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THIRD
SECTION
CASE OF NIKOGHOSYAN AND MELKONYAN v. ARMENIA
(Applications
nos. 11724/04 and 13350/04)
JUDGMENT
STRASBOURG
6 December
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Nikoghosyan and Melkonyan v. Armenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Mr B.M. Zupančič,
President,
Mr C. Bîrsan,
Mrs E.
Fura-Sandström,
Mrs A. Gyulumyan,
Mr E.
Myjer,
Mrs I. Ziemele,
Mrs I. Berro-Lefèvre,
judges,
and Mr S. Quesada, Section Registrar,
Having
deliberated in private on 15 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 11724/04 and 13350/04)
against the Republic of Armenia lodged with the Court under Article
34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by two Armenian
nationals, Ms Nelsida Nikoghosyan and Mr Gvidon Melkonyan (“the
applicants”), on 10 March and 18 March 2004 respectively. They
were self-represented.
- The Armenian Government (“the Government”)
were represented by their Agent, Mr G. Kostanyan,
Representative of the Republic of Armenia at the European Court of
Human Rights.
- On
14 October 2005 the Court decided to give notice of the applications
to the Government. Under the provisions of Article 29 § 3 of the
Convention, it decided to examine the merits of the applications at
the same time as their admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1976 and 1933 respectively and live in the
village of Hnaberd, Aragatsotn Region.
1. The initial proceedings
- On
an unspecified date, the applicant Melkonyan (hereafter, the second
applicant) instituted proceedings against a third person, M., seeking
pecuniary damages.
- On
18 November 1999 the Aragatsotn Regional Court (Արագածոտն
մարզի առաջին
ատյանի դատարան)
granted his claim and ordered M. to pay 925,000 Armenian drams (AMD)
(approx. 1,710 euros (EUR)).
- On
28 January 2000 the Department for the Enforcement of Judicial Acts
(DEJA) (Դատական
ակտերի հարկադիր
կատարումն
ապահովող
ծառայություն)
instituted enforcement proceedings. On the same date, the DEJA placed
a seizure order on M.'s property, including land and cattle.
- On
22 March 2000 the seized property was put on a public auction which
took place on 22 August 2000. This property was bought by the second
applicant.
- On
an unspecified date, seven members of M.'s family instituted
proceedings against the DEJA. They claimed that the confiscated
property had been jointly owned by them, but the DEJA had failed to
sever M.'s share when confiscating the property in question. They
sought to annul the relevant acts and measures taken in the course of
the enforcement proceedings, including the public auction. They also
instituted proceedings against the second applicant, seeking to lift
the seizure order over the property in question.
- On
23 July 2002 the Aragatsotn Regional Court dismissed their claim
concerning the lifting of the seizure.
- On
23 August 2002 the second applicant sold a part of the land in
question jointly to the applicant Nikoghosyan (hereafter, the first
applicant) and a third person, A.
- On
12 September 2002 the first applicant and A. received a certificate
of joint ownership in respect of the land.
- On
4 October 2002 the Aragatsotn Regional Court granted the claim of
M.'s family members against the DEJA, finding that their property
rights had been violated by the enforcement proceedings since the
DEJA should have severed and confiscated M.'s share in the property
jointly owned by him and his family members instead of confiscating
the entire property. The Regional Court annulled the acts and
measures taken in the course of the enforcement proceedings. No
appeal was lodged against this judgment.
- On
11 October 2002 the Civil Court of Appeal (ՀՀ քաղաքացիական
գործերով վերաքննիչ
դատարան) quashed
the judgment of 23 July 2002 and lifted the seizure.
- On
29 November 2002 the Court of Cassation (ՀՀ
վճռաբեկ դատարան)
upheld this judgment.
2. The proceedings concerning the annulment of the
sales contract of 23 August 2002 and the certificate of joint
ownership of 12 September 2002
- On
an unspecified date, the members of M.'s family instituted
proceedings against the applicants and A. seeking to annul the sales
contract of 23 August 2002 and the certificate of joint ownership of
12 September 2002.
- On
25 April 2003 the Aragatsotn Regional Court granted their claim and
annulled these documents.
