BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
SECOND
SECTION
CASE OF OGANOVA v. GEORGIA
(Application
no. 25717/03)
JUDGMENT
STRASBOURG
13
November 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 Oganova v. Georgia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mrs A.
Mularoni,
Mr D. Popović, judges,
and Mrs S.
Dollé, Section Registrar,
Having
deliberated in private on 16 October 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 25717/03) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Ms Karina Oganova, a Georgian national, on
18 July 2003.
- The
Georgian Government (“the Government”) were represented
by their Agent, Ms I. Bartaia of the Ministry of Justice.
- On
18 November 2005 the Court decided to communicate to the Government
the applicant's complaint concerning the absence of an oral hearing
before the Supreme Court. Under the provisions of Article 29 § 3
of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
- The
Government and the applicant each filed observations on admissibility
and merits (Rule 54A of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1960 and lives in Tbilisi.
- On
8 May 2002 the applicant brought a civil action, claiming back the
money which she had lent to a private person on 14 September 1998,
further to a note envisaging repayment within two months.
- On
22 May 2002 the respondent replied in writing, claiming that she had
repaid the debt and that the applicant's action was time-barred under
Articles 129 and 130 of the Civil Code (“the CC”).
- On
14 June 2002 the Isani-Samgori District Court allowed the applicant's
claim at an oral hearing. The court found that the respondent's
assertion about payment of the debt was unsubstantiated. It did not
reply to the time-bar objection.
- On 5 August 2002 the respondent appealed, reiterating,
inter alia, that the applicant's action was time-barred. The
latter replied that, in view of the respondent's continuous promises
to discharge the debt, she could not have concluded that her rights
had been breached between 1998 and 2001.
- On
18 September 2002 the Tbilisi Regional Court quashed the judgment of
14 June 2002 and decided the case anew, dismissing the applicant's
action as time-barred. The appellate court found that the limitation
period had started to run from the date of non-compliance with the
note of 14 September 1998, that is two months after the loan, on
14 November 1998. It noted that the case materials did not
substantiate the applicant's assertion that the respondent had
continuously promised to return the money.
- On 16 October 2002 the applicant lodged a cassation
claim. Referring to various circumstances of the case, she reiterated
that the respondent's verbal assurances had prevented her from
applying to the court earlier. She consequently claimed that the
appellate court had wrongly applied Articles 129 and 130 of the CC.
- On 19 November 2002 the Supreme Court of Georgia
declared the applicant's cassation claim admissible but decided to
dispense with an oral hearing on the merits. Both parties were
informed of that decision on 22 November 2002. On the same day,
the cassation claim was forwarded to the respondent for comments. No
reply was forthcoming from the latter.
- On 6 February 2003 the Supreme Court dismissed the
applicant's cassation claim. Endorsing the facts of the case as
established by the appellate court, the cassation court found that
the disputed Articles 129 and 130 of the CC had been correctly
interpreted and applied in the appellate judgment of 18 September
2002 and that, consequently, there was no ground, under Article 393
§§ 1 and 2 of the Code of Civil Procedure, to quash it.
II. RELEVANT DOMESTIC LAW AND PRACTICE
14. The Civil Code,
as it stood at the material time
Pursuant
to Articles 129 § 1 and 130, the period for bringing contractual
claims was limited to three years, and it started to run from the
moment the person learnt or should have learnt about the breach of
his or her rights.
15. The Code of
Civil Procedure, as it stood at the material time
Pursuant
to Article 393 §§ 1 and 2, only the lawfulness of an
appellate judgment could be challenged in cassation. The disputed
judgment could be found to be unlawful if the appellate court had
wrongly applied or interpreted the law.
Article
396 § 1 (f) required the appellant to mention in his or her
cassation claim those facts which supported the alleged breaches of
procedural law if the cassation claim was calling into question the
application of procedural legal provisions.
Article 404 § 1
“The cassation court shall review the [disputed]
judgment only in so far as challenged in the cassation claim. The
cassation court cannot go beyond the facts referred to under Article
396 § 1 (f) and inquire of its own motion into other procedural
breaches.”
