Oganova v Georgia  ECHR 25717/03 (13 November 2007)
The European Court of Human Rights in Oganova v Georgia found that, generally, the right to a fair hearing implies the right to an oral hearing but that, in certain special circumstances, it may be permissible for an appellate court to determine a matter by written submissions in the interests of the efficient administration of justice.
The applicant in this case had brought a civil claim in May 2002 in the Isani-Samgori district of Georgia against an individual for repayment of money the applicant had lent to them in 1998. A Georgian District Court allowed the claim at an oral hearing.
The respondent appealed the District Court’s decision on the basis that the applicant’s claim was time-barred. The Regional Court quashed the previous court’s decision and found that the applicant’s claim was in fact time-barred.
The applicant subsequently appealed to the Supreme Court of Georgia. The Supreme Court dismissed the applicant’s claim without an oral hearing, finding that the domestic law in question had been correctly applied.
The European Court of Human Rights was concerned with the extent to which the absence of an oral hearing at second or third instance may be justified as compatible with the right to a fair hearing.
The European Court found that, in this particular instance, the absence of an oral hearing was not in contravention of art 6(1) of the Convention.
The Court considered that the entitlement to a ‘fair and public hearing’ in art 6(1) necessarily implies a right to an ‘oral hearing’. The right to an oral hearing, however, is not absolute and the absence of an oral hearing may be compatible with the requirements of art 6 when the issue which is to be decided raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties’ written submissions.
The Court drew a distinction between the necessary elements of a fair hearing before a court of first instance, where there is ‘normally a right to an oral hearing’, and appellate courts where the absence of an oral hearing ‘may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance’.
In the present case, the special features of the proceedings before the Supreme Court, including that it was primarily concerned with questions of law, was not competent to decide on matters of fact, and provided opportunity for both parties to make extensive written submissions, justified the absence of an oral hearing, particularly given other ‘legitimate considerations’ such as ‘the demands of diligence and economy’.
Implications for the Victorian Charter
This decision may be of relevance to the interpretation and application of s 24 of the Victorian Charter, which enshrines the right to a fair and public hearing in both criminal and civil matters.
The decision confirms that, prima facie, the right to a fair hearing subsumes the right to an oral hearing. Pursuant to s 7 of the Charter, it is likely that this right is not, however, absolute. This decision suggests that it may be reasonable and permissible for an appellate court to limit parties to written submissions in the interest of aims such as the efficient administration of justice, provided that the parties were provided with the opportunity to make oral submissions at first instance and that the nature of the appellate proceedings is such that the absence of an oral hearing would not be incompatible with the right to a fair hearing itself.
Emma Wanchap, Human Rights Law Group, Mallesons Stephen Jaques