The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 7 December 2018, the Constitutional Court of Georgia granted the complaint N765 of a Georgian citizen, Davit Dzotsenidze against the Parliament of Georgia. The complainant challenged the constitutionality of a) first sentence of Article 429, first sentence of section 1 of Article 430, section 3 of Article 430 and Article 431 of the Civil Procedure Code with respect to Article 42(1) of the Constitution of Georgia; b) the first sentence of Article 429 and first sentence of section 1 of Article 430 of the Civil Procedure Code with respect to Article 42(3) of the Constitution of Georgia.

The complainant argued that according to the disputed provisions of the Civil Procedure Code, a final judgement could be reversed and the proceedings could be reopened based on an action for a retrial due to newly discovered circumstances at the court session without an oral hearing. It was submitted that without being able to participate in the court proceedings concerning the issue of admissibility as well as substantial hearing, the disputed provisions of the Civil Procedure Code violated the complainant’s right to a fair trial.

The complainant further questioned the constitutionality of the disputed provisions, according to which a final court judgement, disputed by the litigant in a given civil case, was fully reversed and the consideration started anew if the action for a retrial was well-founded. The complainant noted that such action should have led to reversing the judgement partially, in limits of the newly discovered circumstances and not its full abolishment. Otherwise, the disputed provisions gave parties the opportunity to submit new, different evidence, which violated the adversarial principle.

The respondent, the Parliament of Georgia, emphasised that the Civil Procedure Code granted a judge certain discretionary authority to decide on the necessity of an oral hearing based on the circumstances of the particular action for retrial. The respondent also clarified that full reversal of a final judgement and reopening proceedings based on newly discovered circumstances served the principle of substantive fairness.

Firsttly, based on the analysis of the case-law of the Supreme Court of Georgia, the Constitutional Court established that the authority of a court to decide on the admissibility of the action for retrial due to newly discovered circumstances without oral hearing was not established by the disputed provision (First sentence of Article 429 of the Civil Procedure Code) but by Article 425 of the Civil Procedure Code and general provisions regulating a case hearing by a court of particular instance. These provisions were not the subject of the dispute of the constitutional complaint, therefore, this part of the complaint was not granted since the disputed provision did not have the challenged normative content.

Secondly, the Constitutional Court noted that the disputed provisions, according to which a final judgement could be reversed and proceedings could be reopened based on the action for retrial due to newly discovered circumstances at the court session without an oral hearing interfered with the complainant’s rights to a fair trial (Article 42 (1)) and of defence (42(3) of the Constitution of Georgia). Yet, the Constitutional Court emphasised that above mentioned rights are not absolute and can be restricted in order to achieve such legitimate aim as ensuring swift and efficient justice.

According to the Constitutional Court, deciding a case without conducting an oral hearing undoubtedly requires less time, human and financial resources and can be a proper mean to achieve above mentioned legitimate aim. Moreover, no other, less restrictive measure could be identified in this case. Yet, the Constitutional Court noted that the full retrial due to newly discovered circumstances was problematic for the complainant only when a party became aware of such circumstances and evidence which would have resulted in a decision more favourable to that party if they had been previously submitted to the court. According to the Constitutional Court, such retrial intrinsically involves a reassessment of established facts and identification of new evidence in the case, while a final judgement has important legal consequences and the party who won the case has the legitimate expectation for its effective enforcement. It is obvious that the retrial can significantly affect individual rights of the litigant in a given case since if being well-founded the action for retrial automatically leads to the reversal of a final judgement. Therefore, the Constitutional Court noted that the complainant’s interest for not reversing a final judgement without conducting the oral hearing was more important compared to achieving the legitimate aim of swift and effective justice. The disputed law (certain normative content of the first sentence of section 1 of Article 430 of the Civil Procedure Code) unjustifiably restricted the complainant’s right to a fair trial, which rendered it unconstitutional.

Thirdly, the Constitutional Court pointed out that the right to a fair trial implies the finality of judgement as an essential guarantee of the constitutional order and requires the legal consequences of such judgements to be fully acknowledged and enforced. Yet, the same constitutional right also protects the interests of an individual to question a final judgement and requests its re-examination if necessary circumstances exist. Therefore, the finality of a court decision is fully guaranteed until it is declared as erroneous in accordance with the procedure prescribed by law. It was observed by the Constitutional Court that the reversal of final judgement would violate the right to a fair trial of a litigant in a civil case if an erroneous nature of such judgement was not appropriately established.

The Constitutional Court further noted that newly discovered circumstances in a given case can, in fact, suffice to mandate the reversal of only a part of the final judgement and not of every judicial finding at hand. For example, a court in a given civil case could conclude that newly discovered circumstance was good enough to modify certain aspects of a court consideration (scope of a claim; type of an award, etc.) but did not mandate to reverse a final judgement as a whole. However, under the disputed provisions, provided that submission on newly discovered circumstances was declared well-founded, the final judgement was fully reversed, without an exception.

According to the Constitutional Court, it would have been a less restrictive measure if the Civil Procedure Code had established the rule whereby the judges were allowed on a case-by-case basis to determine, in the fair interests of the parties, the extent to which a final judgement was reversed. Therefore, the Constitutional Court found that the disputed provision (certain normative content of section 3 of Article 430 of the Civil Procedure Code) disproportionately restricted the complainant’s right to a fair trial and declared it unconstitutional. Moreover, the invalidation of the disputed provision was postponed till 30 April 2019 in order to give the Parliament of Georgia reasonable time for preparing new regulations pursuant to the standards established by the Constitutional Court.

Finally, pursuant to the case-law of the ordinary courts of Georgia the Constitutional Court established that the retrial due to newly discovered circumstances could be granted only when the court had already established that considering these circumstances the new decision would have been more favourable for the party who filed the action for retrial. Therefore, a retrial was necessary for the complainant - the party whose interests had been suffered due to the reversal of a final judgement. The complainant was the party to whom the disputed provision gave additional opportunity to win the case. Therefore, the disputed provision (Article 431 of the Civil Procedure Code) providing full retrial of the case had the nature of entitlement for the complainant and did not violate his right to a fair trial.