Article 407 §§ 1 and 2
“The cassation court shall take into account the
party's submissions only in so far as disclosed by the case file or
the appellate judgment; only the facts submitted under Article 396 §
1 (f) can be taken into account.
The establishment of the facts [by the appellate court]
is binding on the [cassation] court, unless an additional and
well-founded cassation argument has been raised.”
Article 408 § 3
“In the event the cassation court finds it
appropriate..., it can decide the case without an oral hearing. The
parties shall be notified of such a decision.”
Article 411
“The cassation court shall take a [final] decision
itself if the circumstances of the case have been established by the
appellate court without procedural breaches and there is no need for
additional fact finding.”
Article 412 § 1 and 2
“If it is not possible for the cassation court to
decide the case in accordance with Article 411, it shall quash the
appellate judgment and remit the case for a retrial.
If the cassation court quashes the disputed judgment
because of the legal assessment, it shall indicate to the appellate
court which circumstances of the case require additional examination,
what kind of evidence has to be collected further and what other
procedural acts are to be conducted.”
16. The
Constitutional Court's judgment of 3 July 2003 in the case of
Rizhamadze and Mumladze v. the Parliament of Georgia
The
Constitutional Court dismissed the applicants' complaint challenging
Article 408 § 3 of the CCP, which provided for the possibility
to dispense with an oral hearing in cassation proceedings.
The
Constitutional Court noted that, unlike an appellate court which
established facts, the cassation court could only review the
application of legal provisions. It could however examine, on the
basis of Articles 396 § 1 (f) and 407 §§
1 and 2 of the CCP, the facts which have been explicitly raised by
the appellant in relation to the alleged violations of procedural
law.
Consequently,
whilst the scope of the review was mostly limited to the assessment
of the application of procedural and substantive law, the
Constitutional Court concluded that the right to an oral hearing in
cassation proceedings was not absolute.
17. The Supreme
Court's practice
In
its judgment of 28 February 2006 in the case of
“Gokhi” v. “Telasi” JSC,
the Supreme Court defined the notion of an “additional and
well-founded cassation argument” (Article 407 § 2 of the
CCP), as follows:
“...'An additional and well-founded cassation
argument' is ... a reference to those procedural breaches which,
having been committed by the appellate court during the examination
of the case, have resulted in an erroneous assessment of the matters
of fact and/or the incorrect interpretation and application of
substantive legal provisions.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained, under Article 6 § 1 of the Convention,
that the Supreme Court of Georgia had dispensed with an oral hearing
in her case. She further challenged the outcome of the proceedings,
claiming that the appellate and cassation courts should have endorsed
the judgment of the first instance court. The invoked provision, in
its relevant part, reads as follows:
“1. In the determination of his civil rights
and obligations..., everyone is entitled to a fair and public
hearing...”
A. Admissibility
1. As to the complaint about the outcome of proceedings
- By
calling into question the outcome of the proceedings, the applicant
requests the Court to act as an appeal court of “fourth
instance”. However, the Court reiterates that the domestic
courts are best placed for assessing the relevance of evidence to the
issues in the case and for interpreting and applying rules of
substantive and procedural law (see, amongst many authorities, Vidal
v. Belgium, judgment of 22 April 1992, Series A
no. 235-B, pp. 32-33, § 32; Gurepka v.
Ukraine, no. 61406/00, § 45, 6 September 2005). In
so far as the relevant domestic decisions do not disclose any
manifestly arbitrary reasoning (cf., a contrario, Donadze v.
Georgia, no. 74644/01, § 32, 7 March 2006), the
Court finds that this limb of the applicant's complaint under Article
6 § 1 is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
2. As to the complaint about the absence of an oral hearing in
cassation
- Noting
that the proceedings before the Supreme Court, bearing on the
assessment of the question of a limitation period, did not concern
the applicant's civil right as such, the Court considers that Article
6 § 1 of the Convention is nevertheless applicable, as the
outcome of the cassation proceedings was clearly decisive for the
examination of her pecuniary claim on the merits (see, amongst other
authorities, Zander v. Sweden, judgment of 25 November
1993, Series A no. 279-B, p. 38, § 22; Moreira de Azevedo v.
