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SECOND
SECTION
CASE OF RIZHAMADZE v. GEORGIA
(Application
no. 2745/03)
JUDGMENT
STRASBOURG
31
July 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 Rizhamadze 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 R. Türmen,
Mr M.
Ugrekhelidze,
Mr V. Zagrebelsky,
Mr D. Popović,
judges,
and Mrs F. Elens-Passos, Deputy Section
Registrar,
Having
deliberated in private on 10 July 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 2745/03) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Avtandil Rizhamadze, a Georgian
national, on 10 May 2002. He was represented by Ms N. Kashibadze.
- The
Georgian Government (“the Government”) were represented
by their Agent, Ms I. Bartaia of the Ministry of Justice.
- On
14 October 2005 the Court decided to communicate to the Government
the complaint concerning the absence of an oral hearing in cassation
proceedings. 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 filed their observations on the admissibility and merits
of the application (Rule 54A of the Rules of Court). The applicant
did not produce any observations in reply. On 15 June 2006, however,
he reiterated his intention to pursue the proceedings.
- On
29 June 2006 the Court decided to proceed with the examination of the
application on the basis of the existing case file.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1970 and lives in Tbilisi.
- The
applicant worked as an officer at a regional branch of the Customs
Department (hereafter “the old customs office” of “the
Department”), an agency of the Ministry of Finance. Due
to the structural reorganisation of the Department on 30 June 1995,
he was released by an administrative order of 5 August 1995, together
with some other people. This order noted that the discharged officers
were to be transferred to another, newly established regional customs
office (“the new customs office”).
- On
5 August 1995 the applicant requested the Department's authorisation
to take up his duties at the new customs office. No reply was
forthcoming. For the next six years, he complained on numerous
occasions before various governmental agencies about the inability to
continue his service.
- In
a letter of 21 March 2001, the Department informed the applicant
that, after its reorganisation on 30 June 1995, staff had been
significantly reduced and, in so far as he had continuously been
absent from the old customs office without authorisation, the
administration had decided not to employ him any longer. The
lawfulness of such a decision, the letter noted, was assured by the
provisions of the Labour Code (“the LC”), the sole
legislative act which regulated civil servants' labour disputes at
that time. The applicant was invited to visit the Department's human
resources office, in order to obtain the order for his dismissal and
the work log.
- On
23 May 2001 the applicant sued the Department for unfair dismissal,
requesting reinstatement to his position and compensation for loss of
salary.
- In
a first instance judgment of 22 November 2001, the Isani-Samgori
District Court in Tbilisi found in the applicant's favour. However,
in an appellate decision of 15 April 2002, the Tbilisi Regional Court
rejected his action as time-barred. The appellate court first noted
that, in so far as the Civil Service Act of 31 October 1997 had not
been enacted at the time of the applicant's dismissal, only the
provisions of the LC had been applicable to the dispute. Given the
fact that the applicant had continuously been complaining before
various authorities, except for the courts, about his inability to
pursue his duties as a customs officer, the appellate court found
that he had been well aware of the alleged breach of his rights since
his dismissal took effect in 1995. In such circumstances, it
concluded that the applicant had failed to comply with the one-month
time-limit for lodging an employment action, as required by Article
204 § 1 of the LC.
- In
May 2002 the applicant lodged a cassation claim, in which he called
into question the appellate court's assessment of the circumstances
of the case and certain evidence. It appears from the case file that
the respondent Department did not submit any reply to that claim.
- On
12 June 2002 the Civil Affairs Chamber of the Supreme Court of
Georgia (“the Chamber”) at an oral hearing attended by
the applicant, started the examination of the case but, due to the
absence of the Department's representative, adjourned it. The Chamber
also decided to dispense with an oral hearing in the further
proceedings.
- On
13 June 2002 the applicant, complaining about the absence of an oral
hearing, requested the President of the Supreme Court to change the
Chamber's composition. In a decision of 18 June 2002, the Chamber
dismissed this request as unsubstantiated.
