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FIRST
SECTION
CASE OF
KOVALEV v. RUSSIA
(Application
no. 78145/01)
JUDGMENT
STRASBOURG
10 May
2007
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 Kovalev v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Mr C.L. Rozakis, President,
Mr L.
Loucaides,
Mrs N. Vajić,
Mr A. Kovler,
Mrs E.
Steiner,
Mr K. Hajiyev,
Mr D. Spielmann, judges,
and
Mr S. Nielsen, Section Registrar,
Having
deliberated in private on 5 April 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 78145/01) 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 Yevgeniy Vyacheslavovich
Kovalev (“the applicant”), on 4 September 2001.
- The
applicant was represented by Ms K. Kostromina, a lawyer practising in
Moscow. The Russian Government (“the Government”) were
represented by Mr P. Laptev, Representative of the Russian Federation
at the European Court of Human Rights.
- The
applicant alleged, in particular, a violation of Article 6 § 1
of the Convention on account of the court's refusal to summon him
from prison to take part in the proceedings concerning his
allegations of ill-treatment by the police.
- By
a decision of 23 March 2006 the Court declared the application partly
admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1973 and lives in Aksay, Rostov Region.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- On
13 November 2000 the applicant was arrested by three police officers
and taken to Aksay police station, where he was allegedly beaten up.
He was detained on remand.
- On
16 November 2000 the applicant was charged with a robbery committed
as part of an organised gang. On the same day the Azov District
Prosecutor authorised the applicant's pre-trial detention, and the
applicant spent nine months in pre-trial detention facility IZ-61/1
in Rostov.
- In
July 2001 the applicant wrote a letter, apparently a complaint, to
the Rostov Regional Prosecutor's Office and submitted it to the
administration of the detention facility for posting.
- On
22 August 2001 the Rostov Regional Court began its examination of the
criminal charge against the applicant and his four co-accused. The
applicant and his three co-accused contested their pre-trial
testimonies as having been given under duress, but the court
dismissed the allegations.
- On
30 August 2001 the applicant was found guilty of participation in an
organised armed gang and of two armed robberies, and was sentenced to
eight and a half years' imprisonment. His accomplices were convicted
as well.
- On
17 September 2001 the Rostov Chief
Prison Directorate, attached to the Ministry of Justice of the
Russian Federation, informed the applicant that the administration of
detention facility IZ-61/1 had unlawfully delayed his July 2001
letter to the prosecutor's office by about a month, and that
disciplinary proceedings had been taken against those responsible.
- On
19 February 2002 the applicant's conviction was upheld by the Supreme
Court of the Russian Federation.
- On
an unspecified date the applicant's wife brought a civil claim. On
behalf of the applicant she challenged the acts of the police,
claiming that her husband had been unlawfully arrested and
ill-treated. She claimed damages of 2,900,000 Russian roubles in the
applicant's favour. She also requested that the applicant be summoned
from the prison to participate in the proceedings in person. On 19
December 2001 the Rostov Regional Court confirmed her standing as a
plaintiff in the civil proceedings and decided that the claim should
be accepted for examination in the form in which it was lodged.
- On
13 March 2002 the Aksay Town Court held a hearing in the proceedings,
the applicant's wife stating the case with the assistance of a human
rights NGO. At the hearing they reiterated the request for the
applicant to be summoned to the courtroom, but the court ruled that
the applicant's presence was not necessary and refused to order his
attendance. The court held that it had no jurisdiction to examine the
complaint relating to the arrest and detention, as these matters were
covered by the rules of criminal procedure, and held that in any
event the complaints were unsubstantiated. The court dismissed all
the claims as a whole.
- The
applicant's wife lodged an appeal, arguing that the court had not
specified on what grounds it had dismissed the complaint alleging
ill-treatment. She requested an expert examination and a full
judicial examination of the circumstances surrounding the applicant's
arrest. As a separate ground of appeal she complained about the
court's refusal to summon the applicant and to have him heard in
person.
