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SECOND
SECTION
CASE OF MOTION PICTURES GUARANTORS LTD v. SERBIA
(Application
no. 28353/06)
JUDGMENT
STRASBOURG
8 June
2010
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 Motion Pictures
Guarantors Ltd v. Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
Dragoljub Popović,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 28353/06) against Serbia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Motion Pictures Guarantors Ltd, a company based
in Canada (“the applicant”), on 13 July 2006.
- The
applicant was represented before the Court by Mr P. SamardZija, Mr S.
Popović, Ms K. Kostić and Ms L. Tomasović, all lawyers
practising in Belgrade. The Serbian Government (“the
Government”) were represented by their Agent, Mr S. Carić.
- The
applicant complained that it had been denied a fair and public
hearing in the proceedings concerning its request for procedural
reinstatement.
- On
30 March 2009 the Court decided to communicate the application to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it was also decided that the merits of the application
would be examined together with its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
27 February 1995 the applicant filed a civil claim with the
Commercial Court (Trgovinski sud) in Belgrade, seeking payment
of 34,975 Euros by its former business partners.
- Following
three remittals, the Commercial Court scheduled the next hearing for
13 September 2005 at 11 a.m.
- On
the morning in question, the applicant's lawyer was on unrelated
business at the Third Municipal Court (Treći
opštinski sud) in Belgrade. The applicant maintains that
at 10.30 a.m. his lawyer took a taxi in order to reach the Commercial
Court as soon as possible. Some 700 meters before its destination,
however, the taxi broke down and the applicant's lawyer had to
continue on foot. He ultimately arrived in court at 11.04 p.m., just
in time to see the judge finish the dictation of the minutes in the
applicant's case to his secretary. One of the lawyers acting on
behalf of the respondents was also present.
- On
an unspecified date thereafter the applicant received the Commercial
Court's decision (rešenje) dated 13 September 2005,
wherein it was stated that neither party had duly appeared before the
court, which is why the proceedings had to be terminated (see
paragraph 18 below).
- On
19 September 2005 the applicant requested procedural reinstatement,
i.e. restoration of proceedings to status quo ante (see
paragraph 16 below). It explained why its lawyer had been late and
proposed that the taxi driver, as well as the respondents' counsel,
be heard.
- On
26 September 2005, in the absence of an oral hearing, the Commercial
Court rejected the applicant's request (doneo rešenje kojim
se odbija predlog), stating that procedural reinstatement could
only be granted in a case of force majeure. Moreover, the
applicant's lawyer should have acted with greater diligence and left
the Third Municipal Court fifteen minutes earlier, which would even
have allowed him, after the taxi broke down, to reach the Commercial
Court on foot in time for the scheduled hearing.
- On
3 October 2005 and 7 November 2005 the applicant appealed against the
Commercial Court's decisions of 13 September 2005 and 26 September
2005, respectively.
- On
19 December 2005 the High Commercial Court (Viši
trgovinski sud), in the absence of an oral hearing, rejected both
appeals. In so doing, it upheld the reasoning of the Commercial
Court, added that the applicant had not provided relevant evidence to
the effect that the taxi had indeed broken down, and noted that, in
any event, “a vehicle defect could not be proved by means of
witness testimony” but rather by documentary evidence such as
repair receipts.
- The
applicant received this decision on 26 January 2006.
- On
23 April 2009, in response to the Agent's request, Beotaxi, an
association of taxi drivers, explained that, given the usual traffic
congestion and the location, a replacement taxi would not have been a
viable option for the applicant's lawyer. In any event, the
Commercial Court was some 700 metres away, which is why it would have
taken their client some 5-7 minutes on foot to reach his destination.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Relevant provisions of the Civil Procedure Act 2004
(Zakon o parničnom postupku; published in the Official Gazette
of the Republic of Serbia no. 125/04)
- Article
111 provides, inter alia, that a party who has suffered
adverse procedural consequences as a result of a failure to appear at
a scheduled hearing shall have the right to file a request for
procedural reinstatement, which, if accepted by the trial court as
“justified” (kad postoje opravdani razlozi), shall
lead to the restoration of proceedings to the status quo ante.
- Article
115 §§ 3 and 4 provides that the court shall rule in
respect of this request in the absence of an oral hearing, unless one
is needed for the “adequate establishment of facts”.