- On
an unspecified date, the applicants lodged an appeal.
- On
30 May 2003 the Civil Court of Appeal, based in Yerevan, posted a
summons addressed to both applicants, notifying them that the appeal
hearing on the case would take place on 10 June 2003 at 11 a.m. in
Yerevan
- The
envelope which contained the above summons had three postmarks: one
dated 30 May 2003 and put in Yerevan, and two dated
12 and 17
June 2003, both put in Aragatsotn Region. On the front side of the
envelope, in its lower left part, the second applicant wrote
“Received on 17 June 2003 from the head of the post
office”.
- According
to the applicants, this letter was received in Hnaberd post office on
17 June 2003 and was served on them on the same date.
- The
Government contested this submission and claimed that the summons was
timely delivered to the applicants.
- On
10 June 2003 the Civil Court of Appeal held the hearing as scheduled
and decided to uphold the judgment of 25 April 2003. The plaintiff's
representative was present and made oral submissions and
explanations. As regards the absence of the applicants, the Court of
Appeal stated that:
“[The applicants and A.] received in person the
summons notifying them about the place and time of the hearing, but
they failed to appear.”
- It
appears that a copy of this judgment was sent to and received by the
first applicant on 31 June and 4 July 2003 respectively. It further
appears that the second applicant received a copy of this judgment in
person at the Court of Appeal on 15 August 2003.
- On
the same date, the applicants lodged a cassation appeal in which they
submitted, inter alia, that they had not been timely notified
of the hearing of 10 June 2003 and therefore had been unable to
attend and make submissions. They argued that the summons had been
served on them only on 17 June 2003 which was confirmed by, inter
alia, the relevant envelope.
- It
appears that, since this cassation appeal was lodged out of time,
attached to their appeal the applicants submitted a request to
restore the missed time-limit for appeal. They allege that the Court
of Cassation granted this request on the ground that the summons in
question had been served on them only on 17 June 2003. The applicants
did not, however, submit a copy of such a decision.
- On
26 September 2003 the Court of Cassation examined and dismissed the
applicants' cassation appeal in the absence of the parties and upheld
the judgment of the Court of Appeal. The Court of Cassation in its
decision did not touch upon the issue of the applicants' absence from
the hearing of 10 June 2003.
II. RELEVANT DOMESTIC LAW
- The
relevant provisions of the Code of Civil Procedure (CCP) (ՀՀ
քաղաքացիական
դատավարության
օրենսգիրք)
read as follows:
Article 6: Adversarial proceedings and equality of
arms
“Civil proceedings shall be conducted in an
adversarial procedure and with respect for equality of arms.”
Article 28: Rights and obligations of the parties
“1. The parties have the right: ... (3)
to submit evidence and participate in its examination...; (4) to ask
questions, file motions and make explanations in court;
(5) to
submit their arguments concerning all issues raised during the court
examination; (6) to object against the motions and arguments made by
other parties...”
Article 29: The parties
“1. The parties to civil proceedings
... are the plaintiff and the respondent.
...
4. The parties enjoy equal procedural rights
and bear equal procedural obligations.”
Article 78: Court summons
“1. The parties to the proceedings
shall be informed about the time and place of the court hearing ...
by a court summons...
2. The summons shall be sent by registered
post with acknowledgement of receipt or by other means of
communication ensuring the registration of notification or is served
against a receipt (hereafter, duly notified).”
Article 117: Verifying the presence of the parties
and other participants of the proceedings
“1. The clerk of the court hearing
reports to the court about the presence of the parties and other
participants of the proceedings and whether those who are absent have
been duly notified, and also provides information about the reasons
for their absence.”
Article 118: Examination of the case in the absence
of the plaintiff or the defendant
“2. The non-appearance of the defendant
who has been duly notified about the time and place of the court
hearing shall not preclude the examination of the case.”
Article 119: Adjournment of the case
“1. The court is entitled to adjourn
the examination of the case if ... it cannot be examined at the
hearing in question because of the absence of one of the parties...”
