EUROPEAN COURT OF HUMAN RIGHTS
CASE OF YEVDOKIMOV AND OTHERS v. RUSSIA
(Applications nos. 27236/05, 44223/05, 53304/07, 40232/11, 60052/11, 76438/11, 14919/12, 19929/12, 42389/12, 57043/12 and 67481/12)
<*> 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 Yevdokimov and Others v. Russia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
Luis Guerra, President,
Branko Lubarda, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 26 January 2016,
Delivers the following judgment, which was adopted on that date:
- The case originated in eleven applications (nos. 27236/05, 44223/05, 53304/07, 40232/11, 60052/11, 76438/11, 14919/12, 19929/12, 42389/12, 57043/12 and 67481/12) 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 eleven Russian nationals («the applicants»), whose names and the dates on which they introduced their applications are set out in Annex I.
- Some of the applicants were represented by lawyers whose names are listed in Annex II. The applicants Mr Makhov, Mr Gromovoy and Mr Martirosyan had been granted legal aid. The Russian Government («the Government») were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights.
- The applicants complained, in particular, that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties.
- The circumstances of the cases
- At the material time all the applicants were detained in Russian penal facilities. Where relevant, the dates of their detention are listed in Annex I.
- While in detention, the applicants Mr Yevdokimov, Mr Rezanov, and Mr Morozov lodged defamation claims against private third parties; the applicants Mr Makhov, Mr Resin, Mr Anikanov, Mr Lebetskiy, Mr Gromovoy, Mr Gordeyev and Mr Vinokhodov brought claims seeking compensation for the allegedly inhuman conditions of their detention; and the applicant Mr Martirosyan lodged a civil claim for compensation, alleging that the criminal proceedings had been instituted unlawfully.
- None of the applicants were able to attend the hearings at which their claims were examined. The domestic courts refused them the possibility to be present at the hearing, on the ground that there was no domestic legal provision for bringing detainees to courts. In particular, they quoted Article 77.1 of the Code on the Execution of Sentences (see paragraph 11 below) and the relevant provisions of the Code of Civil Procedure. In the other cases, the issue of the applicants’ presence in court was not addressed.
- The applicants appealed, raising the question of their appearance in court in the appeal statement. Some submitted a separate request seeking leave to appear before the appeal court. The appeal courts either dismissed the applicants’ arguments or concluded that their absence from the court was in line with the legislation and did not contravene the principle of fairness.
- The applicants’ claims were refused at two levels of jurisdiction. The dates of the final judgments are set out in Annex I.
- Relevant domestic law and practice
- Code of Civil Procedure
- The relevant provisions of the Code read as follows:
Article 48: Representation in the proceedings
«1. Citizens may conduct their business in court in person or through a representative…»
Article 49: Individuals who can act as representatives in court
«Any legally capable individual… who has a duly formalised authority to conduct business in court may be a representative before the court…»
Article 50: Court-appointed representatives
«The court may appoint a lawyer to represent a defendant who is not represented and whose place of residence is unknown. The court may also appoint a lawyer in other situations set out in federal laws…»
Article 62: Letters of request
«1. If the trial court needs to obtain evidence which is located in a different town or region, it may request that the competent court carry out certain procedural acts.
- The decision on sending a letter of request shall state briefly the nature of the dispute, information about the parties, including their place of residence or stay, the facts that need to be ascertained and the evidence to be collected by the requested court…»
Article 63: Procedure for fulfilling the request
«1. The request must be fulfilled in a hearing in accordance with the requirements of the present Code. The parties must be notified of the time and place of the hearing but their absence shall not prevent the request from being fulfilled…»
Article 155: Court hearing
«Civil cases shall be examined in a hearing upon mandatory provision of information to the parties about the time and place of the hearing.»
Article 155.1: Participation in the hearing by means of a video-conference <*>
<*> This article was inserted by Law no. 66-FZ of 26 April 2013.
«1. If the court has facilities for organising a video-conference, the parties and their representatives, as well as witnesses, experts, specialists and interpreters, can take part in the hearing by means of a video-conference. The video-conference is organised at the initiative of the court or at the request of the parties.
