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FIRST
SECTION
CASE OF ROZHIN v. RUSSIA
(Application
no. 50098/07)
JUDGMENT
STRASBOURG
6 December
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Rozhin v.
Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
Linos-Alexandre Sicilianos,
Erik Møse,
judges,
and André Wampach,
Deputy Section
Registrar,
Having
deliberated in private on 15 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 50098/07)
against the Russian Federation, lodged with the Court
under Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Russian national, Mr Igor Yuryevich Rozhin (“the applicant”),
on 8 November 2007.
2. The
Russian Government (“the Government”) were represented by
Mr G. Matyushkin, Representative of the Russian Federation at the
European Court of Human Rights.
3. The
applicant alleged, in particular, that he had not been given an
opportunity to attend hearings before domestic courts and thus had
been unable to present his civil case effectively.
- On
18 May 2010 the President of the
First Section decided to give notice of the application to the
Government. It was also decided to rule on the
admissibility and merits of the application at the same time
(Article 29 § 1).
Further to the applicant’s request, the Court granted priority
to the application (Rule 41 of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1963 and lives in
Minusinsk.
- On
28 December 2001 the Tomsk Regional Court found the applicant guilty
of membership of an organised criminal group, several counts of
attempted aggravated murder, intentional destruction of property and
arms possession and sentenced him to fourteen years’
imprisonment, which he was sent to serve in correctional colony no.
2, Tomsk Region.
Proceedings concerning conditions of detention
- On
11 November 2004 the applicant brought an action with the Asino Town
Court, complaining of various violations of his rights by the
administration of correctional colony no. 2. In particular, he
complained that on a number of occasions in 2003 and 2004 the
director of the correctional colony had ordered him to be placed in a
punishment cell, which had entailed a serious worsening of the
general conditions of his detention and limitation or deprivation of
his rights as a detainee. The applicant also argued that the colony
authorities had unlawfully seized his writing utensils, and had
forbidden him to use the colony library and to purchase newspapers,
magazines and books. He further alleged that they had not allowed him
to have meetings with counsel and to make paid phone calls to his
relatives, counsel and the European Court of Human Rights. His
biggest grievance, however, was that the administration had refused
to post his complaints to various authorities in Russia and had
monitored or even intercepted his correspondence with the Court. The
applicant also requested that the Town Court ensure that he could be
present at a court hearing during the examination of his complaint.
- Following
a number of refusals by the Town Court to grant the applicant’s
request, and the subsequent revocation of those decisions by the
Tomsk Regional Court, on 3 October 2006 the Asino Town Court
granted leave to bring an action for an examination on the merits,
and set a preliminary hearing for 6 October 2006. Subsequent hearings
were held on 12 and 30 October 2006. The applicant was not
informed of either of those hearings. In fact, on 17 October 2006 he
was transferred to another correctional colony in the town of
Verkhneuralsk, Chelyabinsk Region, more than 1,500 km from his
previous place of detention.
- On
26 January 2007 the applicant was transferred to detention facility
no. 77/2 in Moscow.
- On
12 February 2007 the Asino Town Court dismissed the applicant’s
complaint, having found that either the restrictions on the
applicant’s rights had been lifted following an inquiry by
prosecution authorities or they had been warranted by the applicant’s
placement in the punishment cell, in view of numerous instances of
unlawful behaviour on his part, such as refusal to keep his cell
tidy, destruction of colony property, and so on. The applicant was
not brought to the hearing. Representatives of the colony
administration attended the hearings before the Town Court and made
oral submissions.
- By
a separate decision issued on 12 February 2007 the Asino Town Court
responded to the applicant’s request to be present at the
hearings. In particular, the Town Court held as follows:
“[The applicant], having been convicted by the
judgment of 28 December 2001 of the Tomsk Regional Court, is
currently serving his sentence. It appears from the case file
materials that he was transferred outside the Tomsk Region. [The
applicant] lodged a complaint about the actions of the head of
[correctional colony no. 2], Tomsk Region...; accordingly, his
complaint is being examined by the Asino Town Court within the civil
procedure. The Execution of Sentences Act of the Russian Federation,
in force at the material time, does not provide for an opportunity to
transfer convicts to [ensure] their participation in court hearings
in civil cases; therefore it is impossible for the court to ensure
[the applicant’s] presence at the hearings in the present civil
case.”
