Information Note on the Court’s case-law 201

November 2016

Pönkä v. Estonia - 64160/11

Judgment 8.11.2016 [Section II]

Article 6

Civil proceedings

Article 6-1

Public hearing

Oral hearing

Lack of substantive reasons for small-claims court’s refusal to hold oral hearing: violation

Facts – The applicant, a Finnish national, was convicted of murder in an Estonian court and transferred to Finland to serve his sentenc e. A civil claim was subsequently brought against him in the Estonian courts. In view of the low value of the claim, it was dealt with under a simplified (small-claims) procedure and the applicant’s request for an oral hearing was refused. In the Conventio n proceedings, the applicant complained that the lack of an oral hearing had deprived him and two witnesses he wished to call of the opportunity to give evidence.

Law – Article 6 § 1: According to the Court’s established case-law, in proceedings before a c ourt of first and only instance, the right to a “public hearing” within the meaning of Article 6 § 1 entails an entitlement to an “oral hearing” unless there are exceptional circumstances that justify dispensing with such a hearing. The exceptional charact er of the circumstances that may justify dispensing with an oral hearing essentially come down to the nature of the issues to be decided by the national court (for example, where the proceedings concern exclusively legal or highly technical questions ( Koot tummel v. Austria , 49616/06, 10 December 2009, Information Note 125 ) or raise no questions of fact or law which could not be adequately resolved on the basis of the case-file and the parties’ written observations ( Döry v. Sweden , 28394/95, 12 November 2002, Information Note 47 )). Other than in wholly exceptional circumstances, litigants must at least have the opportunity of requesting a public h earing.

In the instant case, the decision of the domestic court to opt for a written procedure did not mention the nature of the issues before it or whether they could be examined without holding a hearing. Furthermore, even though the applicant’s defence raised c ertain questions of fact, the decision made no mention of his request for evidence to be taken from him and the witnesses. Although the applicant had requested an oral hearing, the domestic court in substance had given no reasons for refusing his request, but merely cited Article 404 of the Code of Civil Procedure* without explaining why it was applicable in the applicant’s case. In this connection, the Court noted that, pursuant to Article 5 of Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure – which had served as the basis for the relevant provisions of Estonian law – the domestic court would have been under an obligation to give reasons for such refusal in writing. Lastly, although the Court acknowledged that there had been a practical problem in that the applicant was serving his prison sentence in Finland at the material time, it obser ved that “hearing” the applicant did not necessarily have to take the form of an oral hearing in a court room in Estonia. However, it did not appear that the domestic court had considered other alternative procedural options (such as the use of modern comm unications technology) with a view to ensuring the applicant’s right to be heard orally.

Conclusion : violation (five votes to two).

Article 41: EUR 1,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

* Article 404 allows a court trying a civil claim below a certain value to conduct written proceedings if a party has significant difficulties in appearing before the court due to the length of the journey or for another good reason. It further provides that the written proceedings shall be cancelled if, in the opinion of the court, the personal appearance of the parties is unavoidable for ascertaining the facts on which the action is based or if the party due to whom the written proceedings were ordered appl ies for adjudication of the matter in a court hearing.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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