- The parties and their representatives… participate in the hearing by means of a video-conference using the video-conferencing equipment that is installed in the competent courts at their place of residence, stay or location. For persons who are in remand centres or in penitentiary facilities, the equipment installed in such facilities can be used…»
Article 157: Direct, oral and continuous character of civil proceedings
«1. The court must take direct cognizance of the evidence in the case, including by hearing the parties and third parties, witness testimony…»
- Proceedings are conducted orally before the same judicial formation…»
Article 160: Opening of the hearing
«At the scheduled time the presiding judge opens the hearing and announces the case to be examined.»
Article 161: Checking the attendance of the parties
«1. The clerk to the court reports to the bench which of the summonsed persons are in attendance, whether the absent persons have been notified [of the hearing] and what information is available about the reasons for their absence.»
Article 166: Decisions on motions lodged by the parties
«Motions by the parties relating to the proceedings in the case are decided upon by means of a judicial decision, after the views of the other participants have been heard.»
Article 167: The consequences of a failure to attend the hearing by the parties or their representatives
«1. The participants must inform the court of the reasons for their failure to attend and produce evidence of valid reasons.
- If there is no information in the case file that the absent person has been notified [of the hearing], the hearing must be adjourned.
If the parties have been notified of the time and place of the hearing, the court adjourns the proceedings if it finds that they have valid reasons for being absent.
- The court may still examine the case in the absence of a party that was notified of the time and date of the hearing if it finds that the party failed to explain the reasons for its absence or does not have valid reasons for the absence.»
Article 327: Procedure for examining cases in the appellate court <*>
<*> In force since 1 January 2012.
«1. The appellate court notifies the parties about the time and place of the appellate hearing.
The appellate court carries out a new examination of the case in a hearing in accordance with the rules of procedure in the first-instance court…
The parties, their representatives… may participate in the hearing by means of a video-conference in accordance with the procedure set out in Article 155.1…»
Article 350: Hearings in the court of cassation <*>
<*> In force before 1 January 2012.
«Hearings in the court of cassation shall be conducted in accordance with the rules of the present Code that govern the conduct of a hearing before the first-instance court…»
Article 392: Grounds for reviewing judgments that have come into force (on account of new or newly discovered circumstances)
«2. Judicial decisions that have come into force may be reviewed in the following cases:
(2) [on account of] new circumstances listed in paragraph 4 of this Article which emerged after the adoption of the judicial decision and which have significant importance for the correct determination of the matter.
- New circumstances include:
(4) the finding of a violation of the European Convention on Human Rights by the European Court of Human Rights with regard to the specific case that was examined by the court, provided that the applicant lodged an application with the European Court of Human Rights in connection with the decision in that case…»
- Legal Aid Act (Law no. 324-FZ of 21 November 2011)
- Section 6(1)(3) establishes that legal aid can in particular take the form of legal representation of individuals before the courts. Section 20(1)(1) provides that indigent persons whose household income is below the regional minimum subsistence level are eligible for legal aid. Section 20(3) describes the categories of disputes in which the State may provide legal aid for representation of individuals before the courts. The disputes listed concern immovable property, alimony, compensation for health damage, legal capacity, reparation for political repression, and mandatory commitment to a psychiatric hospital.
- Code on the Execution of Sentences
- Article 77.1 provides that a convicted person may be transferred from a correctional colony to a temporary detention facility if his or her participation is required as a witness, a victim or a suspect in connection with certain investigative measures in a criminal case. It does not mention the possibility for a convicted person to take part in civil proceedings, whether as a claimant or a defendant.
- Case-law of the Russian courts
- Constitutional Court of the Russian Federation
- The Constitutional Court has on several occasions examined complaints by incarcerated individuals whose requests to appear in civil proceedings had been refused by the courts. It declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Code on the Execution of Sentences did not, as such, restrict the convicted person’s access to court or undermine the fairness of the proceedings. It emphasised, nonetheless, that the detainee should be able to make submissions to the court, either through a representative or in some other way provided for by law, such as by means of a video link. If necessary, the hearing may be held at the location where the convicted person is serving his or her sentence or, alternatively, the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the detainee’s submissions and carry out any other procedural measures (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, no. 94-O-O of 21 February 2008 and no. 576-O-P of 19 May 2009).
