European Court of Human Rights

 

 

 

SECOND SECTION

 

 

 

 

 

 

 

CASE OF PÖNKÄ v. ESTONIA

 

(Application no. 64160/11)

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

STRASBOURG

 

8 November 2016

 

 

 

 

 

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 Pönkä v. Estonia,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Işıl Karakaş, President,
          Julia Laffranque,
          Nebojša Vučinić,
          Paul Lemmens,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 27 September 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 64160/11) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Finnish national, Mr Markus Pasi Pönkä (“the applicant”), on 10 October 2011.

2.  The applicant was represented by Mr A. Niemi, a lawyer practising in Lahti, Finland. The Estonian Government (“the Government”) were represented by their Agent, Mrs M. Kuurberg.

3.  The applicant complained under Article 6 § 1 of the Convention that he had not received a fair civil trial owing to the lack of an oral hearing.

4.  On 10 April 2014 the applicant’s complaint was communicated to the Government.

5.  The Finnish Government, having been informed by the Registrar of their right to intervene (Article 36 § 1 of the Convention), indicated that they did not intend to do so.

THE FACTS

I.  THE CIRCUMSTANCES OF THE CASE

6.  The applicant was born in 1987 and lives in Helsinki, Finland.

7.  On 19 February 2007 the Harju County Court in Estonia convicted the applicant of murder. In the criminal proceedings T. was heard as a witness. In its judgment the domestic court dismissed the applicant’s argument that he had shot the victim in self-defence. The applicant was subsequently transferred to Finland to serve his prison sentence.

8.  On 11 December 2008 V., the owner of the apartment where the applicant had committed the crime brought a civil action against the applicant before the Harju County Court. He claimed compensation for damage caused as a consequence of the offence (damaged chair which had been hit by the bullet, damaged or lost belongings (mostly various items used to wrap parts of the victim’s cut up body), damaged flooring after the police had cut out a piece of parquet with a bullet mark to serve as evidence, a lock cylinder removed for evidence, cleaning bills, unpaid utility bills) in the amount of 28,259 kroons (EEK) (corresponding to approximately 1,806 euros (EUR)). The plaintiff submitted to the court documentary evidence (material from the criminal case, photos, invoices, inventory list of the apartment attached to the contract between V. and the victim) in support of his claims.

9.  On 14 January 2009 the County Court ruled that the action was accepted for proceedings and that the case was to be dealt with in simplified proceedings (lihtsustatud menetlus) under Article 405 § 1 of the Code of Civil Procedure (CCP) (Tsiviilkohtumenetluse seadustik). It also explained to the parties that if they wished to be heard, they would have to notify the court within fifteen days of the date of receiving the decision. The applicant was asked to provide the court with a written reply to the action.

10.  On 8 April 2009 the applicant informed the County Court in writing that he did not object to accepting the action for proceedings but he contested the claim, arguing that he had not damaged or destroyed the items in question. He further contended that he had not committed murder but had shot the victim in self-defence; in so far as the alleged damage related to the collection of evidence, it had been caused by the police; the claims were unsubstantiated in part. He requested examination of the case at a court hearing and asked that he and two witnesses (T. and K. - Estonian and Finnish forensic experts) be summoned and questioned in court. He stated that he wished to explain that he had not caused the damage and had acted in self-defence. As to the witnesses, he also wished them to give evidence about his acting in self-defence.

11.  On 7 May 2009 plaintiff V. replied in writing to the applicant’s submissions, stating that he did not deem it necessary for the applicant to be present in person at the court hearing. He asked the court to dismiss the applicant’s request for the summoning of witnesses, as these individuals would be unable to give testimony about the items in the apartment or their value, and their statements could not refute the findings of a final court decision. He also submitted additional evidence to the court (a photo of one of the items in question; a bank statement about the payment of utility bills; price lists to prove the cost of another damaged item and the cost of cleaning services).