- Article
296 § 2 provides that, should both parties unjustifiably fail to
appear at the main hearing, the plaintiff's “claim shall be
deemed to have been withdrawn” and the proceedings shall be
terminated.
- Articles
385 § 1 and 388 provide that a party whose request for
procedural reinstatement has been rejected shall have the right to
file an appeal to a higher court, but shall not be entitled to an
oral hearing before it.
- Articles
360-363, 373 and 388 provide that the appeals court shall have the
competence to examine both legal and factual issues and, in so doing,
uphold the impugned judgment, overturn or quash it, and order that
the matter be re-examined at first instance.
- Article
422.10 provides that a case may be re-opened if the European Court of
Human Rights has in the meantime rendered a judgment in respect of
Serbia concerning the same or a similar legal issue.
B. Relevant domestic case-law as summarised by the
Government
- On
27 December 1999 the High Commercial Court in Belgrade held that a
usual traffic jam cannot be reason enough to accept the request for
procedural reinstatement in a situation where the plaintiff's lawyer
had failed to appear at a scheduled hearing (PZ. 6786/99).
- On
3 September 2002 the same court held that a procedural reinstatement
request should be granted in a case where the plaintiff's lawyer,
having taken into account the usual traffic and left his office in
time, had arrived late at a scheduled hearing since his car had
broken down (see PZ. 4191/02).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- Under
Article 6 § 1 of the Convention the applicant complained that it
had been denied a fair and public hearing in the proceedings
concerning its request for procedural reinstatement.
- Article
6 § 1 of the Convention, in so far as relevant, reads as
follows:
“In the determination of his [or her] civil rights
and obligations ... everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Admissibility
- In
the Court's view, although the Government have not raised an
objection as to the Court's competence ratione materiae, the
applicability of Article 6 § 1 nevertheless calls for its
consideration (see, mutatis mutandis, Blečić v.
Croatia [GC], no. 59532/00, § 67, ECHR 2006-...). The Court,
therefore, observes that the impugned proceedings were directly
decisive for the applicant's ability to have determined by a tribunal
the merits of his civil claim and, as such, fall within the scope of
Article 6 § 1 of the Convention (see O. and A.K. v. Austria,
no. 13202/87, Commission decision of 15 March 1990; Gorou v.
Greece (no. 2) [GC], no. 12686/03, § 27, ECHR 2009 ...).
- The
Court further notes that the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention and that it is not inadmissible on any other ground. It
must therefore be declared admissible.
B. Merits
1. As regards the absence of a public hearing
(a) The parties' submissions
- The
Government recalled that Article 6 § 1 of the Convention does
not contain an absolute requirement to hold a hearing irrespective of
the specific circumstances of a given matter. In particular, the
central question in the present case was whether the applicant's
lawyer had left the Third Municipal Court in time to reach the
Commercial Court by 11.00 a.m. on the date in question. Since the
distances between the courts at issue, as well as the usual traffic
conditions in Belgrade, were well-known to everyone there was clearly
no need for a hearing to address the matter, or a need to hear the
witnesses proposed by the applicant in this respect. The Government
thus fully endorsed the reasoning of the domestic courts, adding that
the applicant's lawyer had worked in a law firm with several other
colleagues who could also have replaced him in the event of a tight
schedule.
- The
applicant reaffirmed its complaint.
(b) The Court's assessment
- The
Court first notes that that the entitlement to a “public
hearing” in Article 6 § 1 implies a right to an oral,
adversarial hearing. Indeed, such a hearing constitutes a fundamental
principle enshrined in this provision (see Jussila v. Finland
[GC], no. 73053/01, § 40, ECHR 2006 XIII). However, the
obligation under Article 6 § 1 to hold a public hearing is not
an absolute one. Thus, it may be dispensed with if a party
unequivocally waives his or her right thereto and there are no
questions of public interest making a hearing necessary (see, among
other authorities, Håkansson and Sturesson v. Sweden,
judgment of 21 February 1990, Series A no. 171-A, p. 20, §
66; Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993,
Series A no. 263, pp. 19-20, § 58; Lundevall v. Sweden,
no. 38629/97, § 34, 12 November 2002).