Portugal, judgment of 23 October 1990, Series A no. 189,
p. 17, § 66).
- The
Court further notes that this complaint is neither manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The Government submitted that, under Georgian law, the
primary role of the Supreme Court in cassation was to review the
lawfulness of appellate decisions. The cassation court was not
competent to examine the facts of a case, except those which had been
specifically referred to in the cassation claim to demonstrate the
alleged breaches of procedural law. If the Supreme Court were to find
that the factual circumstances of a case had been established by the
appellate court in the face of procedural violations and an
additional examination of evidence was consequently required, it
would remit the case for a retrial.
- According
to the Government, it was because of the aforementioned nature of
cassation proceedings that Article 408 § 3 of the CCP had been
enacted. Thus, where the cassation court could not inquire into the
circumstances of the case and was only called on to assess the
already established facts from a legal point of view, the parties'
participation at an oral hearing might not always be necessary. This
rule was also justified, in the Government's opinion, by such
legitimate considerations as the right to a hearing within a
reasonable time and the demands of economy.
- As
to the present case, according to the Government, the Supreme Court
of Georgia had only to inquire into the lawfulness of the appellate
judgment. It could not re-examine the factual circumstances of the
case, as requested by the applicant in her cassation claim. The
cassation court was not even called upon to assess the facts relating
to alleged procedural breaches, as no such “cassation argument”
(sakasacio
pretenzia) had been raised by the applicant (cf.
Article 407 § 2 of the CCP, paragraph 15 above). In the
Government's view, the inquiry into the points of law in the light of
the already established facts was fully possible on the basis of the
applicant's written observations and case materials. Furthermore, the
applicant had been informed in advance of the decision to dispense
with an oral hearing.
- In
the light of the foregoing, the Government claimed that the absence
of an oral hearing before the Supreme Court of Georgia could not be
said to have breached any of the guarantees of a fair hearing.
- The
applicant maintained her complaint.
2. The Court's assessment
- The
Court recalls that the entitlement to a “public hearing”
in Article 6 § 1 necessarily implies a right to an “oral
hearing”. However, the obligation under Article 6 § 1 to
hold such a hearing is not an absolute one. Thus, the absence of an
oral hearing may be compatible with the requirements of Article 6
when the issue which is to be decided raises no questions of fact or
law which cannot be adequately resolved on the basis of the case file
and the parties' written observations (see, mutatis mutandis,
Fredin v. Sweden (no. 2), judgment of 23 February
1994, Series A no. 283 A, pp. 10 11,
§§ 21-22; Fischer v. Austria, judgment of 26
April 1995, Series A no. 312, pp. 20-21, § 44).
- The
Court further recalls that, in proceedings before a court of first
and only instance, there is normally a right to an oral hearing (see,
Håkansson and Sturesson v. Sweden, judgment of 21
February 1990, Series A no. 171 A, p. 20, § 64).
However, the absence of a hearing before a second or third level of
jurisdiction may be justified by the special features of the
proceedings at issue, provided a hearing has been held at first
instance (see, for example, Helmers v. Sweden, judgment
of 29 October 1991, Series A no. 212-A, p. 16, §
36)
- As
regards the Supreme Court of Georgia when sitting in cassation, the
Court observes that its role was primarily to examine the lawfulness
of appellate decisions. It follows from the Government's submissions,
undisputed by the applicant and supported by the domestic law and
practice, that the cassation court was not competent to decide on
matters of fact, but could only review the interpretation and
application of substantive and procedural legal provisions. However,
an appellant could still challenge the established facts by raising
“an additional and well-founded cassation argument” that
they had been determined by the lower courts in breach of procedural
norms (see paragraphs 15-17 and 24 above).