12.  On 8 July 2010 the County Court ruled that the case was to be examined in written proceedings (kirjalik menetlus) under Article 404 of the CCP. The court noted the plaintiff’s agreement to the case being examined in written proceedings and that the applicant wished to be heard. It then went on to explain that under Article 404 of the CCP a written procedure could be applied when the amount of the claim was under 50,000 kroons (EUR 3,196) and a party’s appearance in court was significantly hindered by a long distance or for any other good reason. It gave the parties a thirty-day time-limit from the date of receipt of the decision for making any written submissions. No appeal lay against this decision.

13.  No submissions were made to the court within the thirty-day time limit.

14.  By a judgment of 3 December 2010 the County Court adjudicated the case in simplified and written proceedings. The court noted in its judgment that it had also examined the material pertinent to the related criminal case and relied as documentary evidence on the statements made by T. in the criminal proceedings. Relying on the judgment in the criminal case, the County Court considered it established that the applicant had not acted in self-defence when he killed the victim. Based on the material of the criminal case as well as documentary evidence submitted by V., the County Court accepted V.’s claim in part, that is in the amount of EEK 22,337 (EUR 1,428, which amounted to 79% of the initial claim). The court found on the basis of the applicant’s submissions that accepting the claim was not justified in so far as it concerned the lock cylinder, unpaid utility bills and certain allegedly damaged items. It was noted in the judgment that an appeal lay to the Tallinn Court of Appeal and that the appeal could be examined in a written procedure unless examination at a court hearing had been requested in the appeal.

15.  On 22 December 2010 the applicant filed an appeal against the County Court’s judgment. He complained that, although he had requested an oral hearing before the County Court, no hearing had been held. He had therefore been deprived of an opportunity to be examined and to explain his position, according to which he had caused no unlawful damage to the plaintiff’s property. He relied on Article 6 § 1 of the Convention and also referred to persons whose examination he had requested. He challenged the County Court’s reliance on the criminal court’s judgment and claimed that in a civil case it should be possible to challenge facts established in a criminal case.

16.  On 7 January 2011 the Tallinn Court of Appeal refused to accept the applicant’s appeal. It noted that the County Court had examined the case in simplified proceedings (lihtmenetlus). In such circumstances, the Court of Appeal could only accept an appeal for examination if the County Court in its judgment had granted leave to appeal or a provision of substantive or procedural law had clearly been incorrectly applied or it was clear that the evidence had been wrongly assessed and this could have significantly influenced the court’s ruling. The County Court had not granted leave to appeal. The Court of Appeal did not find that in the case at hand it could be said that the County Court had clearly incorrectly applied a provision of substantive or procedural law or clearly wrongly assessed the evidence or breached the right to be heard (ärakuulamise õigus). The County Court had examined the matter under Article 405 § 1 of the CCP in simplified proceedings. Pursuant to Article 405 § 1 of the CCP, in such proceedings the court had to guarantee that the fundamental rights and freedoms and the essential procedural rights of the parties were observed and that the parties were heard (kohus kuulab menetlusosalise ära) if they so requested. However, for that it was not necessary for a court hearing (kohtuistung) to be conducted. On 8 July 2010 the County Court had ruled that the case was to be examined in written proceedings and had given the parties an opportunity to make written submissions. The applicant had thus been guaranteed an opportunity to present his position to the court. The Court of Appeal further noted that the applicant had not objected under Article 333 §§ 1 and 2 of the CCP to the County Court’s decision of 8 July 2010 whereby the court had ordered that the case be examined in simplified proceedings and requested the applicant to make his submissions in writing. Pursuant to Article 333 § 3 and Article 652 § 6 of the CCP (see paragraphs 19 and 20 below) the Court of Appeal could not therefore consider these arguments in the appellate proceedings. The Court of Appeal concluded that there was no legal basis for it to accept the applicant’s appeal for examination.

17.  The applicant lodged an appeal against the Court of Appeal’s decision, arguing that by refusing to allow him a hearing the County Court had clearly violated procedural law and Article 6 § 1 of the Convention.