- The
applicant appealed, arguing, inter alia, that the Town Court
had unlawfully refused to ensure his presence at the hearings,
despite the fact that the majority of the circumstances in dispute
were exclusively within his personal knowledge and it was important
for the Town Court to hear both parties to the proceedings, the
applicant and the administration.
- At
a hearing on 22 May 2007, held in the applicant’s absence, the
Tomsk Regional Court upheld the judgment of 12 February 2007,
endorsing the Town Court’s reasoning, including that on the
subject of the applicant’s attendance.
II. RELEVANT DOMESTIC LAW
A. Provisions on attendance at hearings
- The Code of Civil Procedure of the Russian Federation
(CCP) provides that individuals may appear before a court in person
or may act through a representative (Article 48 § 1).
- The Penitentiary Code provides that convicted persons
may be transferred from a correctional colony to an investigative
unit if their participation is required as witnesses, victims or
suspects in connection with certain investigative measures (Article
77 § 1). The Code does not mention any possibility for a
convicted person to take part in civil proceedings, whether as a
plaintiff or a defendant.
- On several occasions the Constitutional Court has
dismissed as inadmissible complaints by detainees whose requests for
leave to appear were refused by civil courts. It reasoned that the
relevant provisions of the Code of Civil Procedure and the
Penitentiary Code did not, as such, restrict a detainee’s
access to court. The Constitutional Court has emphasised nonetheless
that an imprisoned person should be able to make submissions to a
civil court, either through a representative or in any other way
provided by law. If necessary, a hearing should be held at the
convict’s place of detention, or the court committed to hear
the civil case may instruct the court with territorial jurisdiction
over the convict’s place of detention to obtain his/her
submissions or to take any other procedural steps (decisions 478-O of
16 October 2003, 335-O of 14 October 2004 and 94-O of 21 February
2008).
B. Other relevant provisions of the CCP
- Under Articles 58 and 184 of the CCP a court may hold
a session elsewhere than in a court-house if, for instance, it is
necessary to examine evidence which cannot be brought to the
court-house.
- Article 392 of the CCP contains a list of situations
which may justify the reopening of a finalised case on account of
newly discovered circumstances. By a ruling of 26 February 2010 the
Russian Constitutional Court indicated that this Article should be
interpreted as, in principle, allowing a procedure to be launched to
have a final judgment re-examined on account of newly discovered
circumstances, such as the finding of a violation of the European
Convention on Human Rights in a given case by the European Court of
Human Rights.
THE LAW
I. THE GOVERNMENT’S REQUEST FOR THE APPLICATION TO
BE STRUCK OUT UNDER ARTICLE 37 OF THE CONVENTION
- The
Government sent the Court, in a letter dated 15 September 2010, a
unilateral declaration intended to resolve the issues raised by the
application in question.
- The
declaration read as follows:
“I, Georgy Matyushkin, the Representative of the
Russian Federation at the European Court of Human Rights, hereby
declare that the Russian authorities acknowledge [that] the right to
a fair hearing of [the] applicant’s civil case was breached.
The authorities are ready to pay the applicant ex
gratia a sum of 500 EUR as just satisfaction, as in Larin v.
Russia (application no. 15034/04, judgment of 20 May 2010).
The authorities therefore invite the Court to strike the
present case out of the list of cases. They suggest that the present
declaration might be accepted by the Court as ‘any other
reason’ justifying the striking out of the case of the Court’s
list of cases, as referred to in Article 37 § 1 (c) of the
Convention.
The sum referred to above, which is to cover any
pecuniary and non-pecuniary damage as well as costs and expenses,
will be free of any taxes that may be applicable. It will be payable
within three months from the date of notification of the decision
taken by the Court pursuant to Article 37 § 1 of the European
Convention on Human Rights. In the event of failure to pay this sum
within the said three-month period, the Government undertake to pay
simple interest on it from the expiry of that period until
settlement, at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage
points.
This payment will constitute the final resolution of the
case.”
- In
a letter of 17 January 2011 the applicant disagreed with the
Government’s unilateral declaration, noting that the striking
out of his application as the Government had requested would remove
the opportunity for him to restore his right to “a fair
hearing”, as the Russian law only provides for a reopening of
the proceedings in cases where the European Court has found a
violation of the Convention. He also argued that the amount of
compensation provided in the Government’s unilateral
declaration was too low.