- In
a decision of 19 June 2002, adopted under the written procedure, the
Chamber dismissed the applicant's cassation claim. Having confirmed
the appellate court's interpretation of the LC, it stated that it
lacked jurisdiction to inquire into matters of fact, in so far as the
applicant had not raised any “additional and well-founded
cassation argument” (Article 407 § 2 of the Code
of Civil Procedure).
II. RELEVANT DOMESTIC LAW AND PRACTICE
16. The Code of
Civil Procedure (“the CCP”), 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 a cassation claim. The
disputed judgment could be found to be unlawful if the appellate
court had wrongly applied or interpreted legislative provisions.
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 not
only substantive but also 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.”
17. 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 applicant's 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 411 §§
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.
18. 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.”
19. Legislation
regulating labour relations at the material time
(a) The Labour Code of 27 June 1973 (“the LC”)
The
LC regulated all types of private labour relations between employers,
employees and labour unions. Pursuant to Article 1 § 2, pending
the adoption of the Civil Service Act, the LC was fully applicable to
the civil service.
Pursuant
to Article 203 § 1 of the LC, the dismissed employee had the
right to apply to a court with a reinstatement claim. Under Article
204 § 1 of the LC, the limitation period for lodging such a
claim was one month and it started to run from the moment the
employee concerned received the relevant order of dismissal.
(b) The Civil Service Act
The
Civil Service Act was enacted on 31 October 1997 and became the lex
specialis with regard to civil servants' relations with the
State, including labour disputes. The Act did not have retroactive
force.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the Supreme Court had dispensed with an
oral hearing of his cassation claim. He called into question the
outcome of the domestic proceedings, claiming that the domestic
courts had incorrectly assessed certain evidence and the
circumstances of the case. The applicant invoked Article 6 § 1
of the Convention, which, 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
...”
A. Admissibility
1. As to the complaint about the outcome of the 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).
Insofar 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 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 absence of an oral hearing
(a) The parties' submissions
- The
Government submitted that the applicant, as a customs officer,
occupied a position involving participation in the exercise of the
State's sovereign power conferred by public law. Noting further that
the proceedings in question represented an employment dispute between
the applicant and a State agency of which the applicant was a part,
the Government contended that Article 6 § 1 of the Convention
was not applicable to this case (Pellegrin v. France
[GC], no. 28541/95, §§ 64-67, ECHR 1999 VIII).
- The
applicant did not reply to this objection (see paragraphs 4 and
5 above).
(b) The Court's assessment
- The
Court notes at the outset that the proceedings before the Supreme
Court, bearing on the applicant's compliance with the statutory
limitation period, did not constitute a dispute over the applicant's
“civil rights” as such. However, their outcome was
directly decisive for the examination of the merits of the
applicant's action concerning his labour rights and the resulting
pecuniary claim (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).
- As
to the Government's objection concerning the incompatibility of the
complaint on account of the applicant's position as a civil servant,
the Court recalls that its Grand Chamber has recently adjusted the
“functional criterion” which has been relied on since the
aforementioned Pellegrin judgment (see Vilho Eskelinen and
Others v. Finland, no. 63235/00, §§ 50 56, 19
April 2007). Accordingly, the presumption is now that Article 6
§ 1 of the Convention applies to civil servants' ordinary
labour disputes. The mere fact that the applicant, by virtue of his
or her public office, participates in the exercise of the State's
sovereign power is no longer decisive (ibid. § 62).
- Instead
of the “functional criterion” of the Pellegrin case,
there is now a two-tier test. Thus, in order for the respondent State
to be able to plead an exception from the protection embodied in
Article 6 § 1 of the Convention which, as a rule, is enjoyed by
every civil servant, the respondent Government must show, first, that
the bar on access to a court for the post in question has been
explicitly prescribed by domestic law. Once this “lawfulness”
requirement is fulfilled, the respondent Government must then
demonstrate the existence of an objective State interest, independent
from that of “a special bond of trust and loyalty”
between the official and the State, which justifies the limitation on
the right to a court (see Vilho Eskelinen and Others, cited
above, §§ 61 and 62).