18.  On 30 May 2011 the Supreme Court decided not to examine the appeal.

II.  RELEVANT DOMESTIC LAW AND PRACTICE

19.  The relevant provisions of the Code of Civil Procedure (Tsiviilkohtumenetluse seadustik), as in force at the material time, provided as follows:

Article 333 - Filing of objections to activity of court

“(1)  The participants in the proceedings may file objections to the activity of the court in directing the proceedings and also objections to the violation of procedural provisions and above all, to the violation of the formal requirements of performance of procedural acts. The court shall adjudicate an objection by a decision.

(2)  If a party does not file an objection at the latest at the end of a court session where the violation took place, or in the first procedural document submitted to the court after the violation took place, and the party was aware or should have been aware of the error, the party has no right to file the objection at a later time.

(3)  In the case specified in paragraph 2 of this Article, the party also has no right to rely on the error in the activity of the court upon filing an appeal against the court ruling.

(4)  The provisions of paragraphs 2 and 3 of this Article do not apply if the court has violated an essential principle of civil procedure.”

Article 404 - Written proceedings ordered by court

“(1)  The court may decide to conduct written proceedings (kirjalik menetlus) in respect of a proprietary claim if the value of the action does not exceed EEK 50,000 (EUR 3,196) and a party has significant difficulties in appearing before the court due to the length of the journey or for another good reason.

(2)  In the case specified in paragraph 1 of this Article, the court shall set a due date for submission of petitions and documents, and determine the time for announcing the judgment, and notify the participants in the proceedings thereof. The court may change the due date if this is necessary because changes have occurred in the procedural situation.

(3)  The court shall cancel written proceedings if, in the opinion of the court, the personal appearance of the parties is unavoidable for ascertaining the facts on which the action is based or if the party due to whom the written proceedings were ordered applies for adjudication of the matter in a court hearing. At the request of the other party, such party shall be heard regardless of whether or not written proceedings have been ordered.”

Article 405 - Simplified proceedings

“(1)  The court shall adjudicate an action by way of simplified proceedings at the discretion of the court, taking account of only the general procedural principles provided by this Code if the action concerns a proprietary claim and the value of the action does not exceed an amount which corresponds to 2,000 euros. Upon conducting proceedings in such an action, it is permitted, inter alia,:

1)  to enter procedural acts in the minutes only to the extent the court deems it necessary, and preclude the right to file any objections to the minutes;

2)  to set a term which differs from the term provided for by law;

3)  to prescribe the amount of procedural expenses already in the court decision which terminates the proceeding, allowing the participants in the proceedings to present their lists of procedural expenses beforehand;

4)  to recognise persons not specified by law as contractual representatives of participants in the proceedings;

5)  to deviate from the provisions of law concerning the formal requirements for provision and taking of evidence and to recognise as evidence also the means of proof not provided by law, including a statement of a participant in the proceedings which is not given under oath;

6)  to deviate from the provisions of law concerning the formal requirements for serving procedural documents and for documents to be presented to the participants in the proceedings, except for serving an action on the defendant;

7)  to dispense with written pre-trial proceedings or a court hearing;

8)  to take evidence on its own initiative;

9)  to make a judgment in a matter without the descriptive part and statement of reasons;

10)  to declare a decision made in a matter to be immediately enforceable also in other cases than those specified by law or without a security prescribed by law.

(2)  In the case specified in subsection (1) of this section, the court guarantees that the fundamental rights and freedoms and the essential procedural rights of the participants in the proceedings are observed and that a participant in the proceedings is heard if he or she so requests. A court hearing need not be held for this purpose.

(3)  The court may conduct proceedings in a matter in the manner specified in subsection (1) of this section without a need to make a separate ruling thereon. The participants in the proceedings shall still be notified by the court of their right to be heard by the court.”

20.  Article 652 § 6 of the Code of Civil Procedure provides that before a court of appeal, a party cannot rely on the fact that the court of first instance violated a provision of procedural law unless that party filed an objection to it in good time in the court of first instance under Article 333 of the CCP.

