SECOND SECTION
DECISION
Application no. 61913/15
Arvo and Maie MERISALU
against Estonia
The European Court of Human Rights (Second Section), sitting on 2 October 2018 as a Committee composed of:
Ledi Bianku, President,
Jon Fridrik Kjølbro,
Ivana Jelić, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 10 December 2015,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Arvo Merisalu and Ms Maie Merisalu, are Estonian nationals who were born in 1960 and 1962, respectively, and live in Saare County. They were represented before the Court by Mr J. Saar, a lawyer practising in Tallinn.
2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants were defendants in a civil case in which the plaintiff had claimed pecuniary damage (loss of profit) in the amount of 7,132.62 euros (EUR) for the unauthorised destruction by the applicants of rapeseed sowed by the plaintiff. During the proceedings both the plaintiff and the applicants presented, on two occasions, arguments and evidence about how the damage should be calculated, particularly about how to estimate the amount of rapeseed the plaintiff would have yielded had it not been destroyed, at what price it could have been sold and what costs the plaintiff had avoided as a result of losing his crop. The applicants submitted as evidence general statistical information about the country’s average rapeseed yield, the average buying price and cost calculations.
5. During the proceedings the plaintiff submitted his final observations and evidence to the Pärnu County Court on 24 November 2014. He repeated the same claims and calculations as submitted already earlier. He also submitted some additional evidence to further strengthen his claims and calculations. These observations and evidence were not made available to the applicants.
6. The applicants submitted their final observations on 4 December 2014, but did not present any additional evidence concerning the calculation of damage. They particularly noted that as the plaintiff had not submitted any new claims or evidence by the deadline of 24 November 2014, it must be concluded that the plaintiff had missed that deadline.
7. The Pärnu County Court, by its judgment of 12 December 2014, allowed the claim in part and awarded EUR 5,377 in total to the plaintiff. Noting that the parties had not presented clear evidence concerning the calculation of damage, the court used its discretion to calculate the exact amount of compensation, taking into account the defendants’ arguments and the principle that any gain received by the injured party as a result of the damage caused, particularly the costs avoided by the injured party, was to be deducted from the compensation to be awarded. The court found that the plaintiff had proved the expected selling price of the rapeseed. As for the expected yield of land, the court used the weighted average of the rates that had been suggested by the plaintiff (specifically his neighbour’s yield) and the applicants (the Estonian statistical average). As for the costs saved, the court found that it cannot base its finding on the statistical data concerning bigger agricultural holdings as submitted by the applicants, but it nevertheless doubled the sum proposed by the plaintiff, thereby reducing his compensation. In the descriptive part of the judgment the court referred to, inter alia, the final observations submitted by the plaintiff.
8. The applicants appealed on 12 January 2015. They referred to the fact that the plaintiff’s final observations and evidence had not been made available to them and that they had learned about those submissions only from the judgment of the first-instance court. They noted that they had been able to examine the plaintiff’s final observations and evidence on 7 January 2015 and that in the appeal they not only re-submit their earlier statements, but also present counter-statements to the plaintiff’s final observations and evidence. The applicants challenged the Pärnu County Court’s calculation of the plaintiff’s saved costs and the method of using the weighted average rapeseed yield. As additional evidence they wished to submit statistical information about the average rapeseed yield in the county (maakond) and a brochure about a crop cultivation competition in 2010 (to show that the plaintiff’s expected yield could not have depended solely on the location of his field and could not have been as high as he claimed, that the plaintiff had used a different method of cultivation than the winner of the competition and that the latter’s costs had also been considerably higher than those claimed by the plaintiff).
9. The Tallinn Court of Appeal, during its hearing of 17 March 2015, did not accept any additional evidence from the parties, considering that the applicants could have submitted the particular evidence (see paragraph 8 above) already at the first-instance and that there had been no reason why this could not have been done.
10. In its judgment of 1 April 2015, the Tallinn Court of Appeal found that the Pärnu County Court had breached procedural law by not sending the plaintiff’s final observations and evidence to the applicants. Nevertheless, it concluded that the breach had not affected the outcome of the case and, in using its discretion to determine the amount of damage, the Pärnu County Court had not exceeded its discretionary powers. The court found that the applicants had had the chance to challenge in their appeal the establishment of facts and the assessment of evidence by the first-instance court. However, none of the arguments presented at appeal had given grounds for reaching a different conclusion in the case at hand. The Court of Appeal referred to the articles from the local newspaper submitted by the plaintiff on 24 November 2014 to find that the rapeseed yields in the particular rural municipality could indeed have been expected to have been higher than the Estonian national average. However, the Court of Appeal did not take the record yields mentioned in that article into account in order to change the calculation used by the County Court, but agreed with the method whereby a weighted average between the plaintiff’s neighbour’s rapeseed yield and the one suggested by the applicants had been used. The court noted in response to the applicants’ appeal that the Pärnu County Court had not overlooked their claim that the expected yield did not depend solely on the location of the field but also on other factors. It also found that the applicants had not challenged any of the particular cost items that the plaintiff had allegedly avoided and concluded that the latter’s arguments concerning the avoided costs could not be considered inconceivable.