Article 213: Decision to admit an appeal (as in force
at the material time)
“1. The court of appeal shall adopt a
decision to admit an appeal.
2. The decision should indicate the time and
place of the court examination.
3. The decision shall be duly sent to the
parties.”
Article 225: Grounds for lodging a cassation appeal
“A cassation appeal can be lodged on ... points of
law or a procedural violation of the parties' rights...”
Article 227: Violation or wrong application of
procedural rules
“2. A court judgment shall be ...
quashed, if ... the case was examined in the absence of one of the
parties who had not been duly notified about the time and place of
the hearing...”
Article 238: A decision of the Court of Cassation (as
in force at the material time)
“3. The Court of Cassation is not
entitled to establish or consider as proven circumstances which have
not been established by the judgment [of the Civil Court of Appeal]
or have been rejected by it, to determine whether or not this or that
piece of evidence is trustworthy, to resolve the issue as to which
piece of evidence has more weight or the issue as to which norm of
substantive law must be applied and what kind of judgment must be
adopted upon the new examination of the case.”
Article 241.1: Grounds for reviewing judgments and
decisions on the basis of new circumstances
“1. Judgments and decisions can be
reviewed on the basis of new circumstances [if] ... a violation of a
right (rights) guaranteed by an international convention to which
Armenia is a party has been found by a final judgment or decision of
an international court...”
- The
relevant provisions of the Law on the Court System
(«Դատարանակազմության
մասին» ՀՀ օրենք)
read as follows:
Article 18: The notion, composition and location of
courts of appeal
“A court of appeal is the court which, on the
basis of an appeal, carries out a fresh examination of the merits of
the case which has been examined by the court of first instance.
The court of appeal is not constrained by the arguments
raised in the appeal and can examine the case in its entirety...”
THE LAW
- The
Court considers that, given their common factual and legal
background, the applications should be joined.
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
they were not duly notified about the hearing of 10 June 2003 and
therefore were not able to participate in it. The relevant part of
Article 6 § 1 reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government argued that the applicants were duly notified about the
date and time of the hearing of 10 June 2003, but deliberately did
not appear and forged the relevant evidence. According to the
established procedure, the receipt of a letter is acknowledged by
signing in the register and there is no such procedure whereby the
recipient signs on the envelope, as the applicants did. As regards
the postmark of 17 June 2003, its origin was unclear. A receiving
post office accepts letters by a consignment note and not by putting
a postmark on the envelope. In the applicants' case, the package
which contained the summons in question was handed over to the postal
service by the Civil Court of Appeal on 30 May 2003. From there it
was sent to a distribution centre and on 31 May 2003 sent to the
village of Alagyaz. On 2 June 2003 the package was received in the
Alagyaz post office and on the same date it was delivered to the
Tsaghkahovit post office, from where on the same date it was sent to
the Hnaberd post office. Thus, if the package reached Tsaghkahovit
from Yerevan (about 100 km) in three days, then it was not possible
for it to take 14 days to reach Hnaberd from Tsaghkahovit (about 30
km). Furthermore, according to the established procedure, letters
from Tsaghkahovit are dispatched on a daily basis. It follows that
the summons was timely delivered to the applicants. The Government
claimed that this fact was recorded in the form no. 8 register but
they were unable to submit a copy of this register since it was
destroyed following the expiry of the one-year time-limit.
- The
Government further argued that, even though the applicants were not
present at the hearing of 10 June 2003 before the Civil Court of
Appeal, there was no violation of the principle of equality of arms,
since the applicants were able to state their position before the
Court of Cassation by lodging a cassation appeal.
- The
applicants first submitted that the Civil Court of Appeal violated
Article 213 of the CCP by not adopting and sending to them a decision
to admit their appeal, which should have contained information about
the time and place of the hearing. They further insisted that the
summons was served on them on 17 June 2003 which was demonstrated by
the official postmark put on the envelope by the Hnaberd post office.
