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SECOND
SECTION
CASE OF ŠVENČIONIENĖ v. LITHUANIA
(Application
no. 37259/04)
JUDGMENT
STRASBOURG
25
November 2008
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 Švenčionienė v. Lithuania,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 4 November 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37259/04) against the Republic
of Lithuania lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Lithuanian national, Ms Jūratė
Švenčionienė (“the applicant”), on 1
October 2004.
- The
applicant was represented by Mr D. Jurgutis, a lawyer practising
in Kaunas. The Lithuanian Government (“the Government”)
were represented by their Agent, Ms E. Baltutytė.
- The
applicant alleged a violation of Article 6 § 1 of the Convention
as she had had no possibility to attend the
appeal hearing in the civil proceedings which she had brought.
- On
24 November 2006 the Court decided to give notice of the
application to the Government. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1974 and lives in Kaunas.
- On an unspecified date the applicant brought civil
proceedings for divorce and the division of the matrimonial property.
On 13 November 2002 she signed a power of attorney authorising her
lawyer to represent her during the first-instance proceedings before
the Kaunas City District Court.
- On 4 December 2003 the Kaunas City District Court
granted the divorce and divided the family's property, awarding the
applicant monetary compensation in the amount of 8,547 Lithuanian
litai (LTL, approximately 2,442 euros (EUR)), for the property
assigned to her former husband. The applicant and her lawyer were
present at the hearing.
- The applicant's husband appealed. On 4 February
2004 the Kaunas Regional Court sent a written notice (pranešimas)
about the forthcoming court hearing to four recipients – the
applicant, her lawyer who had represented her before the court of
first instance, the defendant and his lawyer. The notice was sent by
the ordinary postal service.
- On 18 February 2004 the Kaunas Regional Court heard the
appeal in the absence of the applicant and her lawyer. The court
noted that no comments on the appeal had been received from the
applicant. The other party was present at the hearing. The court
decided to reduce the amount of compensation to LTL 3,547
(approximately EUR 1,013).
- The applicant lodged a cassation appeal, complaining,
inter alia, that she had not been duly summoned to the
appellate hearing. In particular, the applicant alleged that the
notice sent to her had been dispatched to the wrong address.
Moreover, she had authorised her lawyer to represent her only before
the Kaunas City District Court. Thus, it had been futile to send
notice to that lawyer at the appeal stage.
- On 26 April 2004 the Supreme Court dismissed the
applicant's cassation appeal. It noted, inter alia, that, in
accordance with standard civil procedure, the parties are to be
notified about the first hearing by way of summonses (šaukimais)
served upon them by registered post. However, they are to be informed
about subsequent hearings by dispatching a notice via the simple
postal service. These arrangements are deemed to speed up proceedings
and are based on the assumption that the parties have a duty of care
to follow the events in the case.
- The Supreme Court acknowledged that the notice to the
applicant had been dispatched using an incorrect address and noted
that the notice had been sent to the applicant's former
representative. However, it observed that, in any event, the
applicant had failed to show that – had she been present before
the appeal court – she would have adduced any evidence that
could have led to a different resolution of the dispute. The
applicant had not indicated any such information in her cassation
appeal.
II. RELEVANT DOMESTIC LAW
- Articles
124 and 133 of the Code of Civil Procedure (the Code) provide that
the parties to the case shall be informed of the date and place of
the court hearing by sending them summonses (šaukimai) or
written notices (pranešimai). Once a summons to a forthcoming
hearing has been served upon the parties to the case, information
about subsequent hearings is rendered by sending written notices.
When the summons is sent, a note of its receipt by the recipient must
be returned to the court. However, when a notice is sent, no such
proof of receipt is required. Under Article 118 of the Code, the
service of a hearing notice on a party's representative constitutes
proper service on that party. Under Article 320 § 1 of the Code,
the court of appeal decides questions of law and fact.
- Pursuant
to Article 246, if a party to the case fails to appear and there is
no evidence that the party has been duly summoned, the hearing of the
first-instance court must be adjourned.
- Under
Article 310 of the Code, an appeal is to be submitted through the
first-instance court which adopted the relevant decision. Under
Articles 317 and 318, the judge of this court sends a copy of the
appeal to all parties to the dispute, who can comment on it in
writing.
