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SECOND
SECTION
CASE OF GOGOLADZE v. GEORGIA
(Application
no. 4683/03)
JUDGMENT
STRASBOURG
11
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 Gogoladze v. Georgia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr I.
Cabral Barreto,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Mrs A. Mularoni,
Mrs D. Jočienė,
judges,
and Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 20 November 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 4683/03) 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 Nunu Gogoladze, a Georgian national, on
17 January 2003. She was represented by Ms L. Mukhashavria
and Mr V. Vakhtangidze, lawyers practising in Tbilisi.
- The
Georgian Government (“the Government”) were represented
by their Agent, Ms I. Bartaia of the Ministry of Justice.
- On
27 January 2006 the Court decided to communicate to the Government
the 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 the
admissibility and merits of the application (Rule 54A of the Rules of
Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1954 and lives in Tbilisi. She worked as a
technician in a State company specialising in the production of
jewellery.
- By an administrative order of 1 August 2001, the
company dismissed the applicant on account of her unauthorised
absence on 26 July 2001, coupled with the fact that a disciplinary
reprimand for professional negligence had been already been imposed
on her on 9 July 2001. In response, the applicant sued the company
for unlawful dismissal.
- At
a hearing on 11 October 2001, which was not attended by the
respondent company, the Didube-Chughureti District Court in Tbilisi
found in the applicant's favour by default.
- In
an interlocutory appeal dated 18 October 2001, the respondent company
complained that the summons had not been served on its representative
and requested that the default judgment of 11 October 2001 be
annulled.
- On
22 October 2001 the Didube-Chughureti District Court, dispensing with
an oral hearing, acknowledged its failure to serve the summons on the
respondent company's representative, annulled the default judgment of
11 October 2001 and scheduled another hearing on the merits.
- On
3 December 2001 at an oral hearing the Didube-Chughureti District
Court dismissed the applicant's claim. The court found it established
that on 26 July 2001 she had been absent from work without leave.
Taking into account the fact that she had received a previous
disciplinary sanction, the court concluded that the dismissal was in
compliance with Article 34 § 1 (g) of the Labour Code (“the
LC”).
- In
an appellate decision of 6 March 2002, the Tbilisi Regional Court,
noting that the first instance court had fully established the
circumstances of the case and correctly applied the law, upheld the
judgment of 3 December 2001. The decision was based on both parties'
written and oral submissions.
- On
4 June 2002 the applicant lodged a cassation claim. She complained
that the respondent company's representative had not had an
appropriate power of attorney at first instance. She further
complained that the Didube-Chughureti District Court had set aide the
default judgment of 11 October 2001 without holding an oral hearing.
Finally, she challenged the lower courts' reading of the LC and
claimed that the disciplinary reprimand of 9 July 2001 had been
arbitrarily imposed on her.
- On
17 June 2002 the Supreme Court of Georgia decided to declare the
cassation claim admissible and to dispense with an oral hearing on
the merits under Article 408 § 3 of the Code of Civil Procedure
(“CCP”). This decision was communicated on the same day
to both parties; the respondent company was served with a copy of the
applicant's cassation claim as well.
- On
24 June 2002 the applicant requested the Supreme Court to reconsider
its decision regarding an oral hearing. She stated that her oral
pleadings, bearing on some particularly technical issues concerning
jewellery production, could better demonstrate that the earlier
disciplinary reprimand of 9 June 2001 had been wrongly imposed.
- On
2 July 2002 the respondent company filed submissions in reply to the
applicant's cassation claim. This reply, addressing only the factual
circumstances of the case, was not communicated to the applicant.
- On
8 July 2002 the applicant maintained before the Supreme Court her
request for an oral hearing.
- On
19 July 2002 the Supreme Court, dispensing with a hearing, dismissed
the applicant's cassation claim and upheld the appellate decision of
6 March 2002. It reasoned that the applicant lacked standing to
challenge the authority of the respondent company's representative,
this prerogative being reserved to the company itself. In any case,
the complaint was ill founded, as the case file disclosed a copy
of a duly completed letter of authority.
As
regards the first instance court decision to set aside the default
judgment without holding a hearing, the Supreme Court acknowledged
that it constituted a procedural breach. That breach, however, did
not justify cassation, as it could not be said to have resulted in an
erroneous decision within the meaning of Article 393 § 3 of the
CCP. Even if an oral hearing had been held, the failure to serve the
summons on the respondent company would still have been a legitimate
ground for setting aside the default judgment of 11 October 2001. As
to the complaint about the earlier reprimand, the Supreme Court
refused to hear it since it went beyond the subject of the present
dispute – the lawfulness of the dismissal on 1 August 2001
– and had never been raised by the applicant either before the
first instance or the appellate courts.
