CEDH · CASELAW;COMMUNICATEDCASES;ENG — 9 mai 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s8578A85B { margin-top:0pt; margin-bottom:0pt; text-indent:11.6pt } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sAAD669EE { font-family:Arial; font-size:6.67pt; font-weight:bold; vertical-align:super } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 9 May 2016   SECOND SECTION Application no. 61913/15 Arvo MERISALU and Maie MERISALU against Estonia lodged on 10 December 2015 STATEMENT OF FACTS The applicants, Mr Arvo Merisalu and Ms Maie Merisalu, are Estonian nationals who were born in 1960 and 1962, respectively, and live in Saare County. They are represented before the Court by Mr J. Saar, a lawyer practising in Tallinn. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The applicants were defendants in a civil case in which the plaintiff had claimed 7,132.62 euros (EUR) in compensation for damage (loss of profit) related to the unauthorised destruction by the applicants of rapeseed sowed by the plaintiff. The dispute centred on the different estimates used to calculate the damages. In the court of first instance, the parties were given a deadline for submitting their final observations and evidence – 24   November 2014 for the plaintiff and 4 December 2014 for the defendants. The plaintiff submitted his final observations and evidence by 24 November 2014, but the court did not send them to the applicants. The observations concentrated mainly on the existing dispute and they contained no new claims. The applicants presented their final observations by 4   December 2014, but did not present any additional evidence. The Pärnu County Court issued its judgment on 12 December 2014 referring, inter alia , to the final observations submitted by the plaintiff. The court granted the claim in part and awarded to plaintiff EUR 5,377 in total to the plaintiff. The court found that the parties had not presented clear evidence for the calculation of the damages. The court therefore used its discretion to calculate the exact amount of compensation, taking into account the defendants’ arguments and the principle that any gain received by the injured party as a result of the damage caused, particularly the costs avoided by the injured party, was to be deducted from the compensation to be awarded. The applicants appealed. They referred to the fact that the plaintiff´s final observations and evidence had not been sent to them and that they had become aware of these submissions in the judgment of the first-instance court. The applicants wished to submit additional evidence, which they considered relevant for replying to the final observations of the plaintiff, to the Tallinn Court of Appeal. That court did not accept any additional evidence from the parties. In a judgment dated 1 April 2015, the Court of Appeal concluded that the County Court had breached procedural law by not sending the plaintiff’s final observations and evidence to the applicants. Nevertheless, it concluded that the breach had not affected the outcome of the case and, in using its discretion to determine the amount of damages, the County Court had not exceeded its discretionary powers. The Court of Appeal relied on the evidence submitted by the plaintiff on 24 November 2014 in support of its judgment. On 15 June 2015 the Supreme Court upheld the Court of Appeal`s judgment, refusing to open proceedings for an appeal in cassation. B.     Relevant domestic law The Code of Civil Procedure, in force at the material time, provided as follows: Article 311 1 (Electronic service of procedural documents) “(7) The court shall make all procedural documents, including court decisions, immediately available to the parties to the proceedings on the designated information system, regardless of the method of service on the parties to the proceedings.” Article 328 (Correctness of petitions and guarantee of response to petitions) “... (2) The court shall give a party the opportunity to respond to the petitions and factual allegations of the opposing party unless otherwise provided by law.” Article 436 (Lawful and reasoned judgment) “(1) A court judgment shall be lawful and reasoned. ... (3) In making a judgment, the court may only rely on the evidence the parties were able to examine and the facts on which the parties were able to present their positions.” COMPLAINT The applicants complain under Article 6 § 1 that the civil proceedings were unfair. They claim that the Pärnu County Court did not send them the plaintiff’s final observations and evidence and that they were thus unable to make submissions in reply and challenge the outcome of the case, which was in breach of their right to a fair and adversarial hearing.   QUESTION TO THE PARTIES Have the Estonian courts breached the applicants` right to a fair and adversarial hearing and the principle of “equality of arms” guaranteed by Article   6 § 1 of the Convention, having regard, in particular, to the failure of the Pärnu County Court to provide the applicants with the opportunity to respond to the final observations and evidence submitted by the plaintiff on 24 November 2014?