The civil courts did not violate the right of access to a court by refusing a document which had not been submitted in accordance with the Code of Civil Procedure
The
applicants in this case considered that the refusal by the court of appeal and
the Court of Cassation to take account of evidence which they considered as
decisive for the outcome of the case had been excessively formalistic.
Those
courts had considered that the documents in question had not been presented to
the court of appeal in accordance with the requirements of Article 240 of the
Greek Code of Civil Procedure.
The Court
held, in particular, that the statement given by a witness for the applicants
at the hearing before the court of appeal, had fairly accurately reflected the
substance of the document (a sworn statement), which the court of appeal had
dismissed on the grounds that it had not been submitted in accordance with
Article 240 of the Code of Civil Procedure.
ECHR considered that the fact that the witness statement in question had been taken
into consideration seriously weakened the applicants’ argument that the sworn
statement had been crucial for the outcome of the case, given that their main
plea before the court of appeal had emerged clearly from the witness statement.
Consequently, the applicants had not sustained any disproportionate
interference with their right to a tribunal.
Principal
facts
The
applicants were born between 1944 and 1982 and live in Athens. The case
concerns civil proceedings which resulted in the applicants being ordered to
pay the opposing party a total of 334,330.95 euros, the court of appeal having
ruled that they had received that sum unduly as a donation, to the detriment of
one of the donor’s heirs.
The domestic
proceedings were commenced in 2010 before the Athens Court of First Instance,
which delivered judgment in favour of the applicants and dismissed the other
party’s claims. The latter party appealed, successfully, before the Athens
Court of Appeal in 2012. The proceedings ended in 2014 with a judgment from the
Court of Cassation dismissing the applicants’ appeal on points of law. The
applicants complained before the latter that the court of appeal had failed to
take account in its appraisal of a piece of evidence which had been submitted
to the court of first instance, on the grounds that it had not been submitted
in accordance with the requirements of Article 240 of the Greek Code of Civil
Procedure.
The
applicants considered that the evidence in question was decisive for the
outcome of the proceedings. Complaints, procedure and composition of the Court
Relying in particular on Article 6 § 1 (right to a fair trial / right of access
to a court), the applicants alleged that the refusal by the court of appeal and
the Court of Cassation to take account of the documentary evidence in question
had been excessively formalistic. They also considered that the civil courts
had restricted their right to a fair trial in a manner which was unclear,
inaccessible and unforeseeable, that that restriction had not sought to achieve
a legitimate aim and had been disproportionate to the aim pursued.
Decision of
the Court
Article 6 §
1 (right to a fair trial / right of access to a court)
The Court
noted that Article 240 of the Code of Civil Procedure (which regulated the
procedure allowing a party to refer to his previous observations during
proceedings before a higher court) pursued a legitimate aim: to ensure the
proper functioning of the courts; to guarantee that the evidence relied upon by
the parties to proceedings at appeal level would be taken into account; and to
avoid any unnecessary workload on the court of appeal in order to expedite
proceedings. That aim was therefore consonant with the aim set out in the explanatory
report to the decree introducing Article 240, that is, to prevent excessive
pressure on judges having to locate the parties’ submissions as presented in
the proceedings before the lower courts.
The Court
then noted that under the case-law of the Court of Cassation, it is
insufficient, in order for the inclusion of submissions made at first instance
among those presented on appeal to be admissible, to append the former to the
latter. Both series of submissions had to be presented in the form of a single
document seeking the acceptance or dismissal of the appeal. If the documents
were to be legally relied on before the court of appeal, they had to be
referred to in a specific, clear and precise manner in the aforementioned
single document, constituting the appeal memorial, and not indirectly via a
mere reference to the first-instance submissions. In the instant case the
applicants’ first-instance submissions had not been incorporated into the
appeal submissions in the manner required by the case-law of the Court of
Cassation, that is to say as a single document titled “observations before the
court of appeal” submitted as such.
Moreover,
the reference to the sworn statement and the bank statements had not been
specific, clear or precise, as also required by the same case-law. The Court of
Cassation’s ruling that the applicants’ reliance on the documents mentioned in
the first-instance submissions had been unlawful in the absence of any
reference to a specific passage in those submissions, had not been excessively
formalistic.
The court
had merely been applying the procedural rules, which had been clear, accessible
and readily comprehensible to the applicants, who had, moreover, been assisted
by a lawyer well-versed in judicial procedures. The Court considered it
necessary at that juncture to reiterate that the right to a fair trial could
only be deemed effective if the parties’ requests and observations were
actually “heard”, that is to say duly assessed by the “tribunal” in question.
In other words, the effect of Article 6 was to place the “tribunal” under a
duty to conduct a proper examination of the submissions, arguments and evidence
adduced by the parties, without prejudice to its assessment of whether they
were relevant.
In that
regard, the Court noted that the statement given during the hearing by a
witness for the applicants (Ef.Ma) had reasonably accurately reflected the
substance of the sworn statement. Consequently, the fact that the court of
appeal had taken account of that witness statement seriously weakened the
applicants’ plea that the sworn statement given by another witness had been
crucial for the outcome of the case. Indeed, the applicants’ main argument
before the court of appeal had clearly transpired from the statement by the
witness (Ef.Ma). Consequently, the Court found that the applicants had not
sustained any disproportionate interference with their right to a court and
that there had been no violation of Article 6 § 1 of the Convention. (echr.coe.int/ photo: pixabay)
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