- The
Court reiterates that in certain circumstances it may strike out an
application under Article 37 § 1 (c) on the basis of a
unilateral declaration by a respondent Government even if the
applicant wishes the examination of the case to be continued. To this
end, the Court will examine the declaration carefully in the light of
the principles emerging from its case-law, in particular the Tahsin
Acar judgment (see Tahsin Acar v. Turkey (preliminary
issue) [GC], no. 26307/95, §§ 74-77, ECHR 2003 VI;
Swedish Transport Workers Union v. Sweden (striking out), no.
53507/99, §§ 24-27, 18 July 2006; and Van Houten v. the
Netherlands (striking out), no. 25149/03, §§
34-37, ECHR 2005 IX).
- The
Court notes that the Government acknowledged in their unilateral
declaration that the civil proceedings in the applicant’s case
had not complied with the requirement of fairness, and proposed to
award him 500 euros (EUR). However, the Court observes that the
Government did not undertake to reopen the domestic proceedings, or
to ensure that the new proceedings met all the requirements of
fairness set out in Article 6 of the Convention. In this regard, the
Court notes that the nature of the alleged
violation in the present case is such that it would not be possible
to eliminate the effects of the infringement of the applicant’s
right to a fair hearing without reopening the domestic proceedings.
Moreover, the Court observes that the domestic law allows the
reopening of proceedings in the event of a finding of a violation of
the Convention by the Court. However, it appears that there is no
provision allowing for the reopening of domestic proceedings on
account of a decision by the Court to strike a case out of the list
(see paragraph 18 above).
- Having
regard to the content of the Government’s unilateral
declaration, the Court finds that the Government have failed to
establish a sufficient basis for a finding that respect for human
rights as defined in the Convention and its Protocols does not
require the Court to continue its examination of the case (compare
Hakimi v. Belgium, no. 665/08,
§ 29, 29 June 2010; Kessler v. Switzerland,
no. 10577/04, § 24, 26 July 2007; and, most recently, Pirali
Orujov v. Azerbaijan, no. 8460/07, §§
27-32, 3 February 2011 ).
- Therefore,
the Court refuses the Government’s request to strike the
application out of its list of cases under Article 37 of the
Convention, and will accordingly pursue its examination of the
admissibility and merits of the case.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant
complained that both the Asino Town Court and the Tomsk Regional
Court had refused to ensure his attendance. He relied on Article 6 §
1, which provided, in so far as relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public ... hearing
... by [a] ... tribunal ...”
A. Submissions by the parties
- The
Government accepted that there had been a violation of the
applicant’s right to a fair determination of his civil case.
- The
applicant maintained his complaint.
B. The Court’s assessment
1. Admissibility
- The
Court notes at the outset, and it is not in dispute between the
parties, that at the national level there was “a genuine and
serious dispute” over a “civil right” which could
be said, at least on arguable grounds, to be recognised under
domestic law. The Court therefore considers that the applicant’s
complaint concerning the conditions of his detention and restrictions
to which he was subjected as a result of his detention in
correctional colony no. 2 is compatible ratione materiae with
the provisions of the Convention, since it relates to Article 6 under
its civil head (see Enea v. Italy [GC], no. 74912/01, §§
101-107, 17 September 2009).
- The
Court further considers that this part of the application is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention and that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
- The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made
or evidence adduced by the other party and to present his case under
conditions that do not place him or her at a substantial disadvantage
vis-à-vis his or her opponent (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 39,
3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274).
- Article
6 of the Convention does not expressly provide for a right to a
hearing in one’s presence; rather, it is implicit in the more
general notion of a fair trial that a criminal trial should take
place in the presence of the accused (see, for example, Colozza v.
Italy, 12 February 1985, § 27, Series A no. 89).
However, in respect of non-criminal matters there is no absolute
right to be present at one’s trial, except in respect of a
limited category of cases, such as those where the personal character
and manner of life of the person concerned is directly relevant to
the subject matter of the case, or where the decision involves the
person’s conduct (see, for example, Kabwe and Chungu v. the
United Kingdom (dec.), nos. 29647/08 and 33269/08, 2
February 2010).
- The
Court has previously found a violation of the right to a “public
and fair hearing” in several cases against Russia, in which a
party to civil proceedings was deprived of an opportunity to attend
the hearing because of belated or defective service of the summons
(see Yakovlev v. Russia, no. 72701/01, §§ 19
et seq., 15 March 2005; Groshev v. Russia, no. 69889/01,
§§ 27 et seq., 20 October 2005; and Mokrushina v.