- On
17 April 2002 the Rostov Regional Court dismissed the appeal. As
regards the applicant's absence from the hearing, the court held that
he had made this complaint in person at the hearing in the criminal
case, and that there was therefore no need for his oral submissions
to be heard again. As to the substance of the complaint alleging
ill-treatment, it upheld the first-instance judgment, stating that
the allegations of ill-treatment were not substantiated by any
evidence.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that he had not been summoned to appear in court
for the hearing of the case concerning his alleged ill-treatment by
the police. He relied on Article 6 § 1 of the Convention, which
reads, in so far as relevant:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal...”
A. The parties' submissions
- The
Government responded to this complaint by making the following
statements:
“As to [the applicant's] absence at the hearing
devoted to examination of the complaint against the actions of the
[police officers] lodged by his wife, so far as [the applicant] was
held in custody at the time of this complain[t] being filed and its
examination, his wife participated in the court hearings being
authorised by [the applicant] and acting on his behalf. According to
the Supreme Court of the Russian Federation, there was no violation
of [the applicant's] right to direct participation in the examination
of the complaint in the court.
It seems necessary to emphasise that the [Aksay Town
Court] dismissed the complaint of Mrs Kovaleva based not on the
merits but rather on procedural grounds...
The applicant's wife Mrs. Kovaleva O.V. seized the
[Aksay Town Court] with a complaint on behalf of her husband, [the
applicant], alleging that her husband suffered an ill-treatment on
the part of police officers of the Aksayskiy Department of Interior
of the Rostov Region. While considering the above complaint the
[Aksay Town Court] examined the question of the applicant's summons
and his examination at the court's session. Thus, the [Aksay Town
Court] decided to examine the matter in the applicant's absence... In
deciding so the [Aksay Town Court] parted from the following. The
circumstances referred to by Mrs Kovaleva O.V. could have been
verified by checking explanations given by other persons
participating in the proceedings as well as by examining [the
applicant's] case file...”
- The
Government further referred to the ruling of the court of appeal
which had upheld the first-instance court's refusal to summon the
applicant, finding that it had been justified in the circumstances.
- The
applicant maintained his complaint, arguing that the civil courts had
failed to conduct a fair hearing by depriving him of the possibility
to make oral submissions in support of his allegations of
ill-treatment.
B. The Court's assessment
1. Victim status
- The
Court notes, firstly, that it is not in dispute between the parties
whether the applicant may claim to be the victim of a violation of
Article 6 in the proceedings which ended on 17 April
2002. Nevertheless, noting that he was not a
plaintiff in these proceedings, the Court considers it necessary to
examine this issue before entering into the merits of his complaint.
- The
Court observes that the claim at issue was
brought by the applicant's wife and that her standing as a party to
the proceedings was expressly confirmed by the Rostov Regional
Court on 19 December 2001. Having accepted the wife's standing, the
courts, however, did not limit the scope of the case to the aspects
relating to her personally. In this connection it is important to
note that her claims were accepted for examination in the form in
which they were submitted, namely whether the police's acts against
the applicant should be found unlawful and damages should be
awarded in his favour. Furthermore, as follows from the
Government's observations, this claim was regarded under domestic law
as having been lodged under the implicit authority of the applicant
and on his behalf. The Court sees no need to disregard the
interpretation offered by the domestic authorities and considers it
established that it was the applicant's rights and interests that
were primarily at stake in the instant dispute, rather than his
wife's.
- It
follows that the applicant can claim to be the
victim of a violation of Article 6 § 1.
2. Applicability of Article 6
- The
Court will next consider whether the proceedings at stake constituted
a determination of the applicant's civil rights and obligations.
According to its case-law, the concept of “civil rights and
obligations” cannot be interpreted solely by reference to the
domestic law of the respondent State, but must be considered
“autonomous” within the meaning of Article 6 § 1 of
the Convention (see, among other authorities, König v.
Germany, judgment of 28 June 1978, Series A no. 27, pp. 29-30, §§
88 89; Baraona v. Portugal, judgment of 8 July 1987,
Series A no. 122, pp. 17-18, § 42; and Ferrazzini v. Italy
[GC], no. 44759/98, § 24, ECHR 2001-VII).
- To
conclude that the proceedings in the present case concerned a “civil”
right within the meaning of Article 6, the Court finds it sufficient
that the subject matter of the applicant's action was pecuniary and
that the outcome of the domestic proceedings was decisive for his
right to compensation (see Göç v. Turkey [GC], no.
