On 16   July 2004 the Tbilisi Regional Court (“the Regional Court”) found that, in breach of Article 72(z) of the CCP, the applicant and his lawyer had not been properly warned of the consequences of not appearing before the court. Moreover, at the hearing on 28 January 2004 the District Court had not properly explained to the applicant what a default judgment would mean for him. The Regional Court considered that, as the applicant was not a lawyer, he could not have known that a decision in absentia would necessarily be to his detriment. Therefore, as the caution provided for in Articles 70 to 78 had not been issued in the present case, the Regional Court held that there were grounds, under Articles 233 and 241 of the CCP, for setting aside the decision of 19 March 2004. The applicant’s appeal was thus remitted to the District Court for re-examination. 14.     The applicant’s former employer lodged an appeal on points of law against the appeal judgment. 15 .     On 2 March 2005 the Supreme Court of Georgia found that, contrary to the Regional Court’s assertion, the applicant had been informed in the hearing notice of the consequences of a failure to appear. There had therefore been no violation of Article 72(z) of the CCP. The Supreme Court also found that, according to the record of the hearing of 28 January 2004, the judge had warned the applicant that “in the event of a refusal to take part in the hearing, a decision [would] be given in absentia ”. The applicant had therefore been sufficiently informed of the consequences of his conduct. Lastly, the Supreme Court pointed out that a court could give a decision in absentia if a lawyer or a party failed to appear at a hearing, on condition that the party had been summoned in accordance with the rules set out in Articles 70 to 78 of the CCP. Consequently, the Supreme Court set aside the Regional Court’s judgment of 16 July 2004 and remitted the case. 16 .     On 10 May 2005 the Regional Court followed the Supreme Court’s reasoning and added that the applicant’s lawyer’s involvement in another hearing was not a “valid reason” for setting aside the decision in absentia , given that Article 232 of the CCP did not specify on what grounds a party could refuse to take part in a hearing. According to the Regional Court, this meant that any refusal to take part in the hearing was unjustified. It therefore upheld the decision of 19 March 2004. 17 .     An appeal on points of law by the applicant was dismissed on 16   September 2005. The Supreme Court ruled that Article 241 contained an exhaustive list of the grounds on which a default judgment could be set aside. It further concluded, in contrast with the finding of the Regional Court on 16 July 2004, that the applicant had been duly informed of the consequences of his failure to appear at the hearing. Thus, this argument could not have served as a valid basis for a re-examination of the case in accordance with Article 241 of the CCP. 18.     Nor did the applicant’s refusal to participate in a trial for whatever reason, according to the Supreme Court, merit a re-examination of the case. It emphasised in this connection that the refusal to participate equated to a failure to appear in terms of its legal consequences. 19.     No appeal lay against the above decision of the Supreme Court. II.     RELEVANT DOMESTIC LAW 20 .     The relevant Articles of the CCP, as in force at the material time, read as follows: Article 72 (z) “A summons to a hearing shall include: ... (z) a reminder of the consequences of a failure to appear and of the obligation to inform the court of the reasons for such a failure.” Article 93 “1. An individual may present his or her case before the court in person ... 2.     Parties may also present their case through a representative. This does not, however, prevent them from taking part in the examination of the case.” Article 216 § 1 “The adjournment of a court hearing is only possible in the cases provided for by law.” Article 229 § 1 “Where a claimant has been summoned in accordance with the rules set out in Articles 70 to 78 of the CCP but fails to appear at the main hearing, the court may, at the request of the respondent party, give a decision in absentia dismissing the claimant’s action.” Article 232 “A party shall be deemed to have failed to appear if he or she appears at the hearing but refuses to participate therein.” Article 233 § 1 “A court shall not issue a default judgment if: (a) the absent party has not been summoned in accordance with the rules set out in Articles 70 to 78 of the present Code; (b) the court has been informed of force majeure or other circumstances which could have prevented the party from appearing in court in time; ...” Article 234 “The content of a default judgment must satisfy the conditions laid down in Article   249 of the CCP, excluding the reasoning part.” Article 236 “A party who has failed to appear at a court hearing, which has led to a default judgment being issued against him or her, can lodge an action with the same court, requesting that the decision be reconsidered and the case re-examined.” Article 241 “A default judgment shall be set aside and the case re-examined if any of the grounds listed in Article 233 are present, or if a party was absent for a valid reason of which he or she could not inform the court at the relevant time.” Article 366 “A default judgment is not amenable to appeal [to a higher court] by the party against whom it was issued ...” Article 249 “A court decision shall contain an introduction, a statement of the facts, the court’s reasoning and an operative part.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 21.     