- A
hearing may not be necessary due to the exceptional circumstances of
the case, for example when it 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; Lundevall v. Sweden, cited above, §
34).
- It
is further recalled that, in proceedings before a court of first and
only instance, there is normally a right to a hearing (see, among
other authorities, Håkansson and Sturesson v. Sweden,
judgment cited above, p. 20, § 64). However, the absence of
a hearing before a second or third instance may be justified by the
special features of the proceedings at issue, provided a hearing has
been held at first instance (see, for instance, Helmers v. Sweden,
judgment of 29 October 1991, Series A no. 212-A, p. 16, §
36). Accordingly, unless there are exceptional circumstances that
justify dispensing with a hearing, the right to a public hearing
under Article 6 § 1 implies a right to an oral, adversarial
hearing before at least one instance (see Lundevall v. Sweden,
cited above, § 36).
- Turning
to the present case, the Court firstly notes that the main issue in
the impugned proceedings had been whether the lawyer's late
appearance at the scheduled hearing before the Commercial Court could
be deemed “justified”, within the meaning of Article 111
of the Civil Procedure Act (see paragraph 16 above).
- Secondly,
given the relevant domestic case-law, it would appear that a vehicle
breakdown could, depending on the circumstances, be deemed a
plausible reason for granting procedural reinstatement (see paragraph
23 above).
- Thirdly,
while the distances between the courts at issue may have been
well-known to everyone, the specific traffic conditions on the day in
question, including the circumstances concerning the breakdown, were
not; they thus had to be ascertained, including by means of hearing
the taxi driver in person.
- Lastly,
even though the applicant had specifically proposed an oral hearing,
no such hearing was held at first or second instance, it being in the
Commercial Court's absolute discretion as to whether to hold one,
whilst the High Commercial Court could not have done so in view of
the applicable domestic legislation (see paragraphs 17 and 19 above).
- Having
regard to the foregoing, without comment as to what the actual
outcome of the applicant's request for procedural reinstatement
should have been (see, mutatis mutandis, Garcia Ruiz v.
Spain [GC], no. 30544/96, § 28, ECHR 1999- I), the
Court cannot find that in the specific circumstances of the present
case there were any exceptional elements which could justify the
domestic court's failure to hold a public, adversarial hearing. There
has accordingly been a violation of Article 6 § 1 of the
Convention.
2. As regards fairness
- Having
regard to its finding of a violation of Article 6 § 1 of the
Convention in respect of the applicant's “right to a public
hearing”, the Court considers that it is not necessary to
examine separately whether, in this case, there has also been a
breach of Article 6 § 1 concerning the fairness of the
proceedings in question (see, among others, Emmer-Reissig v.
Austria, no. 11032/04, §§ 30-33, 10 May 2007).
II. 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
applicant did not specify its claim in this respect. Accordingly, the
Court makes no award under this head. The Court, however, notes that
the applicant may chose to make use of Article
422.10 of the Civil Procedure Act (see paragraph 21 above; see also,
mutatis mutandis,
Vinčić and Others v. Serbia, nos.
44698/06, 44700/06, 44722/06, 44725/06, 49388/06, 50034/06,
694/07, 757/07, 758/07, 3326/07, 3330/07, 5062/07, 8130/07, 9143/07,
9262/07, 9986/07, 11197/07, 11711/07, 13995/07, 14022/07, 20378/07,
20379/07, 20380/07, 20515/07, 23971/07, 50608/07, 50617/07, 4022/08,
4021/08, 29758/07 and 45249/07, § 61,
1 December 2009).
B. Costs and expenses
- The
applicant claimed EUR 540 for the costs and expenses incurred before
the domestic courts, as well as EUR 1,350 for those incurred before
the Court.
- The
Government contested these claims.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
also reasonable as to their quantum. In the present case, regard
being had to the documents in its possession and the above criteria,
the Court considers it reasonable to award the sum of EUR 1,000
covering costs under all heads.
C. Default interest
- The
Court considers it appropriate that the default interest 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
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as regards the absence of a public
hearing;
- Holds that there is no need to examine
separately the applicant's further complaint under Article 6 § 1
of the Convention;
- 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, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable to it, in
respect of costs and expenses, to be converted into Serbian Dinars at
the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 8 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