- In
the decision of 19 July 2002, the Supreme Court did not take into
account any of the arguments contained in the respondent company's
submissions of 2 July 2002; its reasoning solely addressed the issues
raised in the applicant's cassation claim. The decision was
communicated to both parties on 26 July 2002.
II. RELEVANT DOMESTIC LAW
19. The Labour
Code, in force at the material time
Under
Article 34 § 1 (g), an employee could be dismissed for taking
unauthorised leave, providing a previous disciplinary sanction had
already been imposed on him or her.
20. The Code of
Civil Procedure, as it stood at the material time
Article 83 § 1
“The parties have equal procedural rights. They
can consult the case file [and] make extracts from or copies of the
materials...”
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. Pursuant to Article 393 §
3, a procedural violation could be a ground for cassation only if it
had caused the delivery of an incorrect appellate decision.
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
400 stated that a copy of the cassation claim with all the supporting
documents should be forwarded to the adversary. The cassation court
could set a time-limit for the submission of a reply. The provision
remained silent, however, as to whether the adversary's reply should
also be transmitted to the appellant.
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.”
21. 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 matters of
fact and/or the incorrect interpretation and application of
substantive legal provisions.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 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 Supreme Court had failed to take account of some
important circumstances. The invoked provision, in its relevant part,
reads as follows:
“In the determination of his civil rights and
obligations..., everyone is entitled to a fair and public hearing...”
- The
Government submitted that, under Georgian law, the primary role of
the Supreme Court in cassation was to review the lawfulness of
appellate decisions. It was because of the 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 a case and was only called upon 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 could be justified by such legitimate considerations as the
right to a hearing within a reasonable time and the demands of
economy.
- The
Government contended that, in the present case, the Supreme Court 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. 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. 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. Moreover, the
applicant had been informed in advance of the decision to dispense
with an oral hearing.
- The
Government further submitted that the reason why the respondent
company's reply to the applicant's cassation claim had not been
communicated to her prior to the delivery of the final decision of
19 July 2002 was that Article 400 of the CCP did not oblige the
Supreme Court to do so. In any case, had the applicant wished to have
knowledge of the respondent company's submissions, she could have
consulted the case file pursuant to Article 83 § 1 of the CCP.
- In
the light of the foregoing, the Government argued that the absence of
an oral hearing before the Supreme Court could not be said to have
breached any of the safeguards of Article 6 § 1 of the
Convention.
- The
applicant replied that Article 408 § 3 of the CCP lacked clarity
and foreseeability, as it did not specify the circumstances under
which the cassation court could dispense with an oral hearing. She
further complained that the above provision did not oblige the
cassation court to give reasons for such a decision or provide for an
appeal. Moreover, none of the provisions of the
CCP obliged the cassation court to give notice of its decision to
dispense with an oral hearing prior to the delivery of a final
decision in the case. The alleged shortcomings of Article 408
§ 3 resulted in the Supreme Court's practice to dispense
with oral hearings in an arbitrary manner, as in her case.
- The
applicant further submitted that, as certain technical issues were
involved, an oral hearing where she could plead in person was
indispensable for the correct and fair examination of her case.
Moreover, had she been allowed to address orally the Supreme Court,
she could have shown better that the participation of the respondent
company's representative without proper authority was a grave
procedural violation and justified the quashing of the appellate
judgment. Finally, agreeing with the Government that the CCP did not
oblige the cassation court to forward the respondent's reply to the
appellant in cassation, she claimed that this “procedural
shortcoming”, coupled with the absence of a hearing, had
undermined her rights under Article 6 § 1 of the Convention.
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 to assess the relevance of evidence to the
issues in the case and to interpret and apply the 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). Insofar as the relevant domestic decisions do not disclose any
manifestly arbitrary reasoning, the Court considers 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
- 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 Court recalls that, in the case of Rizhamadze v. Georgia,
it has already found that the Georgian Supreme Court's power, derived
from Article 408 § 3 of the CCP, to dispense with an oral
hearing in cassation does not per se constitute a violation of
Article 6 § 1 of the Convention. This is justified by the
role of cassation proceedings in the respondent State, which is
essentially to address the points of law raised in a case, and the
fact that hearings as a rule take place before the lower instances
(see Rizhamadze v. Georgia, no. 2745/03, §§
35-39, 31 July 2007).