The applicant complained that the default judgment of 28 January 2004 had been wrongly issued against him in violation of the principle of equality of arms, and that he was subsequently deprived of an opportunity to obtain a fresh examination of his case with his participation. He relied on Article 6 § 1 of the Convention, which in its relevant part reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A.     Admissibility 22.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions 23.     The applicant maintained that he had not acted in violation of any of the domestic procedural rules. 24.     The Government on their part submitted that the responsibility of the State was not engaged if a claimant had acted in breach of the law of the State. They claimed that the domestic courts had been prevented from examining the applicant’s case as a result of his own actions. Notably, by refusing to participate in the hearing of 28 January 2004 for an unjustifiable reason, the applicant had failed to comply with the relevant procedural requirements. In this connection the Government’s argument, like the reasoning of the domestic courts, was twofold: firstly, for the purposes of Article 232 of the CCP the refusal of a party, physically present in court, to participate in a hearing for whatever reason was equal to the party’s failure to appear in court; and secondly, the applicant and his representative had failed to provide a good reason for their request for an adjournment given that the representative’s inability to appear in court was not a valid one under domestic law. 25.     The Government further stressed that the applicant had been properly warned of the legal consequences of his refusal to participate in the hearing. Moreover, despite knowing in advance that his lawyer would be absent from the hearing scheduled for 28 January 2004, he had not made any efforts in advance to appoint another lawyer. He had therefore simply attempted to cause an unreasonable delay in the proceedings. Lastly, the applicant had been fully authorised to present his case in the absence of a lawyer. 2.     The Court’s assessment (a)     General principles 26.     The Court observes that the general principles regarding the right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, have been repeatedly stated in its previous judgments (see, among many other authorities, Steel and Morris v. the United Kingdom , no. 68416/01, §§   59 ‑ 60, ECHR 2005-II). Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights (see ibid .). Thus, the questions of personal presence, the form of the proceedings – oral or written – and legal representation are interlinked and must be analysed in the broader context of the “fair trial” guarantee of Article 6. The Court should establish whether the applicant, a party to the civil proceedings, was given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent (see Ternovskis v. Latvia , no. 33637/02, § 65, 29   April 2014, and Larin v. Russia , no. 15034/02, §§ 35-36, 20 May 2010). 27.     The Court notes that the right to a fair trial comprises, inter alia , the right of the parties to the proceedings to present the observations which they regard as pertinent to their case. As the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, this right can be regarded as effective only if the applicant is in fact “heard”, that is, his or her observations are properly examined by the courts (see Ternovskis, cited above, § 66). In this connection, The Court notes that Article 6 requires and allows the States to organise their legal systems in a manner which facilitates expeditious and efficient judicial proceedings, including provision for the possibility of issuing default judgments. However, that cannot be done at the expense of other procedural guarantees (see Aždajić v. Slovenia , no. 71872/12, §49, 8 October 2015, and Gankin and Others v. Russia , nos. 2430/06, 1454/08, 11670/10 and   12938/12, § 26, 31 May 2016). In fact, Article 6 § 1 is intended above all to secure the interests of the parties and those of the proper administration of justice (see Nideröst-Huber v. Switzerland , 18 February 1997, § 30, Reports of Judgments and Decisions 1997 ‑ I). Consequently, it falls within the responsibility of the domestic authorities to ensure that the standards set by Article 6 § 1, and, in particular, the protection of the equality of arms, are respected. 28.     The Court further notes that the requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to cases of the former category. Thus, although these provisions have a certain relevance outside the strict confines of criminal law, the Contracting States have greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases (see, for example, Dombo Beheer B.V. v. the Netherlands , 27 October 1993, §§   32 ‑ 33, Series A no. 274; Jokela v. Finland , no. 28856/95, § 68, ECHR   2002 ‑ IV; and Milovanova v. Ukraine (dec.), no. 16411/03, 2 October 2007). Nevertheless, certain principles concerning the notion of a “fair hearing” in cases concerning civil rights and obligations emerge from the Court’s case ‑ law. It is clear that the requirement of “equality of arms”, in the sense of a “fair balance” between the parties, applies in principle to such cases as well as to criminal cases (see Dombo Beheer B.V. , cited above, §§   32-33). Moreover, the Court considers it necessary, when examining proceedings that fall within the civil-law aspect of Article 6, to draw inspiration from its approach to criminal-law matters (see Dilipak and   Karakaya v. Turkey , nos.   7942/05 and 24838/05, § 80, 4 March 2014; see also Carmel Saliba v.   Malta , no. 24221/13, §§ 67, 70, and 73, 29   November 2016). 