- Article
319 provides that the parties are notified about the date and place
of the appeal hearing. If the court decides to hold a public hearing,
the parties are invited to attend, but their absence does not
preclude the court from deciding the case.
- Article
324 stipulates that, if the appeal court decides the case by the oral
procedure, before the hearing the chairman of the chamber has to
verify whether the parties are present. The parties have a right to
submit their arguments on the grounds of the appeal. If the court
finds it necessary, it can also examine the evidence which was
submitted to the court of first instance.
- According
to the practice of the Supreme Court, certain legal norms, which bind
the first-instance court when it decides whether a party's right to
participate at the hearing has been violated, also apply to the
appeal procedure (the ruling of the Supreme Court of 1 March
2004 in case no. 3K-3-149/2004). Likewise, the Supreme Court has
recognised the right of a party to receive a copy of the appeal which
the opponent has submitted and to be informed of the date and time of
the forthcoming hearing at the appeal court (the ruling of the
Supreme Court of 7 April 2004 in case no. 3K-3-262/2004).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that she had not been duly advised of the
hearing on appeal and, therefore, had not been able actively to
participate in it and present her arguments. She noted that the
appellate court had examined the case in the presence of the
defendant. The applicant alleged a violation of Article 6 § 1 of
the Convention which, in so far as relevant, provides as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. The parties' submissions
- The Government accepted that the notice about the
forthcoming hearing of the case before the Kaunas Regional Court had
been dispatched to the applicant at the wrong address. The Government
contended, however, that the applicant had had a duty to follow the
course of proceedings actively and be interested in the speedy
examination of the case. The Government observed that a notice
about the appeal hearing had been sent to the applicant's attorney,
who had represented her at first instance and who had had a
professional duty to inform her client. Finally, the Government
referred to the conclusion of the Supreme Court, that the applicant
had not submitted any new substantial facts or evidence which could
have had any influence on the appeal court's ruling had she taken
part in the hearing. The Government concluded that the applicant had
been guaranteed the right to a fair hearing within the meaning of
Article 6 § 1 of the Convention.
- The applicant observed that, pursuant to Article 317
of the Code of the Civil Procedure, having admitted an appeal, the
court of first instance is bound to send the parties a notice
informing them that the appeal procedure has been initiated, and
enclosing a copy of the appeal. The applicant contended that she had
not received such a notice and therefore it was not reasonable to
have expected her to follow the appeal process. The applicant
contested the Government's argument about alternative service on an
appellant's attorney. In her case, the appeal notice had had four
addressees, including her attorney. As the court's notice had also
been addressed to the applicant, her attorney could have reasonably
presumed that she had been duly informed of the appeal. Moreover, the
agreement between the applicant and the attorney had only concerned
representation at first instance. Therefore, by not informing the
applicant about the appellate process, her attorney had not breached
her professional duty.
B. Admissibility
- In
the light of the parties' submissions, the Court finds that the
application cannot be rejected as being manifestly ill-founded
pursuant to Article 35 § 3 of the Convention. It further notes
that it is not inadmissible on any other grounds. The Government's
arguments concern the merits of the case, which the Court will now
proceed to examine. Accordingly, the application must be declared
admissible.
C. The merits
- The
Court reiterates that the principle of equality of arms – one
of the elements of the broader concept of a fair hearing –
requires each party to be given a reasonable opportunity to present
his or her case under conditions that do not place the litigant at a
substantial disadvantage vis-à-vis the opponent (see,
among many other authorities, Kress v. France [GC],
no. 39594/98, § 72, ECHR 2001 VI). It also
implies, in principle, the opportunity for the parties to have
knowledge of and discuss all evidence adduced or observations filed
with a view to influencing the court's decision (see Fretté
v. France, no. 36515/97, § 47, ECHR 2002 I).
- The
Court observes that Article 319 of the Lithuanian Code of Civil
Procedure provides that, when there is to be an oral hearing before
an appeal court, the parties are notified of it. However, the
parties' attendance is not mandatory and, if a party does not appear
at the hearing without a valid reason after being duly notified, the
court can proceed with the examination of the appeal. The Court
considers that these provisions are not, in themselves, incompatible
with the fair hearing guarantees of Article 6 § 1.