III.  RELEVANT EUROPEAN LAW

21.  The European Small Claims Procedure was established by Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007, which was applicable as of 1 January 2009. This regulation has been subsequently amended by Regulation (EU) 2015/2421 of the European Parliament and of the Council of 16 December 2015 amending Regulation (EC) No 861/2007 establishing a European Small Claims Procedure and Regulation (EC) No 1896/2006 creating a European order for payment procedure. The amended regulation will apply with effect from 14 July 2017. The relevant provisions of the Regulation (EC) No 861/2007, as in force at the material time, stated:

Recital 9

“(9) This Regulation seeks to promote fundamental rights and takes into account, in particular, the principles recognised by the Charter of Fundamental Rights of the European Union. The court or tribunal should respect the right to a fair trial and the principle of an adversarial process, in particular when deciding on the necessity of an oral hearing and on the means of taking evidence and the extent to which evidence is to be taken.

Article 2 Scope

1.  This Regulation shall apply, in cross-border cases, to civil and commercial matters, whatever the nature of the court or tribunal, where the value of a claim does not exceed EUR 2 000 at the time when the claim form is received by the court or tribunal with jurisdiction, excluding all interest, expenses and disbursements. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta jure imperii).

...

Article 5 Conduct of the Procedure

1.  The European Small Claims Procedure shall be a written procedure. The court or tribunal shall hold an oral hearing if it considers this to be necessary or if a party so requests. The court or tribunal may refuse such a request if it considers that with regard to the circumstances of the case, an oral hearing is obviously not necessary for the fair conduct of the proceedings.

The reasons for refusal shall be given in writing. The refusal may not be contested separately.

...

Article 9 Taking of evidence

1.  The court or tribunal shall determine the means of taking evidence and the extent of the evidence necessary for its judgment under the rules applicable to the admissibility of evidence.

The court or tribunal may admit the taking of evidence through written statements of witnesses, experts or parties. It may also admit the taking of evidence through video conference or other communication technology if the technical means are available.

2.  The court or tribunal may take expert evidence or oral testimony only if it is necessary for giving the judgment. In making its decision, the court or tribunal shall take costs into account.

3.  The court or tribunal shall use the simplest and least burdensome method of taking evidence.”

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

22.  The applicant complained that he had not received a fair civil trial owing to the lack of an oral hearing where he and two witnesses could have given evidence. He invokes Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...”

23.  The Government contested that argument.

A.  Admissibility

24.  The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

1.  The parties’ submissions

(a)  The applicant

25.  The applicant maintained that he had explicitly requested oral hearings at which he wanted to be heard in person. In his written reply to the County Court of 8 April 2009 he had named two witnesses whom he wished to be heard. He also argued that procedural economy did not constitute a good reason for dispensing with a hearing.

(b)  The Government

26.  The Government maintained that the applicant had had a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention.

27.  The Government noted that the civil dispute in the present case concerned the question of whether the applicant, who had committed an intentional criminal offence - as unequivocally proven by a judgment which had entered into force - was liable to the owner of the apartment where the offence had been committed for the proprietary damage caused as a result of the commission of the criminal offence. The amount of the claim against the applicant was lower than 2,000 EUR and the court had therefore decided to examine it in simplified proceedings in accordance with Article 405 § 1 of the CCP. In simplified proceedings the courts did not have to observe all the procedural rules and could waive the holding of a court hearing under Article 405 § 1(7) of the CCP. The aim of Article 405 of the CCP was to bring about more effective administration of justice by simplifying and speeding up proceedings in cases involving claims for modest amounts. The Government pointed out that the domestic regulation of simplified proceedings had been drafted on the basis of European Parliament and Council Regulation No. 861/2007 establishing a European Small Claims Procedure (see paragraph 21 above).