Russia, no. 23377/02, 5 October 2006). It also found a violation
of Article 6 in a number of cases where Russian courts refused leave
to appear to imprisoned applicants who had wished to make oral
submissions on their civil claims. For instance, in the case of
Kovalev v. Russia (no. 78145/01, § 37, 10 May
2007), despite the fact that the applicant in that case was
represented by his wife, the Court considered it relevant that his
claim of ill-treatment by the police had been largely based on his
personal experience and that his submissions would therefore have
been “an important part of the plaintiff’s presentation
of the case and virtually the only way to ensure adversarial
proceedings”. In the case of Khuzhin and Others v. Russia
(no. 13470/02, §§ 53 et seq., 23 October 2008) the
Court found that, by refusing to ensure that the imprisoned
applicants could attend hearings, and by failing to consider other
legal means of ensuring their effective participation in the
defamation proceedings, the Russian courts had violated the principle
of equality of arms. A similar conclusion was reached by the Court in
other cases against Russia where authorities had failed to secure the
imprisoned applicants’ appearance before civil courts examining
their complaints about the conditions of their detention (see, for
instance, Shilbergs v. Russia, no. 20075/03, §§ 107-113,
17 December 2009; Artyomov v. Russia, no. 14146/02, §§
204-208, 27 May 2010; and Roman Karasev v. Russia,
no. 30251/03, §§ 65-70, 25 November
2010). In the cases cited above the Court consistently held
that, given the nature of the applicants’ claims which were, to
a significant extent, based on their personal experience, the
effective, proper and satisfactory presentation of the case could
have only been secured by the applicants’ personal
participation in hearings. The applicants’ testimony describing
the conditions of detention of which only they themselves had
first-hand knowledge would have constituted an indispensable part of
the plaintiffs’ presentation of the case.
- The
Court notes that the Government acknowledged that there had been a
violation of Article 6 § 1 of the Convention in the applicant’s
case. Seeing no reason to disregard the Government’s admission,
the Court finds that there has been a violation
of that provision on account of the authorities’ failure to
afford the applicant an adequate opportunity to present his case
effectively before the civil courts.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
Court has examined the other complaints submitted by the applicant.
However, having regard to all the material in its possession, and in
so far as these complaints fall within the Court’s competence,
it finds that they do not disclose any appearance of a violation of
the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application must be rejected as
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed compensation in respect of
non-pecuniary damage, leaving the determination of the amount of
compensation to the Court.
- Relying
on the Court’s judgment in the case of Larin v. Russia
(no. 15034/02, § 62, 20 May 2010), the Government
considered that the amount of 500 euros (EUR) was sufficient
compensation for the non-pecuniary damage sustained by the applicant.
- The
Court, however, is of the opinion that the applicant must have
suffered frustration and a feeling of injustice as a consequence of
the courts’ refusal to secure his attendance at the hearings.
It considers that the non-pecuniary damage suffered by the applicant
cannot be adequately compensated by the finding of a violation alone.
In the circumstances of the present case, the Court considers that
the applicant should be awarded EUR 1,000
in respect of non-pecuniary damage.
- The Court further reiterates that when an applicant
suffered the infringement of his rights guaranteed by Article 6 of
the Convention, he should, as far as possible, be put in the position
in which he would have been had the requirements of that provision
not been disregarded, and that the most appropriate form of redress
would, in principle, be
the reopening of the proceedings, if requested (see,
mutatis mutandis, Öcalan v. Turkey [GC],
no. 46221/99, § 210 in fine, ECHR 2005-IV, and Popov
v. Russia, no. 26853/04, § 264, 13 July
2006). The Court is particularly mindful, in this
connection, that by virtue of the ruling of 26 February 2010 by
the Russian Constitutional Court, Article 392 of the Russian Code of
Civil Procedure must be interpreted as providing that civil
proceedings may be re opened if the Court finds a violation of
the Convention (see paragraph 18 above).
B. Costs and expenses
- Without
indicating a sum or providing documents in support of his claim, the
applicant also claimed compensation for costs
and expenses incurred before the domestic courts and the Court.
- The
Government did not comment.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the applicant’s failure to indicate the amount of costs
and expenses incurred and to provide documents which could have
enabled such a calculation of the sum to be made, the Court rejects
the claim.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the
applicant’s attendance in the civil proceedings admissible and
the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Nina
Vajić
Deputy Registrar President
