CASE OF BARTAIA v. GEORGIA
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1938 and lives in Tbilisi. 6. On 10 September 2003 the applicant was dismissed from a printing company. He brought proceedings against his employer. 7. At the preparatory hearing of 26 December 2003 the DidubeChugureti District Court in Tbilisi (“the District Court”) scheduled the main hearing for 3.30 p.m. on 28 January 2004. The preparatory hearing was attended both by the applicant and his lawyer. On 22 January 2004 the applicant’s lawyer wrote to the court informing that he was due to attend a hearing for an appeal on points of law before the Supreme Court of Georgia at 3 p.m. on 28 January 2004 and therefore could not be present. He requested that the hearing be adjourned. No reply followed. 8. The District Court held the hearing on 28 January 2004 as planned. The applicant appeared and submitted that, as he was not a lawyer, he would be unable to argue his case in the absence of his representative. He requested that the hearing be adjourned so that he could be represented by his lawyer. Counsel for the opposing party objected to the request and asked the first-instance court to issue a default judgment against the applicant. The record of the hearing shows that the judge warned the applicant that, if he refused to take any further part, “the court would give a decision in absentia”. The applicant, however, repeated that he would be unable to present his case without his lawyer. 9. According to the record of the hearing, the District Court did not consider the applicant’s request for an adjournment. It ruled that his refusal to participate in the hearing equated to a failure to appear in court within the meaning of Article 232 of the Code of Civil Procedure (“the CCP”, see paragraph 20 below). In view of the above, and concluding that the applicant had been duly summoned to the hearing in accordance with Articles 70 to 73 of the CCP, the judge issued, in accordance with Article 229 § 1 of the CCP (see paragraph 20 below), a default judgment rejecting the applicant’s action without examining it or giving any reasons. 10. The decision stated in its operative part that an application to set aside the judgment could be made to the same court within ten days. 11. The applicant’s lawyer filed an application to set aside the judgment, enclosing a letter from the Supreme Court dated 5 February 2004 confirming that he had participated in the hearing of an appeal on points of law at 3 p.m. on 28 January 2004. He argued that his involvement in the examination of another case was a “valid reason” for his absence (see Articles 233 and 241 of the CCP as cited in paragraph 20 below). 12. On 19 March 2004 the same District Court judge confirmed his own decision of 28 January 2004. He found that the applicant had been summoned to the hearing in accordance with the rules set out in Articles 70 to 78 of the CCP, and pointed out that there was no legal requirement to also summon a party’s lawyer. When he had appeared before the court, the applicant had stated that he objected to the examination of the case without his lawyer present and had refused to take part in the hearing. As conduct of that sort equated to a failure to appear under Article 232 of the CCP and none of the circumstances provided for by Article 233 of the CCP had been established, the judge decided that Article 241 of the CCP should not be applied to set aside the default judgment. 13. The applicant appealed against the decision of 19 March 2004. On 16 July 2004 the Tbilisi Regional Court (“the Regional Court”) found that, in breach of Article 72(z) of the CCP, the applicant and his lawyer had not been properly warned of the consequences of not appearing before the court. Moreover, at the hearing on 28 January 2004 the District Court had not properly explained to the applicant what a default judgment would mean for him. The Regional Court considered that, as the applicant was not a lawyer, he could not have known that a decision in absentia would necessarily be to his detriment. Therefore, as the caution provided for in Articles 70 to 78 had not been issued in the present case, the Regional Court held that there were grounds, under Articles 233 and 241 of the CCP, for setting aside the decision of 19 March 2004. The applicant’s appeal was thus remitted to the District Court for re-examination. 14. The applicant’s former employer lodged an appeal on points of law against the appeal judgment. 15. On 2 March 2005 the Supreme Court of Georgia found that, contrary to the Regional Court’s assertion, the applicant had been informed in the hearing notice of the consequences of a failure to appear. There had therefore been no violation of Article 72(z) of the CCP. The Supreme Court also found that, according to the record of the hearing of 28 January 2004, the judge had warned the applicant that “in the event of a refusal to take part in the hearing, a decision [would] be given in absentia”. The applicant had therefore been sufficiently informed of the consequences of his conduct. Lastly, the Supreme Court pointed out that a court could give a decision in absentia if a lawyer or a party failed to appear at a hearing, on condition that the party had been summoned in accordance with the rules set out in Articles 70 to 78 of the CCP. Consequently, the Supreme Court set aside the Regional Court’s judgment of 16 July 2004 and remitted the case. 16. On 10 May 2005 the Regional Court followed the Supreme Court’s reasoning and added that the applicant’s lawyer’s involvement in another hearing was not a “valid reason” for setting aside the decision in absentia, given that Article 232 of the CCP did not specify on what grounds a party could refuse to take part in a hearing. According to the Regional Court, this meant that any refusal to take part in the hearing was unjustified. It therefore upheld the decision of 19 March 2004. 17. An appeal on points of law by the applicant was dismissed on 16 September 2005. The Supreme Court ruled that Article 241 contained an exhaustive list of the grounds on which a default judgment could be set aside. It further concluded, in contrast with the finding of the Regional Court on 16 July 2004, that the applicant had been duly informed of the consequences of his failure to appear at the hearing. Thus, this argument could not have served as a valid basis for a re-examination of the case in accordance with Article 241 of the CCP. 18. Nor did the applicant’s refusal to participate in a trial for whatever reason, according to the Supreme Court, merit a re-examination of the case. It emphasised in this connection that the refusal to participate equated to a failure to appear in terms of its legal consequences. 19. No appeal lay against the above decision of the Supreme Court.