28.   In its ruling of 8 July 2010 the County Court had taken a position in respect of the applicant’s request for a hearing for the purpose of hearing the applicant and taking evidence from two witnesses. The court had decided not to summon the witnesses and had instructed the defendant to submit his additional submissions in writing. The Government explained that the court could also hear a person by way of written submissions, in particular in the context of simplified proceedings conducted in writing. In the present case the applicant’s personal character and lifestyle were not relevant to the subject matter of the case. The only behavioural aspect to which the applicant had repeatedly referred in the course of the proceedings was his allegedly having acted in self-defence when committing the crime. The fact that Harju County Court had decided to adjudicate the case in written proceedings clearly reflected the court’s belief that holding a hearing to ensure the personal appearance of the parties was not necessary. The exchange of procedural documents between the applicant and the plaintiff and the possibility granted to the applicant to make additional written submissions constituted hearing him (ärakuulamine). The Government pointed out that the applicant had not made any submissions within 30 days of receipt of the ruling of 8 July 2010, and after the deadline had passed the court was justified in presuming that the parties agreed to the use of the written procedure. The applicant had had the opportunity and obligation under Article 333 § 1 of the CCP to submit an objection against the ruling with regard to the decision of Harju County Court of 8 July 2010 to continue adjudication of the case in written proceedings. Failing to do so meant in substance that he had tacitly waived his right to a hearing.

29.  The Government pointed out that the County Court in its judgment of 3 December 2010 had thoroughly assessed all the positions submitted by the applicant. It had justified the extent to which it agreed either with the plaintiff or the defendant and the reasons why. The court’s decision to dispense with an oral hearing in this case could not have had any effect on the content of the final judgment. Subsequently both the Court of Appeal and ultimately the Supreme Court had arrived at the conclusion that no manifestly incorrect application of substantive law or a manifest and significant violation of procedural rights had occurred.

2.  The Court’s assessment

30.  The present case concerns an alleged violation of Article 6 § 1 of the Convention in domestic civil proceedings which were conducted under the rules for the adjudication of small claims. The Court recognises at the outset that member States may find it useful to introduce a simplified civil procedure for the adjudication of small claims. Such a simplified procedure may be in the interest of the parties as it facilitates access to justice, reduces the costs related to the proceedings and accelerates the resolution of disputes. The Court also accepts that member States may decide that such a simplified civil procedure should normally be conducted via written proceedings - unless an oral hearing is considered necessary by a court or a party requests it - and that the court may refuse such a request. Such a simplified civil procedure for the adjudication of small claims must of course comply with the principles of a fair trial as guaranteed in Article 6 §  1. The domestic provisions and their application in the domestic courts must therefore ensure respect for the right to a fair trial, in particular when deciding on the necessity of an oral hearing, on the means of taking evidence, and the extent to which evidence is to be taken (see also recital 9 in the preamble to the European Parliament and Council regulation No. 861/2007 establishing a European Small Claims Procedure (see paragraph 21 above)). In this context the Court also reiterates the obligation under Article 6 § 1 for the domestic courts to give reasons not only for judgments but also for major procedural decisions issued in the course of the proceedings (see, among others, Suominen v. Finland, no. 37801/97, 1 July 2003, which concerned the reasoning underlying a decision not to admit certain evidence, and Múčková v. Slovakia, no. 21302/02, §§ 64-70, 13 June 2006, which concerned the reasoning underlying a decision not to exempt the applicant from the payment of a court fee).

31.  According to the Court’s established case-law, in proceedings before a court of first and only instance, the right to a “public hearing” within the meaning of Article 6 § 1 entails an entitlement to an “oral hearing” unless there are exceptional circumstances that justify dispensing with such a hearing (see Göç v. Turkey [GC], no. 36590/97, § 47, ECHR 2002-V and the case-law cited therein). In proceedings before two instances, at least one instance must, in general, provide such a hearing if no such exceptional circumstances are at hand (see Salomonsson v. Sweden, no. 38978/97, § 36, 12 November 2002).

32.  The exceptional character of the circumstances that may justify dispensing with an oral hearing essentially comes down to the nature of the issues to be decided by the competent national court, not to the frequency of such situations. It does not mean that refusing to hold an oral hearing may be justified only in rare cases (see Miller v. Sweden, no. 55853/00, § 29, 8 February 2005). The Court has accepted exceptional circumstances in cases where the proceedings concerned exclusively legal or highly technical questions (see Koottummel v. Austria, no. 49616/06, § 19, 10 December 2009 and the case-law cited therein). Likewise, a hearing may not be required when the case 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 Döry v. Sweden, no. 28394/95, § 37, 12 November 2002).