11. On 15 June 2015 the Supreme Court upheld the Court of Appeal’s judgment by refusing to examine an appeal on points of law by the applicants.
B. Relevant domestic law and practice
1. Relevant domestic law
12. The Code of Civil Procedure (tsiviilkohtumenetluse seadustik – hereinafter “the CCP”), as in force at the material time, provided as follows:
Article 656 – Consequences of a violation of provisions of procedural law
“(1) Regardless of the reasoning of the appeal and the circumstances set forth therein, a court of appeal quashes a judgment of a court of first instance and remits the matter for a new hearing to the court of first instance if, in the court of first instance:
1) the principle of legal hearing or the public nature of the proceedings have been materially violated;
...
(2) In the event specified in subsection (1) of this Article, a court of appeal need not remit a matter back for another hearing if the omission can be corrected in appeal proceedings. A court of appeal also has the right to quash a judgment of a court of first instance regardless of the reasons set out in an appeal and to remit the matter for a new hearing to a court of first instance owing to a material violation of some other provisions of procedural law if such a violation cannot be corrected in appeal proceedings.
...”
2. Relevant domestic practice
13. In the judgments in cases nos. 3-2-1-142-04 (14 December 2004) and 3‑2-1-52-16 (16 June 2016) the Supreme Court confirmed that in the event of lower-instance courts breaching procedural law in a manner that undermined the principle of equal treatment of parties in civil proceedings, it was prepared to quash the lower-instance judgment and remit the case for a fresh examination.
14. In a judgment of 17 February 2015 in a civil case (no. 3-2-1-156-14) the Supreme Court concurred with the defendant that the first-instance court – the Harju County Court – had treated the parties unequally in breach of the CCP (both parties had been late to submit their observations to the court, but the County Court in its judgment had disregarded only the late submissions by the defendant). The Supreme Court found, nevertheless, that the Court of Appeal’s disregard of the County Court’s breach had not constituted such an important infringement of procedural law that would give grounds for quashing the Court of Appeal judgment as the parties in their observations had not submitted any new arguments or facts.
COMPLAINT
15. The applicants complained under Article 6 § 1 of the Convention that the Pärnu County Court, in breach of the right to a fair and adversarial hearing, had not sent them the plaintiff’s final observations and evidence and that they had thus been unable to make submissions and present their own evidence in reply.
THE LAW
Alleged violation of Article 6 § 1 of the Convention
16. The applicants alleged, relying on Article 6 § 1 of the Convention, a breach of their right to a fair and adversarial hearing. The relevant part of Article 6 § 1 of the Convention reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
1. The parties’ submissions
(a) The Government
17. The Government considered that the complaint was manifestly ill‑founded as the applicants had been able to appeal and the procedural violation of their rights by the Pärnu County Court had been duly addressed and remedied by the Court of Appeal, which had given sufficient reasons for its decision. As the additional submissions made by the applicants in their appeal had not given grounds for reaching a different conclusion and the procedural violation had not affected the correct adjudication of the case (see paragraph 14 above), the Court of Appeal had not remitted the case for fresh examination.
18. Taking the abovementioned argument into account, the Government in any event considered that the applicant had not suffered a significant disadvantage. The plaintiff’s submissions, which the Pärnu County Court had failed to make available to the applicants, did not contain anything new (the plaintiff’s claims and basis for his calculations being the same) and the County Court did not, in its judgment, rely on any submissions to which the applicants had not been able to respond earlier. Furthermore, the applicants had, in their appeal, in essence only repeated their earlier arguments. The evidence which the applicants submitted together with their appeal and which they described in detail in their appeal, could have been submitted at an earlier point. The fact that the Pärnu County Court lowered the amount of damage payable to the plaintiff by doubling the amount of the initially proposed avoided costs (see paragraph 7 above) could be seen as an endorsement of the applicants’ claim that the plaintiff’s initial calculations had been misguided.
(b) The applicants
19. The applicants argued that the procedural breach had not been remedied as the Court of Appeal had refused to accept the evidence they had wanted to submit in response to the plaintiff’s submissions of 24 November 2014 and it had therefore never been examined in the domestic proceedings. They had thus been left without the opportunity to prove their claims and objections, as required under domestic law. The applicants averred that – within the deadlines set by the domestic courts – they should have had the right to submit evidence at any stage of the proceedings, depending on their strategy and the evidence submitted by the other party.