The Government's allegations of forgery were unsubstantiated and
fictitious. As to the second applicant's writing on the envelope, the
applicants submitted that this was made to serve in the future as an
additional proof that the summons had been served with delay. It is
true that, when receiving the package, they signed in the form no. 8
register but this was done on 17 June 2003 and not earlier, as the
Government claimed. Finally, their position was supported by the fact
that the Court of Cassation granted their request and admitted their
out-of-time cassation appeal lodged on 15 August 2003 on the ground
that the summons had been served on 17 June 2003.
- The
applicants further submitted that the Civil Court of Appeal had no
evidence in its possession confirming the fact that they had been
duly notified of the hearing and failed to diligently verify this
fact, deciding to hold a hearing on 10 June 2003 in their absence and
thereby violating the principle of equality of arms.
- The
Court reiterates that where litigation involves
opposing private interests, the requirement of equality of arms, one
of the features of the wider concept of a fair trial, implies that
each party must be afforded a reasonable opportunity to present their
case – including evidence – under conditions that do not
place them at a substantial disadvantage vis-à-vis
their opponent (see, e.g.,
Dombo Beheer B.V. v. the Netherlands, judgment of 27 October
1993, Series A no. 274, § 33; and Steck-Risch and Others
v. Liechtenstein, no. 63151/00, § 54, 19 May 2005).
Furthermore, the failure of the authorities to apprise a party of a
hearing in such a way so as for it to have an opportunity to exercise
his or her right to attend may, in certain circumstances, raise
issues under Article 6 § 1 (see, mutatis
mutandis, Yakovlev v.
Russia, no. 72701/01, § 21, 15 March 2005; and
Groshev v. Russia, no. 69889/01, § 29, 20
October 2005). In the present case, the
applicants were absent from the hearing before the Civil Court of
Appeal of 10 June 2003, while their opponent was present.
-
The Court notes that the parties disagree as to the date when the
applicants were notified about this hearing, the Government claiming
that the applicants had been duly notified but deliberately did not
appear, while the applicants claiming that the summons had been
served on them after this hearing had already taken place. They
submitted various arguments and evidence in support of their
positions.
- In
this respect, the Court notes that, notwithstanding the provisions of
Article 78 § 2 of the CCP (see paragraph 28 above), the
Government failed to submit any documentary evidence from which it
would be clear exactly on which date the applicants received the
package dispatched on 30 May 2003 containing the relevant
summons. The only evidence which the Government were able to produce
are copies of registers of various intermediate post offices –
from which it appears that the package in question was dealt with by
these post offices on 2 June 2003 – followed by assumptions
that this package should have been delivered on time. On the other
hand, there are two official postmarks on the relevant envelope dated
12 and 17 June 2003 which suggest that the package was still dealt
with by the postal services of Aragatsotn Region on these dates, both
of which happen to be after the hearing in question. The Government
did not provide any plausible explanation regarding these postmarks,
simply claiming that their origin was unclear and that, according to
the established procedure, they should not have been put.
Furthermore, it is not clear on the basis of what evidence the Civil
Court of Appeal stated in its judgment of 10 June 2003 that “the
applicants received in person the summons notifying them about the
place and time of the hearing, but they failed to appear”, and,
if such evidence existed in the case file, why the Government were
not able to submit it. Nor is it clear why the Court of Cassation, in
its decision of 26 September 2003, did not touch upon and
dismiss the applicants' complaint about the failure of timely
notification explicitly raised in their cassation appeal, had there
been evidence to the contrary. In such circumstances, the Court is
not convinced by the Government's arguments and concludes that the
applicants were not duly notified about the hearing of 10 June 2003.
- Having
come to this conclusion, the Court considers that the Civil Court of
Appeal failed to properly verify as to whether the applicants had
been duly notified about the hearing, holding it in their absence.
The plaintiff's representative was present at this hearing, and made
oral submissions and explanations which the applicants were not able
to comment on. Nor were they able to make their own oral submissions
in support of their claims. This deficiency was not remedied by the
fact that the applicants could lodge an appeal with the Court of
Cassation, as the latter, as opposed to the Civil Court of Appeal,
does not carry out a full review of the case (see, mutatis
mutandis, Steck-Risch and Others, cited above, § 56).