- The relevant part of decision no. 94-O-O of 21 February 2008 read as follows:
«It must be borne in mind that a person who is in detention and who is a party to a civil case must be able to exercise his rights: the judge at the preliminary stage… must send him a letter setting out his rights, including the right to appoint a representative; he should be served in advance with a copy of the claim form… and other documents, including judicial decisions; he should be allowed sufficient time in view of his situation to appoint a representative, to prepare his legal position and to submit it to the court…»
- In decision no. 576-O-P of 19 May 2009, the Constitutional Court held:
«[Article 77.1 of the Code on the Execution of Sentences] does not prevent the court from deciding that the detainee’s presence at the hearing is mandatory as long as it considers that the interests of justice and of the protection of human rights so require.
…[T]here is an obligation on the court which determines the issue of the detainee’s personal participation at the hearing… on his civil claim, to take into account all the relevant circumstances, including the [legal] character of the constitutional rights involved and the need to take oral evidence from the detainee at the hearing, and adopt a reasoned decision as to means of ensuring [his] participation in the proceedings.»
- Supreme Court of the Russian Federation
- In Resolution no. 21 of 27 June 2013 on the «Application of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and its Protocols by the courts of general jurisdiction», the Plenary Supreme Court issued the following guidance to the courts:
«16. It follows from Article 6 § 1 of the Convention, as interpreted by the European Court of Human Rights, that an imprisoned person has the right to participate in hearings of his civil case.»
- Joinder of the applications
- The Court notes that all the applicants complained that they had been unable to attend the hearings in the civil proceedings to which they were parties. Having regard to the similarity of the applicants’ grievances, the Court is of the view that, in the interests of the proper administration of justice, the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court.
- Alleged violation of Article 6 of the Convention
- The applicants complained that their right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the domestic courts’ refusal of their requests to appear in court. Article 6 § 1 reads in the relevant part as follows:
«In the determination of his civil rights and obligations… everyone is entitled to a fair and public… hearing… by [a]… tribunal…»
- Submissions by the parties
- In the cases of Mr Yevdokimov and Mr Rezanov, Mr Morozov, Mr Anikanov and Mr Vinokhodov, the Government denied that there had been a violation of Article 6 § 1. They submitted that the Code on the Execution of Sentences made no provision for the transfer and attendance of incarcerated litigants at any proceedings to which they were parties other than criminal proceedings. Transferring a prisoner between the custodial facility and the civil court was a complicated business given the distance sometimes involved. In the case of Mr Yevdokimov and Mr Rezanov, they were serving their sentences in Barnaul and the court hearing their defamation claim was in Irkutsk, more than 1,300 kilometres away. The Government pointed out that all the applicants had been duly notified of the hearing dates and had received copies of all procedural documents. They could also have made written submissions or appointed a representative for the defence of their position. The Government argued that in Mr Morozov’s case, since the other party had not been present at the appeal hearing, the principle of equality of arms had not been breached. Lastly, Mr Vinokhodov had been present at the preliminary hearing of his case but had not expressed a wish to take part in the subsequent proceedings.
- In the cases of Mr Makhov, Mr Gordeyev, Mr Resin (two applications), Mr Lebetskiy, Mr Gromovoy and Mr Martirosyan, the Government acknowledged a violation of Article 6 § 1 on account of the domestic authorities’ failure to secure the applicants’ right to appear in person before the civil courts.
- The applicants maintained that their exclusion from the proceedings had undermined the adversarial nature of the latter and placed them at a disadvantage their opponents. They had been unable to know about and comment on the evidence submitted by the other parties or ask the court to hear oral evidence in support of their position. Mr Vinokhodov pointed out that he had wished to participate in the proceedings and had reasonably expected that he would be allowed to do so because the court had allowed him to attend the preliminary hearing. He had not been informed that the subsequent hearings would take place in his absence. Nor had he been given an opportunity to retain counsel or to ask someone else to represent him before the court.
- The Court considers that this complaint 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.
- General principles
- The Court reiterates that Article 6 of the Convention does not guarantee the right to personal presence before a civil court but enshrines a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights (see Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59 — 60, ECHR 2005-II). Thus, the questions of personal presence, the form of the proceedings — oral or written — and legal representation are interlinked and must be analysed in the broader context of the «fair trial» guarantee of Article 6. The Court should establish whether the applicant, a party to the civil proceedings, had been 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 did not place him at a substantial disadvantage his opponent (see Siwiec v. Poland, no. 28095/08, § 47, 3 July 2012; Larin v. Russia, no. 15034/02, §§ 35 — 36, 20 May 2010; 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).