20. They also claimed that in so far as the County Court had made a discretionary judgment based on all the evidence before it, there was nothing to prove that the court had not, inter alia, taken into account the evidence submitted by the plaintiff on 24 November 2014. They noted that this evidence had showed that the average rapeseed yield in the relevant rural municipality (vald) had been the highest in Estonia, and that the County Court had, indeed, ordered them to pay higher damage than those that could have been calculated based on the Estonian or the county’s statistical average. They were also left without a possibility to prove that the avoided costs had been higher than those claimed by the plaintiff.
2. The Court’s assessment
21. The Court notes that the Government raised a preliminary objection of the application being manifestly ill-founded. Relying on partially overlapping arguments (see paragraphs 17 and 18 above), the Government also stated that the applicants had not suffered significant disadvantage.
22. The Court reiterates that the right to adversarial proceedings means in principle the opportunity for the parties to court proceedings falling within the scope of Article 6 to have knowledge of and comment on all evidence adduced or observations filed, with a view to influencing the court’s decision (see, among many other authorities, M.S. v. Finland, no. 46601/99, § 32, 22 March 2005, and Nideröst-Huber v. Switzerland, 18 February 1997, § 24, Reports of Judgments and Decisions 1997‑I). At the same time, admissibility of evidence is primarily a matter for regulation by national law and, as a general rule, it is for the national courts to assess the evidence before them (see, among many other authorities, Elsholz v. Germany [GC], no. 25735/94, § 66, ECHR 2000‑VIII). The Court notes that when examining complaints regarding an alleged violation of the right to a fair trial, it must have regard to the proceedings as a whole in order to determine whether they were fair and whether the alleged absence of procedural safeguards had an impact on the outcome of the proceedings (see Elsholz, cited above, § 66; see also Özgür Keskin v. Turkey, no. 12305/09, § 27, 17 October 2017).
23. Turning to the facts of the present case, the Court observes that although the Pärnu County Court failed to make the plaintiff’s final observations and evidence available to the applicants, the applicants did not claim that these observations (and the evidence submitted therewith) were unavailable to them after they learned about their existence from the Pärnu County Court’s judgment of 12 December 2014. In fact, they particularly mentioned in their appeal of 12 January 2015 that they had been able to examine these observations on 7 January 2015 and that in addition to their statements made earlier in the proceedings they would like to submit counter-arguments to the plaintiff’s submissions that had initially not been sent to them (see paragraph 8 above).
24. In the light of the above, the Court reiterates its established case-law according to which a defect at first instance may be remedied on appeal, as long as the appeal body has full jurisdiction to quash the impugned decision and either to take the decision itself, or to remit the case for a new decision by an impartial body (compare and contrast M.S., cited above, § 35, 22 March 2005, and Karsu v. Turkey, no. 52438/08, 7 March 2017).
25. The Court accordingly finds that the effects of the regrettable procedural error of the first-instance court were remedied in so far that the applicants were able to acquaint themselves with the observations in question and respond to them in their appeal before the Court of Appeal which had – had it considered it warranted – the competence to either remit the case or quash it and take a new decision itself (see paragraphs 12, 13 and 14 above). In the present case the Court of Appeal took note of the applicants’ arguments submitted at appeal, but considered that they did not give grounds to reaching a different conclusion from that of the Pärnu County Court (see paragraph 10 above).
26. The question remains whether the Court of Appeal’s refusal to accept any additional evidence from the applicants rendered the proceedings as a whole unfair.
27. The Court observes that the evidence the applicant sought to submit was statistical information about the particular county’s average rapeseed yields and a brochure about a crop cultivation competition in 2010 (see paragraph 8 above).
28. The Court notes, firstly, that the applicants had already argued before the first-instance court that the plaintiff’s expected yield could not have been as high and his avoided costs not as low as he had claimed and had submitted their (statistical) evidence in that connection (see paragraph 4 above). Against that background, the evidence they wanted to submit in appeal was not new in character nor was it to prove any new submissions, but rather to reinforce the position that they had already previously argued.
29. In that connection, the Court points out that the applicants’ respective arguments had already been taken into account by the Pärnu County Court. It found, firstly, that neither of the parties had convincingly proved how much rapeseed exactly the plaintiff would have yielded had his crops not been destroyed by the applicants, and instead used the weighted average of the respective yields suggested by the parties (see paragraph 7 above). Secondly, the first-instance court – although explaining why it had not based the calculation on the statistical information provided by the applicants – nevertheless doubled the amount of the avoided costs as suggested by the plaintiff and thus reduced the latter’s compensation (ibid.). Such an approach to calculating the yield and avoided costs cannot, in itself, be criticised. It is not for the Court to substitute its own assessment of the facts for that of the domestic courts and prescribe to the latter which evidence and to what extent they should have found convincing and which not.
30. In the light of the above, the Court concludes that the decision of the Court of Appeal not to accept the applicants’ additional evidence did not affect the fair balance between the parties to such an extent as to render the proceedings as a whole unfair. Accordingly, it finds that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 25 October 2018.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
Full & Egal Universal Law Academy