This is even more so considering that the Court of Cassation had
competence to remit the case for a new examination on the ground of a
procedural violation of the applicants' rights, as requested in their
cassation appeal (see paragraph 25 above), but it failed to do so
(see, mutatis mutandis, Miholapa v. Latvia, no.
61655/00, § 30, 31 May 2007). It follows that, in the
circumstances of the case, the principle of equality of arms was not
respected.
- There
has accordingly been a violation of the applicants' right to a fair
hearing enshrined in Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicants complained under Article 6 § 1 of the Convention that
(1) the domestic courts, in determining the dispute concerning the
annulment of the sales contract and of the certificate of joint
ownership, incorrectly evaluated the facts and evidence, and made
unlawful conclusions; (2) they did not have a fair hearing in the
proceedings of 4 October 2002 and (3) they did not have a fair
hearing in the proceedings which terminated with the decision of 29
November 2002. They also invoked Article 13 of the Convention and
Article 1 of Protocol No. 1 in connection with all three sets of
proceedings, which, in so far as relevant, provide:
Article 13 of the Convention
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law.
The preceding provisions shall not, however, in any way
impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the
general interest or to secure the payment of taxes or other
contributions or penalties.”
Admissibility
1. The proceedings concerning the annulment of the
sales contract and of the certificate of joint ownership
(a) Article 6 § 1 of the Convention
- The
Court reiterates that it is not for the Court to act as a court of
appeal in respect of the decisions taken by domestic courts. It is
the role of the domestic courts to interpret and apply the relevant
rules of procedural or substantive law (see, e.g., Fehr v.
Austria, no. 19247/02, § 32, 3 February 2005). The Court
considers that this complaint under Article 6 § 1 discloses no
appearance of a violation of the guarantees of this Article.
- It
follows that this part of the applications is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
(b) Article 1 of Protocol No. 1
- The Court recalls that the function of the domestic
courts in a dispute between private parties is to determine the
nature and extent of the parties' mutual duties and obligations. The
decisions taken by the domestic courts in such disputes do not
generally give rise to an interference with property rights under
Article 1 of Protocol No. 1 to the Convention (see, e.g., The
Governor and Company of the Bank of Scotland v. the United Kingdom
(dec.), no. 37857/97, 21 October 1998). The Court notes that, in
the present case, the court decisions provided a solution to a
civil-law dispute between private parties. Those decisions cannot by
themselves engage the responsibility of the respondent State under
Article 1 of Protocol No. 1, the more so since there is no appearance
of arbitrariness in the decisions reached.
- It
follows that this part of the applications is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
(c) Article 13 of the Convention
- According to the Court's case-law, Article 13 only
applies where an individual has an “arguable claim” to be
the victim of a violation of a Convention right (see Boyle and
Rice v. the United Kingdom, judgment of 27 April 1988, Series A
no. 131, § 52). The Court notes that it has found the
applicants' complaints under Article 6 § 1 of the
Convention and Article 1 of Protocol No. 1 to be manifestly
ill-founded. For similar reasons, the applicants did not have an
“arguable claim” that their enjoyment of those rights was
breached in the circumstances of the case. Article 13 is therefore
inapplicable to their case.
- It
follows that this part of the applications is also manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and must be rejected pursuant to Article 35 § 4.
2. The proceedings of 4 October 2002
- The
Court recalls that it may only examine complaints in respect of which
domestic remedies have been exhausted and which have been submitted
within six months from the date of the “final” domestic
decision (see, e.g., Valašinas v. Lithuania (dec.), no.
44558/98, 14 March 2000). In the present case, the applicants did not
lodge an appeal against the judgment of 4 October 2002 with the Civil
Court of Appeal.
- It
follows that the applicants have failed to exhaust domestic remedies
as required by Article 35 § 1 of the Convention, and that this
part of the applications must be rejected pursuant to Article 35 §
4 of the Convention.
3. The proceedings that terminated with the decision of
29 November 2002
- The
Court notes that the proceedings in question terminated on
29 November 2002, while the applications were lodged with the
Court only on 10 and 18 March 2004.