- As regards the form of proceedings, the right to a «public hearing» under Article 6 § 1 has been interpreted in the Court’s established case-law to include entitlement to an «oral hearing». Nevertheless, the obligation under this Article to hold a hearing is not an absolute one. An oral hearing may not be necessary due to the exceptional circumstances of the case, for example when it raises no questions of fact or law which cannot be adequately resolved on the basis of the case file and the parties’ written observations (see Koottummel v. Austria, no. 49616/06, § 19, 10 December 2009; Pursiheimo v. Finland (dec.), no. 57795/00, 25 November 2003; v. Sweden, no. 28394/95, § 37, 12 November 2002; v. Turkey [GC], no. 36590/97, § 47, ECHR 2002-V). Also, provided that an oral hearing has been held at first instance, a less strict standard applies to the appellate level, at which the absence of such a hearing may be justified by the special features of the proceedings at issue. Thus, leave-to-appeal proceedings and proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6, even if the appellant was not given an opportunity of being heard in person by the appeal or cassation court (see Miller v. Sweden, no. 55853/00, § 30, 8 February 2005).
- In cases where the applicant was in custody, the Court has accepted that, in view of the obvious difficulties involved in transporting prisoners from one location to another, representation of the detained applicant by a lawyer would not be in breach of the principle of equality of arms provided that the claim was not based on the applicant’s personal experience (see, for example, Mukhutdinov v. Russia, no. 13173/02, § 116, 10 June 2010, in which a claim for damages against the applicant had been brought by the victims of his crimes; Kozlov v. Russia, no. 30782/03, §§ 44 — 45, 17 September 2009, which concerned a housing dispute; and Fidler v. Austria (dec.), no. 28702/95, 23 February 1999, in which the dispute concerned the extent of the applicant’s maintenance obligations).
- By contrast, the personal participation of the litigant was held to be necessary from the standpoint of Article 6 in cases where the character and way of life of the person concerned was directly relevant to the subject matter of the case or where the decision involved the person’s conduct or experience. The Court thus found a violation of Article 6 in cases in which the nature of the civil dispute was such as to justify the claimant’s personal presence before the court, irrespective of whether or not he had been represented at the hearing (see, as regards claims for compensation for inadequate conditions of detention: Insanov v. Azerbaijan, no. 16133/0, § 145, 14 March 2013; Skorobogatykh v. Russia, no. 4871/03, § 64, 22 December 2009; and Shilbergs v. Russia, no. 20075/03, § 111, 17 December 2009; see also Gryaznov v. Russia, no. 19673/03, § 49, 12 June 2012, and Kovalev v. Russia, no. 78145/01, § 37, 10 May 2007 concerning the applicant’s ill-treatment claim against the police; Mokhov v. Russia, no. 28245/04, §§ 46 — 47, 4 March 2010, and Helmers v. Sweden, 29 October 1991, § 38, Series A no. 212-A concerning a defamation claim; Sokur v. Russia, no. 23243/03, §§ 33 — 35, 15 October 2009, and , cited above, § 48 concerning a dispute about the quantum of damages claimed as a result of unlawful detention and prosecution; see also Westlund v. Iceland, no. 42628/04, § 41, 6 December 2007).
- Lastly, the Court reiterates that legal assistance in civil cases is not mandatory. Only where a party would not receive a fair hearing without the provision of legal aid, with reference to all the facts and circumstances of the case, will Article 6 require legal aid, including the assistance of a lawyer (see Siwiec, cited above, § 55; Larin, cited above, §§ 53 — 54; Steel and Morris, cited above, § 61; and Airey v. Ireland, 9 October 1979, § 26, Series A no. 32). Moreover, where an applicant’s request to appear was refused and the option of legal aid was not available to him, the domestic courts must at least afford him sufficient time to make the necessary arrangements for his representation. They must in particular verify whether, in view of the time the applicant has already spent in detention, he still has someone willing to represent him before the domestic courts and, if so, whether he has been able to contact that person and give him authority to act (see Mitkus v. Latvia, no. 7259/03, § 114, 2 October 2012; Roman Karasev v. Russia, no. 30251/03, § 63, 25 November 2010; Larin, cited above, §§ 55 — 56; Shilbergs, cited above, § 108; Khuzhin and Others v. Russia, no. 13470/02, § 107, 23 October 2008).