36590/97, § 41, ECHR 2002 V; see also, mutatis
mutandis, Georgiadis v. Greece, judgment of 29 May
1997, Reports of Judgments and Decisions 1997-III, pp. 958-59,
§§ 30-35, and Werner v. Austria, judgment of
24 November 1997, Reports 1997-VII, p. 2508, § 38).
- Finally,
there is no indication that the dispute in question was not genuine
and serious (see, by contrast, Skorobogatykh v. Russia (dec.),
no. 37966/02, 8 June 2006).
- Article
6 § 1 of the Convention is accordingly applicable to the
proceedings in the instant case.
3. Compliance with Article 6 § 1
- While
the parties in their submissions did not refer to any specific aspect
of Article 6 § 1, the applicant's complaint about his inability
to participate in the proceedings may be interpreted in the light of
the Court's existing case-law as allegations of a lack of public
hearing and of a failure to ensure adversarial proceedings.
- As
regards the public nature of the hearing, the Court reiterates that
this guarantee was intended to protect litigants from the risk of
justice being administered in secret without public scrutiny; it was
also a means of fostering public confidence in the courts, since it
made the administration of justice more transparent and contributed
to a fair trial, a feature of any democratic society (see, among
other authorities, Tierce and Others v. San Marino, nos.
24954/94, 24971/94 and 24972/94, § 92, ECHR 2000 IX, and
Axen v. Germany, judgment of 8 December 1983, Series A no. 72,
p. 12, § 25).
- The Court has previously found that depriving the
parties to civil proceedings of an opportunity to attend the hearing,
as in cases where there has been a failure to summon the litigants,
may infringe the right to a “public and fair hearing”
(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
(dec.), no. 23377/02, 5 October 2006). In these cases the courts
conducted proceedings de facto in writing, having incorrectly
assumed that the parties had waived their statutory right to be
present at the hearing.
- In
the present case, however, the Court observes that the proceedings
before the Aksay Town Court, and subsequently the Rostov Regional
Court, were both oral and public. The applicant's wife was present in
both instances and was able to plead the case in the oral
proceedings. Taking into account her standing as a plaintiff in those
proceedings, it cannot be argued that the hearings were conducted in
the absence of a party to the dispute. Furthermore, the NGO
representative assisting the applicant's wife also made oral
submissions before the courts. Had the applicant not been in prison
there would have been nothing to stop him from attending the hearing
and making submissions in person. It follows that notwithstanding the
applicant's absence from the courtroom, the hearings in the instant
case were public within the meaning of Article 6 § 1.
- The
Court reiterates, next, that the right to a fair hearing, in
particular the principle of adversarial proceedings and equality of
arms, requires that each party be given a reasonable opportunity to
have knowledge of and comment on the observations filed or evidence
adduced by the other party and to present his case under conditions
that do not place him at a substantial disadvantage vis-à-vis
his opponent (see X v. Austria, no. 5362/72, Commission
decision of 14 December 1972, Collection 42, p. 145, and
McMichael v. the United Kingdom, judgment of 24 February 1995,
Series A no. 307 B, §§ 17 and 27). Therefore, the
refusal to hear a witness may, under certain circumstances, run
counter to that principle (see Karting v. Netherlands, no.
12087/86, Commission decision of 13 May 1988; X v. Austria,
cited above; and McMichael, cited above).
- The
Court observes that the applicant intended to defend in person the
claim that he had been ill-treated while in police custody. His
participation, however, was considered unnecessary, firstly on the
ground that he had already made an oral statement on the subject of
ill-treatment before the tribunal trying him on criminal charges and,
secondly, because the claim of ill-treatment was not substantiated by
any evidence.
- The
Court cannot accept either line of the domestic courts' reasoning. On
the first point, it notes that during the criminal trial the
applicant made allegations of ill-treatment in an attempt to have his
initial confession to a robbery excluded from the case file as
evidence obtained under duress. The Court has already distinguished
on several occasions between complaints about police brutality made
for the purpose of contesting evidence in the criminal proceedings,
on one hand, and a civil action aimed at establishing the existence
of ill-treatment which may eventually result in a compensation award,
on the other hand (see Ksenzov v. Russia (dec.), no. 75386/01,
27 January 2005, and Slyusarev v. Russia (dec.), no.
60333/00, 9 November 2006). Therefore, the mere reference to the
episode of the applicant's complaint before the criminal court was
insufficient to refuse him a further opportunity to make submissions
on the subject.