- However,
the Court recalls that the Convention is intended to guarantee not
rights which are theoretical or illusory but rights which are
practical and effective (see, among many authorities, Multiplex v.
Croatia, no. 58112/00, § 44, 10 July 2003). It
considers that the right to equality of arms would be devoid of
substance if a party to the case were not apprised of the hearing in
such a way as to have an opportunity to attend it, should he or she
decide to exercise the rights established by domestic law, while the
other party had effectively exercised such rights.
- Turning
to the present case, the Court observes that the Government do not
deny the fact that the notice about the forthcoming appeal hearing
had been sent to the applicant at the wrong address. This had also
been recognised by the Supreme Court. The Court has regard to the
Government's argument that, in order to achieve the objective of
expeditious proceedings, the applicant had been required to follow
the course of the proceedings actively. The Court attaches importance
to that objective, which does not, however, justify disregarding such
a fundamental principle as the right to adversarial proceedings (see
Nideröst-Huber v. Switzerland, judgment of 18 February
1997, Reports of judgments and decisions 1997-I, §
30).
- Relying
on the documents presented to it, the Court notes that the
applicant's attorney was not authorised to represent her in the
appellate proceedings. Moreover, there is nothing in the case file to
prove that the applicant's attorney actually received the notice, as
it was not sent by registered post. However, even assuming that she
did receive the notice, the Court attaches credence to the
applicant's argument that her attorney, not representing her at the
appellate stage and having seen that the notice had also been
addressed to the applicant, could have reasonably presumed that the
applicant had thereby been aware of the hearing date. That being so,
the Court considers that, without being duly informed about the
appellate hearing, the applicant was effectively deprived of an
opportunity to participate in it actively. Moreover, this lacuna
was aggravated by the fact that the defendant took part in the
hearing and was given an opportunity to present his arguments. The
Court also notes that the appeal court overruled the first-instance
judgment in the defendant's favour. In addition, the Supreme Court,
albeit having explicitly acknowledged that the applicant had not been
duly summoned, upheld the appeal court's ruling.
- The
Court is of the view that, in the present case, respect for the right
to a fair hearing, guaranteed by Article 6 § 1 of the
Convention, required that the applicant be properly informed about
the appellate process in the Kaunas Regional Court and that she be
given the opportunity to comment on the submissions of the defendant.
Moreover, according to the national law (see paragraphs 13-18 above)
that was indeed the normal practice on appeal. However, as the appeal
court did not verify whether the applicant had been duly apprised of
the hearing, that practice was not followed in this case.
- The
Court further notes that the submission of the appeal and
participation at the hearing enabled the defendant to state his
arguments on the merits of the case, arguments which were not
communicated to the applicant and to which she could not reply. Thus,
the effect which the applicant's observations might have had on the
appellate decision cannot be assessed. More importantly, what is at
stake here is a litigant's confidence in the workings of justice,
which is based on, inter alia, the knowledge that an
opportunity will be given to express views on every document in the
file (see Nideröst-Huber, cited above, § 29).
- In
the light of the foregoing considerations, the Court concludes that
there was an infringement of the applicant's right to equality of
arms and adversarial proceedings.
Accordingly,
there has been a violation of the right to a fair hearing enshrined
in Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 10,000 Lithuanian litai (approximately 2,896 euros
(EUR)) in respect of pecuniary and non-pecuniary damage.
- The
Government considered the applicant's claims excessive and
unreasoned.
- In
the light of the parties' submissions and the material in the case
file, the Court does not discern any causal link between the
violation found and the pecuniary damage alleged, therefore it
rejects this claim. The Court considers that, in view of the
violation of Article 6 § 1, the applicant has
suffered non-pecuniary damage which is not sufficiently compensated
by the finding of a violation. Making its assessment on an equitable
basis, as required by Article 41 of the Convention, the Court
awards the applicant the sum of EUR 2,800 under this head.
B. Costs and expenses
- The
applicant did not submit any request for reimbursement of legal costs
and expenses. Thus, the Court makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,800 (two thousand eight hundred euros) in respect
of non-pecuniary damage, plus any tax that may be chargeable, which
sum is to be converted into the national currency of that State at
the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 25 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