- In
the present case it is a common ground between the parties that the
applicant had access to a domestic court. He was not precluded by the
domestic law from suing the State for his dismissal and, moreover,
the domestic courts explicitly acknowledged that, at the material
time, it was through the provisions of the Labour Code, regulating
private law employment disputes, that the applicant should have
sought redress (see paragraphs 11, 15 and 19 above). In other words,
the applicant as a civil servant was placed by the national
authorities on the same footing as any other private law employee.
- In
these circumstances, and in view of the principle
of subsidiarity inherent in the machinery of the Convention, the
Court cannot take the place of the competent national
authorities and assume that the State was immune from civil liability
vis-à-vis the applicant, in respect of his claim for unfair
dismissal and loss of salary (see Vilho Eskelinen and Others,
cited above, §§ 61 and 62). Consequently, the Government's
objection is rejected.
- The
Court finds therefore that Article 6 § 1 applies to this
dispute. No other grounds for declaring this part of the application
inadmissible have been established. The Court therefore declares it
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 the case, except for those which had been specifically
referred to in the cassation claim to demonstrate the alleged
breaches of procedural law. In the event that the Supreme Court found
that the factual circumstances of a case had been established by the
appellate court in the face of procedural violations and,
consequently, an additional examination of evidence was 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 view, 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
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 his cassation claim. The cassation
court was not even called on to assess the facts relating to
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. 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 could not be said to have
breached any of the guarantees of a fair hearing.
- The
applicant did not reply to the Government's arguments (see paragraphs
4 and 5 above).
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 an oral hearing is not an absolute one. Thus, the absence of
such a 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 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)
- As
regards the Supreme Court of Georgia when sitting in cassation, the
Court observes that its role was primarily to examine the lawfulness
of the 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 16-18 and 30-32
above).
- The
Court notes that, in his cassation claim, the present applicant
requested a review of the circumstances of his case. However, he did
not specify the procedural shortcomings of the appellate court's
factual assessment of his situation (see paragraph 12 above). In
these circumstances, the Court observes that the Supreme Court,
lacking the necessary competence either to examine whether the
disputed decision was factually well-founded or to take new evidence,
legitimately refused to inquire into the circumstances of the case
and instead endorsed the appellate court's determination under
Article 407 of the CCP. Reviewing the validity of the appellate
court's legal reasoning only (Article 404 § 1 of the CCP), the
cassation court ruled on the applicability and mode of calculation of
the limitation period in accordance with Article 204 § 1 of the
LC.
- In
so far as the issue of the limitation period had already been subject
to examination at an oral hearing by the appellate court, the
applicant's right to another hearing on the same issue may reasonably
be considered to have been less important. Consequently, in view of
the nature of the cassation proceedings in question, this right
could, in principle, 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.
- The
Court considers that, given the issue to be decided, the Supreme
Court 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. 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).
- Furthermore,
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.
- Having
regard to the materials in its possession, the Court notes that the
Department did not submit any reply to the applicant's cassation
claim. The latter, therefore, cannot claim that the absence of an
oral hearing stripped him 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 attaches importance to the fact 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 him prior to the examination of the
case (see paragraph 13 above).
- 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 either lacked transparency or disclosed other reasonable
grounds to doubt its fairness.
- 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.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 10 of the Convention that, by
dispensing with an oral hearing, the Supreme Court had limited his
right to freedom of expression. Invoking Article 13 of the
Convention, he claimed that the domestic judicial proceedings, in
view of their alleged unfairness, did not constitute “an
effective remedy”.
- However,
the Court considers that, in the light of its findings above (see
paragraphs 43-44 above), after a thorough examination of the case
under Article 6 § 1 of the Convention, that these complaint do
not require a separate examination.
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 31 July 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
F. Elens-Passos F.
Tulkens
Deputy
Registrar President
