Decision by the Supreme Court on the basis of new data that appeared for the first time without hearing the parties. Violation of a fair trial


Covalenco v. the Republic  of Moldova  16.06.2020 (no. 72164/14)

see here  


Right to be heard by parties, litigation, procedural responsibilities of the Supreme Court.

The plaintiff had filed a lawsuit against the insurance company for the complete destruction of his car in a car accident involving his wife. The lawsuit was settled out of court. The Supreme Court, condemning an appeal filed by the insurance company, annulled the final decision, based its decision on new evidence presented for the first time in the Supreme Court without allowing an oral hearing of the parties in order to refute them.

The Court reminded that, in a trial before a substantive court, the right to a “counterclaim” in the sense of Article 6 § 1 implies the right to “oral hearing” of the parties. With regard to the proceedings before the Supreme Court, the whole procedural system in the domestic legal order and the role of the particular court in it must be taken into account.

In the present case, the ECtHR found that the Supreme Court, although competent to adjudicate only on legal matters, ruled as a Court of First Instance, did not allow the parties to be heard orally, and upheld the decision, in a new speech which had not been presented by them. parties, ie that the insurance policy did not cover the wife, who was not subject to dispute and did not have the opportunity to oppose him.

Consequently, the ECtHR ruled that the proceedings were unfair. Violation of Article 6§1 of the ECHR.


Article 6§1

Article 13

Article 1 of the First Additional Protocol


The applicant, Dumitru Covalenco, is a Moldovan national who was born in 1983 and lives in

The case concerned the reversal by the Supreme Court of two judgments before the lower courts in
favour of the applicant in a dispute with an insurance company following a car accident.
In 2009 the applicant’s car was severely damaged when his wife was involved in an accident while
driving it. The applicant wrote many letters to his insurance company requesting to be paid the
insurance indemnity, to no avail.

He brought civil proceedings against the insurance company in 2012. The courts found in his favour
at first and second instance, ordering the company to pay the full value of the car.

However, in 2014 the Supreme Court of Justice quashed the lower courts’ judgments and dismissed
the applicant’s action, holding in particular that the applicant’s wife had not been covered to drive
the car by his insurance policy. It also accepted the insurance company’s argument that it had had
no access to the damaged car. It did not respond to the applicant’s counter-argument that the car
had been in the company’s possession and had been assessed by an expert appointed by it.

Relying in particular on Article 6 § 1 (right to a fair hearing) of the European Convention on Human
Rights, Mr Covalenco complained that the Supreme Court of Justice had examined the appeal on
points of law without the participation of the parties and that completely new arguments which had
not been a matter of debate before the lower courts had served as a basis for its decision


The Court reiterates that the right to an oral hearing is not only linked to the question whether the proceedings involve the examination of witnesses who will give their evidence orally. It is also important for litigants to have the opportunity to state their case orally before the domestic courts. Thus, the right to an oral hearing is one element underpinning the overall equality of arms between the parties to the proceedings. 

The Court also reiterates that, according to its established case-law, in proceedings before a court 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 Court has identified the following situations in which the abovementioned exceptional circumstances may justify dispensing with a hearing:

(a)  where there are no issues of credibility or contested facts which necessitate a hearing and the courts may fairly and reasonably decide the case on the basis of the case file.

(b)  in cases raising purely legal issues of limited scope.

(c)  where the case concerns highly technical issues. For instance, the Court has taken into consideration the technical nature of disputes concerning social-security benefits, which may be better dealt with in writing than in oral argument. It has held on several occasions that in this sphere the national authorities are entitled, having regard to the demands of efficiency and economy, to dispense with a hearing, as systematically holding hearings may be an obstacle to the particular diligence required in social-security cases 

The Court also reiterates that it stems from well-established case law from the Court that even though Article 6 does not prescribe any right of appeal, it requires that if domestic law provides for an appeal, Article 6 comes into play even in these appeal proceedings to the extent that these proceedings can reasonably be said to involve a determination of a criminal charge against the applicant or of his “civil rights or obligations”. Moreover, the Court also emphasises that the manner of application of Article 6 § 1 to proceedings after appeal, including to supreme courts, depends on the special features of the proceedings involved; account must be taken of the entirety of the procedural system in the domestic legal order and of the role of the particular court therein

Turning to the facts of the present case, the Court notes in the first place that the Supreme Court of Justice quashed the judgments of the lower courts and made no reference to those courts findings in its own judgment. It examined the case from the very beginning and replaced the assessment of facts and law made by the lower courts with its own, acting as if the case had never been examined by those courts. In such circumstances, it is safe to conclude that, despite being a court of last instance and examining an appeal on points of law, in reality the Supreme Court acted as a court of first instance. The fact that hearings were held before the lower courts is of no relevance and the applicant cannot be blamed for not requesting an oral hearing before the Supreme Court since he was not in a position to know the scope of the examination to be carried out by it.

The Court further notes that the parties disputed before the Supreme Court for the first time factual issues such as the whereabouts of the damaged car and the insurance companys access to it. In view of the conflicting submissions about the factual situation, the parties credibility was also an issue to be determined by the Supreme Court. Thus, the Supreme Court could not, as a matter of fair trial, dispense with a public hearing before adopting its judgment representing the final ruling on the matters of the dispute.

The Court notes next that the Supreme Court of Justice accepted the insurance companys argument that it had no access to the damaged car. In so doing the Supreme Court did not pay attention to the applicants counter-argument to the effect that the car was in the latters possession and that an expert appointed by the insurance company had carried out an assessment of the car. In the Courts view the applicants counter-argument was an important one and if accepted, it could have led to a different outcome of the case. In spite of that, the Supreme Court of Justice remained silent about it. In the absence of a specific and express reply, it is impossible to ascertain whether that court simply neglected to deal with the above applicants submission or whether it intended to dismiss it and, if that was its intention, what the reasons were for so deciding. Finally, the Court cannot but observe that in dismissing the applicants action against the insurance company the Supreme Court relied in its judgment proprio motu on a new reason which had not been argued by the parties and which was not a matter of dispute. Namely, it held that the insurance policy did not cover the applicants wifes driving the insured car. Not only had the insurance company never relied on that argument, but it admitted earlier in the proceedings that the applicants wife was covered by the insurance policy (see paragraph 9 above).

In the light of the foregoing considerations the Court comes to the conclusion that the proceedings were not fair and that, accordingly, there has been a violation of Article 6 § 1 of the Convention.

The applicant further complained about a breach of his rights guaranteed by Article 13 taken in conjunction with Article 6 and Article 1 of Protocol No. 1 to the Convention. Having regard to the facts of the case, the submissions of the parties and its findings under Article 6 § 1 of the Convention, the Court considers that it is not necessary to examine either the admissibility or the merits of the complaints under Article 13 and Article 1 of Protocol No. 1.

Just satisfaction: 3,500 euros (EUR) (non-pecuniary damage) and EUR 1,500 (costs and expenses).



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