33.  The Court has also held that, other than in wholly exceptional circumstances, litigants must at least have the opportunity of requesting a public hearing, even though the court may refuse the request and hold the hearing in private (see Martinie v. France [GC], no. 58675/00, §§ 42-44, ECHR 2006-VI). Similarly, it has attached importance to the fact that the applicants were not denied the possibility of requesting an oral hearing, although it was for the courts to decide whether a hearing was necessary, and that the decision refusing it was supported by reasons (see Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 74, ECHR 2007-II).

34.  In assessing whether there has been a violation of Article 6 § 1 on account of the lack of an oral hearing, the Court has also examined whether the requirements of fairness were complied with and did not necessitate an oral hearing, and in particular, whether the applicants were given an opportunity to put forward their case in writing and to comment on the submissions of the other party (see Vilho Eskelinen and Others, cited above, § 74; see also Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, § 22, 16 February 2016, where the Court reiterated that the questions of personal presence, the form of the proceedings - oral or written - and legal representation are interlinked and must be analysed in the broader context of the “fair trial” guarantee of Article 6).

35.  In the light of its established case-law, the Court will in the instant case assess whether the nature of the issues which were to be decided before the domestic courts justified dispensing with an oral hearing. It will then examine whether the applicant had the opportunity to request a hearing and the way the domestic court approached his request.

36.  Turning to the nature of the issues the domestic courts had to examine, the Court observes that the decision of the domestic court to opt for a written procedure does not contain any mention of those issues or of the question as to whether they could be examined without holding a hearing (see paragraph 12 above). Nor does the decision make any mention of the applicant’s request for evidence to be taken from him and the witnesses. The Court nevertheless notes that, in so far as the applicant contested the claim against him by arguing that the police had caused the damage or that there was not sufficient evidence regarding either the occurrence or the extent of damage, he raised certain questions of fact.

37.  With regard to the opportunity to request an oral hearing, the applicant had such an opportunity and he made use of it. However, it was left to the court’s discretion to decide whether a hearing was in fact necessary. The Court observes that the domestic court in substance gave no reasons for deciding the case in written proceedings and dispensing with an oral hearing and the taking of oral evidence from the applicant and the witnesses (see paragraph 12 above). It merely cited a provision of the law that set a threshold amount for cases which could be examined in written proceedings and explained that such proceedings could be used if a party had significant difficulty in appearing before the court due to the length of his or her journey or for another good reason. The court did not explain why this provision was applicable in the applicant’s case. It did not state explicitly why it refused to hold a hearing despite the applicant’s request. The Court notes that, pursuant to Article 5 of the Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure ‒ which had served as the basis for the relevant provisions of Estonian law ‒ the domestic court would have been under an obligation to give reasons for such refusal in writing.

38.  The Court has taken note of the Government’s argument that the applicant did not submit an objection under Article 333 of the CCP (see paragraph 19 above) after the court’s decision to examine the case in written proceedings (see paragraph 12 above). However, the Court does not see what purpose such an objection could have served. In his reply to the action the applicant had already explicitly formulated his request for the holding of an oral hearing in order to hear testimony from him and two witnesses and given his reasons for that request.

39.  The Court has also taken account of the practical problem of the applicant serving his prison sentence in Finland at the material time, whereas the civil proceedings against him took place in Estonia. It notes that “hearing” the applicant did not necessarily have to take the form of an oral hearing in a court room in Estonia. However, it does not appear that the domestic court considered other alternative procedural options (such as the use of modern communications technology) with a view to ensuring the applicant’s right to be heard orally. Moreover, the domestic court apparently did not even explain to the applicant that it had decided to replace hearing him orally with allowing him the opportunity to make written submissions (see paragraph 16 above regarding the appellate court’s explanation that for hearing the applicant no court hearing had to be conducted).

40.  The above considerations are sufficient for the Court to conclude that there has been a violation of the applicant’s right to an oral hearing under Article 6 § 1 of the Convention.