29.     In its recent case-law the Court applied criminal law standard concerning in absentia proceedings to complaints concerning civil proceedings. It held that in civil default proceedings it would verify: (i)   whether the authorities had been diligent in informing the applicants of the proceedings, and whether the applicants could be considered to have waived their right to appear before the courts and to defend themselves; and (ii)   whether domestic law provided the applicants with the appropriate means to secure a fresh adversarial hearing, once they had learnt of the default judgments against them (see Dilipak and Karakaya , cited above, §§   78, 80 and 88, 4 March 2014; Aždajić, cited above, §§ 50 and 53; Gyuleva v. Bulgaria , no. 38840/08, § 38, 9 June 2016; and Gakharia v.   Georgia , no. 30459/13, § 38, 17 January 2017). (b)     Application of those principles in the current case 30.     The applicant does not dispute the fact that he was duly informed of the hearing scheduled for 28 January 2004 and he indeed appeared at that hearing. Therefore, what is at stake in the current case is whether the applicant was given the possibility to effectively participate in the proceedings and to enjoy equality of arms with the opposing party. 31.     The Court notes that the applicant’s lawyer lodged a request for an adjournment six days before the scheduled hearing. In the absence of a reply, the applicant appeared before the District Court and having reiterated his request for an adjournment, refused to participate in the hearing without his lawyer. According to the court record, the first-instance judge disregarded the request for an adjournment as such, and concluded that the applicant’s refusal to participate in the hearing amounted to his absence and issued a default judgment (see paragraph 9 above). At this point the Court considers necessary to make the following observation. 32.     There is no automatic right under the Convention to legal representation in civil proceedings, and in the circumstances of the present case the legal representation was not mandatory. Nevertheless, when a party seeks, as in the case at hand, an adjournment on the basis of his or her lawyer’s absence, arguing that this constitutes a handicap for the defence, the domestic court is expected to examine the request and answer it. A question as to whether the assistance of a lawyer is necessary for a fair trial must be determined on the basis of the specific facts of each case, such as, the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure, and the applicant’s capacity to represent him or herself effectively (see, mutatis mutandis, Steel and   Morris , cited above, § 61, and N.J.D.B. v. the United Kingdom , no.   76760/12, § 73, 27 October 2015). In this context, it must be ascertained whether the applicant’s appearance before the courts without the assistance of a lawyer would be effective, in the sense of whether he or she would be able to present his or her case properly and satisfactorily (see, mutatis mutandis, Airey v. Ireland , 9 October 1979, § 24, Series A no. 32). Regard must also be had to the overall context and, in particular, the extent to which the applicant has already enjoyed access to court and equality of arms in the proceedings (see N.J.D.B., cited above, § 74). 33.     In the current case the District Court did not examine whether there was evidence that the applicant or his lawyer, who had invoked a serious and verifiable reason for an adjournment, had acted in bad faith or had tried to unnecessarily delay the proceedings. It was their first request for an adjournment which had been duly lodged with the court both by the applicant and his lawyer (see paragraphs 7 ‑ 8 above, and contrast with Milovanova, cited above). Article 93 of the CCP explicitly recognised the applicant’s right to present his case through a lawyer (see paragraph 20 above). At the same time, the subject of the proceedings was delicate as it concerned a former employer-employee relationship and the opposing party was duly represented by a lawyer. In disregard of all the above factors, without assessing the applicant’s specific circumstances on the one hand, and interests of good and speedy administration of justice on the other (see in this connection Airey, cited above, § 24), the court first ignored the lawyer’s written request, and then without giving any reasons, in essence rejected the same request lodged by the applicant at the hearing. 34.     Subsequently, in the context of the annulment proceedings, on 19   March 2005 the very same judge concluded with reference to Article 233 of the CCP that a lawyer’s absence from a hearing was not an “obstacle” to holding a hearing. In this context the Court finds it difficult to subscribe to the Government’s argument that the participation of a lawyer in another hearing before the Supreme Court was not a good reason for an adjournment and that the applicant’s request had merely been an attempt to cause a delay in the proceedings. Such an overly formalistic and inflexible approach was at odds with the due diligence principle that the domestic courts must apply so as to secure the genuine and effective enjoyment of the rights guaranteed under Article 6 of the Convention. 35.     