- The
Court notes that, in her cassation claim, the applicant requested a
review of the circumstances of her case. However, she did not specify
the procedural shortcomings which allegedly resulted in a wrong
assessment by the appellate court of the facts of the case (see
paragraph 11 above). In these circumstances, the Supreme Court,
lacking the necessary competence either to examine whether the
disputed appellate decision was factually well founded or to
take new evidence, legitimately refused to inquire into the factual
circumstances of the case and, instead, endorsed the appellate
court's determination under Article 407 of the CCP. Reviewing the
validity of the lower court's legal reasoning only, pursuant to
Article 404 § 1 of the CCP, the cassation court ruled on the
applicability and mode of calculation of the limitation period in
accordance with Articles 129 § 1 and 130 of the CC.
- In
so far as the issue of time-bar limitation had already been subject
to examination at an oral hearing before the appellate court, the
applicant's right to another hearing on
the same issue could, having due regard to the nature of the
cassation proceedings in question, be outweighed by other legitimate
considerations (see Ekbatani v. Sweden, judgment of 26 May
1988, Series A no. 134, p. 14, § 31;
Helmers, cited above, § 36). In this connection, the
Court accepts the Government's reference to the demands of diligence
and economy.
- Furthermore,
the Court considers that, given the issue to be decided, the Supreme
Court of Georgia was fully capable of properly reviewing the lower
court's interpretation of the pertinent legal provisions on the sole
basis of the parties' written submissions and other materials in the
case file. It notes that legal arguments, as well as those relating
to technical factual matters, may be presented just as effectively in
writing rather than orally (see, for example, Pursiheimo v.
Finland (dec.), no. 57795/00, 25 November 2003; Döry
v. Sweden, no. 28394/95, § 37, 12 November 2002; Sutter
v. Switzerland, judgment of 22 February 1984, Series A
no. 74, § 30; Coorplan-Jenni GmbH and Hascic v.
Austria, no. 10523/02, § 63, 27 July 2006;
Salomonsson v. Sweden, no. 38978/97, § 39, 12 November
2002; Göç v. Turkey [GC], no. 36590/97, § 51,
ECHR 2002-V).
- Moreover,
the Court attaches special significance to the fact that, in the
present case, the absence of an oral hearing did not undermine the
applicant's right to adversarial proceedings, a matter undisputed by
the applicant (cf., a contrario, Larin and Larina v.
Russia, no. 74286/01, §§ 40, 50 in
fine et 53, 7 June 2007). In particular, the Court notes
that the respondent did not submit any reply to the applicant's
cassation claim (see paragraph 12 in fine above). The latter,
therefore, cannot claim that the absence of an oral hearing stripped
her of the possibility to obtain knowledge of and, if necessary,
comment on the other party's submissions before the delivery of a
final judgment (see, a contrario, Lobo Machado v.
Portugal, judgment of 20 February 1996, Reports of Judgments
and Decisions 1996 I, § 31; Vermeulen v.
Belgium, judgment of 20 February 1996, Reports 1996 I,
§ 33; Fretté v. France, no. 36515/97,
§ 47, ECHR 2002 I).
- Finally,
the Court notes that the applicant was not caught unaware by the
Supreme Court's decision to dispense, in the course of the cassation
proceedings, with an oral hearing, as it had been duly announced to
her prior to the examination of the case (see paragraph 12 above).
- In
sum, there is nothing in the case file suggesting that the written
procedure offered to the applicant by the Supreme Court of Georgia in
lieu of an oral hearing either lacked transparency or disclosed other
reasonable grounds to doubt its fairness (see Rizhamadze v.
Georgia, no. 2745/03, §§ 41-43, 31 July
2007).
- In
the light of the above considerations, the Court concludes that the
absence of an oral hearing before the cassation court did not amount
to a violation of Article 6 § 1 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the absence of
an oral hearing before the Supreme Court admissible and the remainder
of the application inadmissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention.
Done in English, and notified in writing on 13 November 2007,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
