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

In Chamber judgment in the case of Efstratiou and Others v. Greece (application no. 53221/14) the European Court of Human Rights held, unanimously, that there had been no violation of Article 6 (right to a fair trial / right of access to a court) of the European Convention on Human Rights.

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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