The Court further notes that in the current case the applicant’s purported refusal to participate in the hearing in the absence of his lawyer was in effect equated by the District Court to a waiver of his right to have his case examined on the merits with his participation. It appears, however, from the case file, that while informing the applicant of the risk of a default judgment, the first-instance judge did not explain to him that firstly, a default judgment implied an automatic rejection of his action without giving any reasons (see Article 229 § 1 cited in paragraph 20 above), and secondly, that no standard appeal procedure applied to a default judgment (see Articles 236, 241, and 366, cited in paragraph 20 above). The appellate and cassation courts in the course of the proceedings to set aside the default judgment concluded that the applicant had been warned of the possible consequences of his actions (see paragraphs 15-17 above). The Court, however, considers that the applicant, while at the hearing in the absence of his lawyer, was not informed in an adequate and understandable manner of the consequences of his actions. In such circumstances it remains to be seen whether or not domestic law provided the applicant with appropriate means of securing a fresh adversarial hearing with his participation. 36.     The Court notes in that regard that no appeal to a higher court as such lay against the default decision (see Article 366 of the CCP in paragraph 20 above). Articles 236 and 241 of the CCP provided for the procedure for setting aside default decisions (see paragraph 20 above). However, even though those provisions could, in principle, have offered adequate redress to a person against whom a default decision had been issued, they could not do so for the applicant himself. Notably, the appellate and cassation courts in their respective decisions of 10 May and 16   September 2005 concluded that the participation of a lawyer in another hearing was not a valid reason for setting aside a decision in absentia and that under Article 232 of the CCP any refusal, for whatever reason, to take part in a hearing was unjustified. Thus, it could not fall within the exhaustive list of valid reasons for re ‑ examination listed in Article 233. In these circumstances, the Court concludes that the applicant, given the domestic courts’ application of the rules on re-examination of in absentia judgments, had no possibility to obtain a re-opening of his case. 37.     The Court is mindful of the fact that the applicant was duly represented by a lawyer of his own choosing from the very beginning and throughout the relevant proceedings. This lawyer was responsible for, inter alia, keeping the applicant informed about the relevant legal procedures and nuances of his case. In the Court’s view, since the lack of a reply to the adjournment request of 22 January 2004 could have implied a tacit dismissal of that request by the District Court, the lawyer had to act diligently and advice the applicant on all possible legal strategies, including the legal steps he should have undertaken in the former’s absence during the scheduled hearing (see, mutatis mutandis, Hermi v. Italy [GC], no.   18114/02, § 79, ECHR 2006-XII). However, the adverse consequences which the Georgian judicial authorities attributed to the applicant’s conduct and that of his representative, were, in the Court’s view, disproportionate. 38.     In the light of the foregoing considerations, the Court concludes that the applicant’s right to participate effectively in the proceedings and the right to equality of arms were restricted to an extent incompatible with the principles of a fair hearing established by Article 6 of the Convention. There has accordingly been a violation of Article 6 § 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION [1] A.     Damage 39.     The applicant claimed 20,000 euros (EUR) in respect of pecuniary and EUR 5,000 in respect of non-pecuniary damage. 40.     The Government argued that the claim for non-pecuniary damage was highly excessive. As for his claim in respect of pecuniary damage, they submitted that it was unsupported by any evidence. It was also highly disproportionate, given that the applicant’s monthly salary at the relevant time was about EUR 25. 41.     The Court cannot speculate about the outcome of the proceedings had they been in conformity with Article 6; it therefore rejects this claim. However, it awards the applicant EUR 1,500 in respect of non ‑ pecuniary damage. B.     Costs and expenses 42.     The applicant also claimed EUR 5,500 for legal costs and expenses. In support he submitted an agreement signed by him and his representative, according to which he was due to pay that amount upon completion of the proceedings pending before the Court. 43.     The Government claimed that the amount claimed was neither supported by any evidence nor reasonable. 44.     According to the Court’s case ‑ law, costs and expenses can be awarded under Article 41 only if it is established that they were actually and necessarily incurred and were reasonable as to quantum. Furthermore, the Court is not bound by domestic fee scales and practices (see Assanidze v.   Georgia [GC], no. 71503/01, § 206, ECHR 2004 ‑ II). In the present case, regard being had to the documents in its possession and the above criteria, and taking into account the complexity of the present case as well as the quality and volume of the legal work carried out, the Court considers it reasonable to award the applicant EUR 1,000 for the proceedings before the Court. C.     Default interest 45.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 6 § 1 of the Convention;   3.     Holds (a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i)     EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii)     EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 26 July 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Claudia Westerdiek   Angelika Nußberger   Registrar   President [1] Rectified on 28 August 2018   : heading added.