Communicated on 9 November 2020 Published on 30 November 2020

FOURTH SECTION

Application no. 17964/14 HASAR LTD against Armenia lodged on 15 February 2014

STATEMENT OF FACTS

The applicant company, HASAR Ltd, was established in 2005 and carried out its activities in Gar-Gar village, Armenia. It is represented before the Court by Ms M. Ghulyan , a lawyer practising in Yerevan.

The facts of the case, as submitted by the applicant company, may be summarised as follows.

At the relevant time the applicant company ran its business from a greenhouse.

On 1 September 2006 the applicant company concluded a contract for supply of natural gas (“the contract”) with a natural gas provider (“the provider”) for the supply of natural gas for the heating of its greenhouse.

Between 10 October and 11 November 2008 the provider did not supply the applicant company with natural gas, since the latter had failed to pay for the service.

On 31 August 2011 the applicant company lodged a claim with the Arabkir and Kanaker-Zeytun District Court of Yerevan (“the District Court”) against the provider, seeking compensation for damage sustained as a result of lack of heating. It appears from the claim lodged by the applicant company that the documents submitted to the District Court included a copy of the contract.

On 17 October 2011 the provider lodged a counter-claim, which it later supplemented on 14 November 2011, arguing, inter alia , that the applicant company had failed to pay for its services on a number of occasions and that, in any event, the applicant company ’ s allegation as to the damage sustained due to lack of heating was unsubstantiated.

On 6 March 2013 the District Court granted the applicant company ’ s claim and rejected the provider ’ s counter-claim. It found, in particular, that the termination of the supply of natural gas by the provider had been unlawful and had caused damage to the applicant company.

The provider appealed against that judgment, arguing that according to Annex no. 2 to the contract, the provider had not been obliged to supply the applicant company with natural gas from April to October 2008.

The applicant company submitted a response to the provider ’ s appeal, arguing, in particular, that the provider had failed to explain why it had resumed the supply of natural gas starting from 11 November 2008, instead of 1 November 2008.

By decision of 24 May 2013 the Civil Court of Appeal (“the Court of Appeal”) quashed and amended the District Court ’ s judgment of 6 March 2013. It found that according to Annex no. 2 to the contract, the provider had not been obliged to supply the applicant company ’ s business facilities with natural gas from April until October 2008.

The applicant company submitted that, after the receipt of the decision of the Court of Appeal, its lawyer had obtained a copy of Annex no. 2 which had been at the disposal of the Court of Appeal. It was noted, however, that this copy was different from its own copy of the same document. In particular, that copy contained an annual schedule for the supply of natural gas, according to which the provider was not obliged to supply gas from April to October 2008 whereas the copy of Annex no. 2 in the applicant company ’ s possession did not provide for any interruption or termination of supply in 2008.

The applicant company sought a forensic expert examination of the copy of Annex no. 2 to the contract obtained from the Court of Appeal.

On 21 June 2013 the expert concluded that the document at issue had not been copied directly from the original version, that is, it had been copied once or more from another copy of the original document. It also established that handwritten notes had been added to the schedule of provision of services and other parts of the document, in addition to a number of other changes not contained in the original document.

The applicant company lodged an appeal on points of law. It argued, inter alia , that the provider had failed to raise the argument concerning the lack of obligation to supply the applicant company with natural gas between 10 October and 11 November 2008 before the District Court. It further argued that the Court of Appeal had accepted new documentary evidence from its opponent (the alleged new version of Annex no. 2 to the contract) and had, moreover, relied on it to establish a new fact which had not previously been examined by the District Court. In this connection, the applicant company stated that the Court of Appeal had relied on a version of Annex no. 2 which differed from its version and which had been disclosed to it only after the appeal proceedings. Therefore, its lawyer had been deprived of an opportunity to examine and comment on it during the appellate proceedings. Relying on the expert report of 21 June 2013, it argued that Annex 2 to the contract provided to its lawyer had been forged.

On 30 July 2013 the provider filed its objections to the applicant company ’ s appeal on points of law. In particular, it argued that the contract and Annex no. 2 had been submitted to the District Court and to the parties during the preliminary examination of the case in 2011. Therefore, the applicant company had had the opportunity to examine and respond to it earlier.

On 7 August 2013 the Court of Cassation declared the applicant company ’ s appeal on points of law inadmissible for lack of merit.

The Code of Civil Procedure (as in force at the material time)

According to Article 95 § 1, the respondent shall file observations in reply to the claim with the court within two weeks after the receipt of the decision on admission of the claim by the court.

According to Article 95 § 5, the failure of the respondent to file the observations in reply objecting to the claim may be interpreted by the court as admission of the facts relied upon by the plaintiff.

The relevant parts of Article 219 read as follows:

“...

2. The court of appeal shall not have the authority to admit new evidence and, in the examination of the appeal, shall rely on evidence which had been submitted to the trial court. If the evidence had not been submitted during the trial for reasons beyond the control of the parties, then the court of appeal shall reverse the case and remit it for new examination by the trial court, if it finds that such evidence is significant for the case.

3. The facts established during the trial proceedings shall be binding in the examination of the appeal, except when that fact is disputed and the court of appeal concludes that the trial court seriously erred in the establishment of that fact. In such circumstances the court of appeal shall have the power to establish a new fact or hold that the trial court failed to establish that fact, if such conclusion can be reached on the basis of the evidence examined during the trial.

4. If the trial court failed to establish certain facts on the basis of evidence before it, then the court of appeal shall be authorised to establish a new fact, if such conclusion can be reached on the basis of the evidence examined during the trial.”

COMPLAINT

The applicant company complains under Article 6 § 1 of the Convention of the lack of adversarial proceedings before the Civil Court of Appeal. It argues, in particular, that the Civil Court of Appeal granted, in breach of the domestic rules of procedure, a procedural advantage to its opponent by establishing a new fact on the basis of new evidence which had not been examined in the proceedings before the District Court.

QUESTION TO THE PARTIES

Did the applicant company have a fair hearing in the determination of its civil rights and obligations, in accordance with Article 6 § 1 of the Convention ? In particular, having regard to the admission as evidence and the examination of Annex no. 2 to the contract dated 1 September 2006 by the Civil Court of Appeal, can it be said that the principles of adversarial hearing and equality of arms guaranteed by that provision were respected in the proceedings before that court (see Regner v. the Czech Republic [GC], no. 35289/11, § 146, 19 September 2017; and Nideröst -Huber v. Switzerland , 18 February 1997, Reports of Judgments and Decisions 1997 ‑ I, § 24) ?

The parties are requested to clarify whether, in the course of the proceedings before the District Court, the applicant company had the opportunity to examine and comment on the version of Annex no. 2 to the contract of 1 September 2006 which was subsequently relied on by the Civil Court of Appeal to quash the District Court ’ s judgment.