Application for postponement of a lawyer’s imprisonment. Rejection of a request and delivery of a decision in absentia of the party

JUDGMENT 

Bartaia v. Georgia  26.7.2018 (no. 10978/06)

see here 

SUMMARY 

Examination of a case in which the applicant’s lawyer could not attend. A postponement was requested on the ground that the applicant’s lawyer was at the same time handling another case in another court. The claim was dismissed and the case was adjudicated in absentia. Infringement of Article 6 § 1 (fair trial) because he was given the opportunity to use his right to be heard.

PROVISION 

Article 6 § 1

PRINCIPAL FACTS 

The applicant, Alexander Bartaia, is a Georgian national who was born in 1938 and lives in Tbilisi. The case concerned proceedings he had brought against his employer, a printing company, following his dismissal.

A hearing on Mr Bartaia’s case was held on 28 January 2004. His lawyer could not attend because he was involved in another hearing at the same time. The lawyer had written to the court shortly beforehand to inform it of his absence and to request an adjournment. He received no reply and Mr Bartaia therefore attended the hearing on his own. He also requested an adjournment, refusing to participate in the hearing without his lawyer. The court concluded that his refusal to participate amounted to his absence and issued a default judgment rejecting his case.

Mr Bartaia’s lawyer then filed an application to have that judgment set aside, without success. In particular, in May and September 2005, the appellate and cassation courts concluded that there was no justification for refusing to take part in a hearing under the relevant domestic law and that the participation of a lawyer in another hearing was not a valid reason for setting aside a decision in absentia. Furthermore, they found that Mr Bartaia had been warned by the first-instance judge of the consequences of his refusing to participate in the hearing.

Relying on Article 6 (right to a fair hearing) of the European Convention on Human Rights, he alleged that the proceedings in his case had been unfair. He alleged in particular that the default judgment had been issued against him without him being able to participate in the proceedings on an equal footing with the opposing party, who had been represented by a lawyer, and that he had not been given the possibility to then obtain a fresh examination of his case.

THE DECISION OF THE COURT 

Violation of Article 6 § 1

Just satisfaction: EUR 1,500 (non-pecuniary damage) and EUR 1,000 (costs and expenses)(echrcaselaw.com editing). 


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