- It
follows that this part of the applications was lodged out of time and
must be rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicants claimed a total of AMD 7,439,000 (approx. EUR 13,642)
in respect of pecuniary damage which represented the losses that the
second applicant had allegedly incurred in the course of the
enforcement proceedings and the income which they would not have
allegedly lost, had the domestic courts granted their claims. They
also requested to restore the situation by returning the land and
cattle which allegedly belonged to them. The applicants did not claim
any non-pecuniary damage.
- The
Government submitted that there was no causal link between the
alleged violation of Article 6 § 1 of the Convention and the
applicants' claims for pecuniary damage. Nor did the applicants
substantiate their claims with any documentary proof.
- As
regards the losses allegedly incurred by the second applicant in the
course of the enforcement proceedings, the Court does not discern a
causal link between the damage claimed and the violation found. The
Court further notes that in the present case an award of just
satisfaction can only be based on the fact that the applicants did
not have the benefit of the guarantees of Article 6 § 1 of the
Convention. It cannot speculate, however, as to what the outcome of
proceedings compatible with Article 6 § 1 might have been, had
the requirements of this provision not been violated. It therefore
rejects the applicants' claims for pecuniary damage (see, mutatis
mutandis, Coëme and Others v. Belgium, nos. 32492/96,
32547/96, 32548/96, 33209/96 and 33210/96, § 155, ECHR
2000 VII). Furthermore, the Court considers that in the absence
of any claims for non-pecuniary damage there is no reason to award
the applicants any sum under that head either.
- On
the other hand, the Court considers it necessary to point out that a
judgment in which it finds a violation of the Convention or its
Protocols imposes on the respondent State a legal obligation not just
to pay those concerned the sums awarded by way of just satisfaction,
if any, but also to choose, subject to supervision by the Committee
of Ministers, the general and/or, if appropriate, individual measures
to be adopted in its domestic legal order to put an end to the
violation found by the Court and make all feasible reparation for its
consequences in such a way as to restore as far as possible the
situation existing before the breach (see Scozzari and Giunta
v. Italy [GC], nos. 39221/98 and 41963/98, § 249,
ECHR 2000 VIII; Ilaşcu and Others v. Moldova and Russia
[GC], no. 48787/99, § 487, ECHR
2004-VII; and Lungoci v.
Romania, no. 62710/00, § 55, 26 January 2006). In the case
of a violation of Article 6 of the Convention, the applicant should
as far as possible be put in the position he would have been in had
the requirements of this provision not been disregarded (see, mutatis
mutandis, Sejdovic v. Italy [GC], no. 56581/00, §
127, ECHR 2006 ...; and Yanakiev v. Bulgaria,
no. 40476/98, § 89, 10 August 2006).
- The
Court notes in this connection that Article 241.1 of the CCP allows
the reopening of the domestic proceedings if the Court has found a
violation of the Convention or its Protocols (see paragraph 28
above). The Court is in any event of the view that the most
appropriate form of redress in cases where it finds that a trial was
held in the applicant's absence in breach of Article 6 § 1 of
the Convention would, as a rule, be to reopen the proceedings in due
course and re-examine the case in keeping with all the requirements
of a fair trial (see, mutatis mutandis, Lungoci, cited
above, § 56).
B. Costs and expenses
- The
applicants also claimed AMD 138,000 (approx. EUR 253) for the costs
and expenses incurred before the domestic courts, such as those
connected with the payment of court fees, preparation and copying of
documents, postal expenses and legal assistance.
- The
Government submitted that the applicants had failed to substantiate
their claims concerning costs and expenses with any documents. They
did not submit any proof that these costs had been actually incurred
or that an agreement existed between them and their legal
representative to make any payments in the future.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. The Court notes that the applicants failed to submit any
documentary proof of the alleged costs and expenses and it therefore
rejects these claims.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaint concerning the
applicants' absence from the hearing of 10 June 2003 admissible and
the remainder of the applications inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in that the principle of equality of
arms was not respected;
- Dismisses the applicants' claim for just
satisfaction.
Done in English, and notified in writing on 6 December 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Boštjan M. Zupančič
Registrar President