II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION

41.  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

42.  The applicant claimed 1,428 EUR in respect of pecuniary and EUR 3,000 in respect of non-pecuniary damage.

43.  The Government requested that the claim for just satisfaction be rejected in full. They further contended that the finding of a violation constituted sufficient reparation in respect of any non-pecuniary damage suffered.

44.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it considers, ruling on an equitable basis, that the applicant should be awarded EUR 1,000 in respect of non-pecuniary damage.

B.  Costs and expenses

45.  The applicant also claimed EUR 3,224 for the costs and expenses incurred before the Court.

46.  The Government finds that the amount claimed by the applicant is excessive in the light of the limited scope of the case.

47.  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 are reasonable as to 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 2,300 for costs and expenses in the proceedings before the Court.

FOR THESE REASONS, THE COURT

1.  Declares, unanimously, the application admissible;

 

2.  Holds, by five votes to two, that there has been a violation of Article 6 § 1 of the Convention;

 

3.  Holds, by five votes to two,

(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, the following amounts:

(i)  EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)  EUR 2,300 (two thousand three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.  Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

   Hasan Bakırcı                                                                        Işıl Karakaş
Deputy Registrar                                                                       President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Lemmens and Mourou-Vikström is annexed to this judgment.

A.I.K.
H.B.

 




JOINT DISSENTING OPINION OF JUDGES LEMMENS AND MOUROU-VIKSTRÖM

 

1.  We regret that we cannot share the view of the majority that there has been a violation of Article 6 § 1 of the Convention in this case

 

We agree with the general principles as set out in paragraphs 30-34 of the judgment. Our disagreement is with the application of these principles in the present case.

 

2.  The majority basically considers that the Harju County Court did not explicitly state the reasons for its decision not to hold an oral hearing notwithstanding the applicant’s request for such a hearing and notwithstanding his request that evidence be taken from him and two forensic experts (paragraphs 36-37 of the judgment).

 

We agree that a court dismissing a request for an oral hearing should, as a matter of principle, give reasons why it believes that the absence of the requesting party from the hearing will not be prejudicial to the fairness of the proceedings (see Yevdokimov and Others v. Russia, nos. 27236/05 and 10 others, § 36, 16 February 2016). However, the absence of such reasons does not, in our view, lead to the conclusion that the right to a fair trial has been violated if, in light of all the circumstances, the party is able to understand the reasons why his request has in fact been denied (compare Taxquet v. Belgium [GC], no. 926/05, § 92, ECHR 2010).

 

3.  In this case the County Court dismissed the applicant’s request for an oral hearing with a reference to Article 404 of the Code of Civil Procedure, according to which a written procedure could be applied when the claim was below a certain amount and a party’s appearance in court was significantly hindered by a long distance or for any other good reason (see paragraph 12 of the judgment).

 

This statement must be read in light of the nature of the claim brought before the court. The plaintiff’s claim was for compensation for damage caused during the commission of the murder for which the applicant had been convicted by a judgment that had become final (see paragraphs 7-8 of the judgment). It was, in other words, a claim relating to the civil consequences of a crime which had already been dealt with, after oral hearings, by a criminal court.

 

The applicant was obviously very well aware of these facts. The fact that in his written defence he argued that he had not committed a murder, but had acted in self-defence (and asked to be heard in person, together with two witnesses, in order to confirm that point of view), could not alter the nature of the claim.

 

In our opinion there could be no doubt that if the request for a hearing was denied, the “good reason” for doing so, within the meaning of Article 404 of the Code of Civil Procedure, was the very specific nature of the claim. If there had been an oral hearing, the applicant would have put forward his self-defence argument and have tried to obtain a decision different from the one in his criminal case. Whether or not this would have been possible is a legal issue which might be decided in written proceedings. Moreover, we doubt that the fairness of the trial would require an oral hearing during which the confusion between the respective competences of the criminal and the civil court would come to the fore.

 

4.  Added to that was the fact that the applicant was imprisoned abroad. With reference to Article 404 of the Code of Civil Procedure, the applicant’s appearance in court was significantly hindered by the long distance.

 

5.  Since the applicant was given ample opportunity to put forward his case in writing, we consider that in the given circumstances his right to a fair trial was respected.