- As
to the circumstances of the present case, the Court notes that
hearings were held at the first two levels of jurisdiction.
Consequently, the Court agrees with the Government that the right to
an oral hearing in cassation could be outweighed by the demands of
diligence and economy (see, Rizhamadze, cited above, §
39). As to the applicant's arguments that her oral pleadings before
the cassation court were indispensable in order to clarify some
purely technical issues and prove that she had had standing to
challenge the authority of the respondent company's representative,
the Court reiterates that legal arguments, as well as those relating
to technical factual matters, may be presented 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).
- As
to the applicant's argument that the procedure under Article 408
§ 3 of the CCP fails the rule of law requirements, the
Court first recalls that the Convention system does not envisage a
mechanism for challenging legal provisions in abstracto, but
only in relation to the specific application of such laws to the
particular circumstances of an applicant's situation (see Brogan
and Others v. the United Kingdom, judgment of 29 November 1988,
Series A no. 145 B, p. 34, § 53). Moreover,
the Court notes that, by complaining that the Supreme Court did not
give reasons for its decision to dispense with an oral hearing, which
decisions could not be appealed, the applicant detaches the impugned
absence of a hearing in the cassation proceedings from the context of
her civil dispute as a whole, and instead challenges the fairness of
the procedures under Article 408 § 3 of the CCP in general.
However, the question of whether or not fair trial safeguards have
been met under Article 6 § 1 of the Convention can only be
answered by examining the specifically impugned judicial proceedings
as a whole (see H. v. France, judgment of 24 October 1989,
Series A no. 162 A, p. 23, § 61). Moreover, the
dispute over the appropriateness of an oral hearing is obviously not
a dispute about the applicant's “civil rights”. Nor could
its outcome be considered to be directly decisive for the examination
of the merits of the applicant's pecuniary action (see, a
contrario, Rizhamadze, cited above, § 24; 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 considers that, even if the absence of a hearing in cassation
does not in itself violate Article 6 § 1 of the Convention, a
problem may still arise if the applicant is able to prove that, as a
consequence, his or her right to adversarial proceedings and the
equality of arms was undermined (see, Rizhamadze, cited above,
§ 41). In the present case, the sole complaint in this regard is
that concerning the Supreme Court's omission to send the respondent
company's reply to the applicant (see paragraph 28 above).
- Indeed,
in so far as the respondent company had submitted a reply to the
applicant's cassation claim, the latter was, in principle, entitled
to obtain knowledge of it before the delivery of a final decision
(see, a contrario, Rizhamadze, cited above, § 42).
However, the applicant failed to show the eventual utility of such an
exchange. In particular, the Court observes that the relevant
provisions of the CCP do not entitle the parties to submit any
additional comments on each others' submissions, a matter undisputed
by the applicant. Consequently, if the applicant had had prior
knowledge of the respondent company's reply, she would not have been
able to submit to the Supreme Court any further arguments with a view
to influencing the forthcoming examination of her case.
- Nevertheless,
what is more important in the present case is that the Supreme Court
itself did not take into account any of the respondent company's
arguments when addressing the applicant's cassation claim (see
paragraph 18 above). Consequently, the applicant cannot validly argue
that, in the examination of her cassation claim under the written
procedure, she was in a weaker position compared to the respondent
company. Finally, since the applicant was not caught unaware by the
Supreme Court's decision to dispense with an oral hearing, of which
she had been duly informed prior to the examination of the case (see,
Rizhamadze, § 42), the Court agrees with the Government
that she could have exercised her right under Article 83 § 1 of
the CCP to consult the case file. In this way, she could have
obtained knowledge of all the materials in the case, including the
respondent company's submissions, if any, before the case was finally
decided.
- With
due regard to the above, the Court considers that even if, as a
matter of policy, it is preferable that the cassation court ensures
the full exchange of all the parties' submissions before the delivery
of a final decision, in the particular circumstances of the case at
hand the Supreme Court's omission to forward the respondent company's
reply to the applicant did not amount to a violation of the
principles of equality of arms and adversarial proceedings.
- In
sum, there is nothing in the case file suggesting that the written
procedure offered to the applicant by the Supreme Court in lieu of an
oral hearing discloses any reasonable grounds to cast doubt on its
overall fairness. Consequently, the Court concludes that the absence
of an oral hearing before the cassation court did not constitute 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 in cassation 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 1 1December 2007, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
S. Dollé F. Tulkens
Registrar President