- Concerning
the second point, the Court notes a certain contradiction between the
courts' finding the complaint unsubstantiated and their reluctance to
hear the applicant's statement. In any event, the exercise of the
guarantees inherent in the right to a fair trial cannot depend on the
court's giving a preliminary assessment of the claim as potentially
successful. A distinction must be made, in this respect, between
claims that are not genuine and serious (see Skorobogatykh v.
Russia, cited above, and the Court's finding in paragraphs 28 and
29 above) and claims that are unlikely to succeed for lack of
evidence. Given that the applicant's claim was, by its nature,
largely based on his personal experience, his statement would have
been an important part of the plaintiff's presentation of the case,
and virtually the only way to ensure adversarial proceedings. In
refusing to order his attendance, the domestic courts therefore
failed to ensure a fair hearing of the applicant's claim.
- It
follows that there has been a violation of the applicant's right to a
fair hearing as guaranteed by Article 6 §1 of the Convention.
II. 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 10,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government contested the applicant's claims, arguing that they
related to the applicant's complaints under Article 3 of the
Convention which had been declared inadmissible in the Court's
decision of 23 March 2006. They considered that no award should be
made to the applicant.
- The
Court considers that the applicant must have suffered frustration and
a feeling of injustice as a consequence of the court's refusal to
order his attendance at the hearing concerning his alleged
ill-treatment. It considers that the non-pecuniary damage suffered by
the applicant cannot be adequately compensated by the finding of a
violation alone. Accordingly, making its assessment on an equitable
basis, it awards the applicant EUR 2,000, plus any tax that may
be chargeable on that amount.
B. Costs and expenses
- The applicant did not make any claim in respect of the
costs and expenses incurred before the domestic courts and before the
Court within the time-limits set by the Court. Accordingly, the Court
makes no award under this head.
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
- Holds that the applicant may claim to be a
“victim” for the purposes of Article 34 of the
Convention;
- 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
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,000 (two thousand
euros) in respect of non-pecuniary damage, to be converted into the
national currency of the respondent State at the rate applicable at
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 10 May 2007, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the concurring opinion of Mr
Spielmann joined by Mrs Vajić is annexed to this judgment.
C.L.R.
S.N.
CONCURRING OPINION OF JUDGE SPIELMANN
JOINED BY JUDGE
VAJIĆ
- It
is not without hesitation that I accept that the applicant has victim
status.
- Indeed,
it is not entirely clear if the applicant's wife brought a civil
claim in her own name or on behalf of the applicant. After all, on
19 December 2001 the Rostov Regional Court confirmed her
standing as a plaintiff in the civil proceedings (paragraph 15
of the judgment). In most legal systems the applicant's wife's
standing would have been inconsistent with the maxim “Nul ne
plaide par procureur”.
- However,
since the parties do not dispute whether the applicant may claim to
be the victim of a violation of Article 6 in the proceedings which
ended on 17 April 2002 and, as follows from the Government's
observations, this claim was regarded under domestic law as having
been lodged under the implicit authority of the applicant and on his
behalf, I am satisfied, for the reasons given in paragraphs 23 and 24
of the judgment, that the applicant can claim to be the victim of a
violation of Article 6 § 1.
- The
ambiguous procedural status of the applicant's wife give rises to a
further ambiguity concerning the merits of the case. In paragraph 33
of the judgment, it is stated that “[t]aking into account [the
applicant's wife's] standing as a plaintiff in those proceedings, it
cannot be argued that the hearings were conducted in the absence of a
party to the dispute”.
- Put
simply, it is entirely unclear who was to be considered as “a
party to the dispute”: the applicant, his wife or both?
- The
effect of this ambiguity is, however, limited as, in any event, the
applicant was deprived of a fair trial. In particular, his absence
from the hearing was in violation of the principle of adversarial
proceedings and equality of arms, for the reasons set out in
paragraphs 34 to 38 of the judgment.
