BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FIRST
SECTION
CASE OF SOKUR v. RUSSIA
(Application
no. 23243/03)
JUDGMENT
STRASBOURG
15
October 2009
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 Sokur v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Nina
Vajić,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens, judges,
and André Wampach, Deputy
Section Registrar,
Having
deliberated in private on 24 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23243/03) 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 Valentin Vladimirovich
Sokur (“the applicant”), on 20 June 2003.
- The
applicant, who had been granted legal aid, was represented by Ms Y.
Yefremova and Mr M. Rachkovskiy, lawyers practising in Moscow.
The Russian Government (“the Government”) were
represented by Ms V. Milinchuk, former Representative of
the Russian Federation at the European Court of Human Rights, and
subsequently by Mr G. Matyushkin, Representative of the Russian
Federation at the European Court of Human Rights.
- The
applicant alleged, in particular, that the courts at two levels of
jurisdiction had refused to secure his participation in the civil
proceedings concerning his claims for compensation for damage
resulting from unlawful detention and conviction.
- On
5 April 2007 the President of the First Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
- The
Government objected to the joint examination of the admissibility and
merits of the application. Having examined the Government's
objection, the Court dismissed it.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant is a Russian national who was born in 1977 and is serving a
prison sentence in Kaliningrad.
A. Criminal proceedings against the applicant
- On
1 June 1998 the applicant was arrested on suspicion of assault and
robbery. He remained in custody pending investigation and trial.
- On
20 May 1999 the Moskovskiy District Court of Kaliningrad found the
applicant guilty as charged and sentenced him to seven years'
imprisonment.
- On
31 August 1999 the Kaliningrad Regional Court quashed the applicant's
conviction on appeal and discontinued the criminal proceedings
against him. He was released on the same day.
- It
appears that approximately a month after his release the applicant
was arrested on suspicion of two counts of murder.
B. Proceedings for compensation
- In
December 2001 the applicant, who was at that time serving a prison
sentence, sued the Ministry of Finance and M., the trial judge who
had convicted him on 20 May 1999, for compensation for damage
resulting from his unlawful detention and conviction. The applicant
claimed an award for non-pecuniary damage in the amount of 500,000
Russian roubles (RUB), reimbursement of his lawyer's fee and lost
earnings in the amount of RUB 55,000. He also sought leave to
appear before the court.
- On
25 January 2002 the Moskovskiy District Court of Kaliningrad
granted the applicant leave to appear and scheduled the hearing for
22 February 2002.
- The
District Court heard the case on 22 February 2002 as scheduled.
The applicant was not transported to participate in the hearing.
Mr D., his representative, was present. He asked the court to
consider the matter in the applicant's absence. The District Court
granted the applicant's claims in part and awarded him RUB 25,000
in compensation for non-pecuniary damage. The remainder of the
applicant's claims were dismissed.
- On
a complaint by the applicant, the Presidium of the Kaliningrad
Regional Court quashed the judgment of 22 February 2002 by way
of supervisory review on 30 July 2002. The court noted, inter
alia, that the District Court had failed: (1) to inform the
applicant of his duty to submit documents substantiating his claim
for compensation for lost earnings; and (2) to establish the
circumstances with regard to the applicant's claim concerning
non-pecuniary damage.
- On
15 August 2002 the applicant was notified of a new court
hearing, scheduled for 28 August 2002. He was also advised of
his right to be represented in the proceedings before the court.
- In
response to the District Court's decision of 6 August 2002 to
grant the applicant leave to appear, the head of the administration
of the penitentiary establishment responded that it was not possible
to comply with the court's decision. On 28 August 2002 the
District Court adjourned the hearing.
- On
29 August 2002 the District Court asked the applicant to make
written submissions in connection with his claims. The applicant
asked the court to appoint the regional ombudsman to represent him in
the proceedings. He further asked the court to obtain certain
documents to substantiate his claims for compensation for lost
earnings and reimbursement of the lawyer's fee.
- On
1 November 2002 the District Court adjourned the hearing of the
matter pending the receipt of the documents requested by the
applicant. The court scheduled the next hearing for 11 December
2002 and advised the applicant of his right to appoint a
representative.
- Following
the ombudsman's refusal to represent the applicant, the latter asked
the District Court to secure his presence at the next hearing.
- On
11 December 2002 the District Court granted the applicant's
claims in part and awarded him RUB 15,000 in compensation for
non-pecuniary damage and RUB 1,900 by way of reimbursement of
the lawyer's fee. The court dismissed the applicant's claims for lost
earnings, noting that he had failed to submit documents proving that
he had been actually employed at the relevant time. Neither the
applicant nor the respondents were present. The record of the court
hearing and other items from the case file were forwarded to the
applicant.
- The
applicant appealed against the judgment of 11 December 2002. In
response to the applicant's request to be present at the appeal
hearing, the Regional Court informed him that the applicable laws did
not provide for the personal presence of persons serving a prison
sentence at a hearing concerning the determination of their civil
rights and obligations. The court further advised the applicant of
his right to submit observations in writing and/or to appoint a
representative.
- On
26 March 2003 the Regional Court upheld in substance the
judgment of 11 December 2002 on appeal, increasing to RUB 35,000
the amount awarded to the applicant in compensation for non-pecuniary
damage. Neither the applicant nor the respondents were present.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Parties to civil proceedings may appear before a court
in person or act through a representative (Article 43 of the Code of
Civil Procedure in force until 31 January 2003 (“the old
CCP”) and Article 48 of the Code of Civil Procedure in force as
of 1 February 2003 (“the new CCP”). A court may
appoint an advocate to represent a defendant whose place of residence
is not known (Article 50 of the new CCP). The Advocates Act (Law no.
63-FZ of 31 May 2002) provides that free legal assistance may be
provided to indigent plaintiffs in civil disputes concerning alimony
or pension payments or claims for health damage (section 26 §
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 the possibility for a convicted
person to take part in civil proceedings, whether as a plaintiff or
defendant.
- On several occasions the Constitutional Court has
examined complaints by convicted persons whose requests for leave to
appear in civil proceedings had been refused by courts. It has
consistently declared the complaints inadmissible, finding that the
contested provisions of the Code of Civil Procedure and the
Penitentiary Code did not, as such, restrict the convicted person's
access to court. It has emphasised, nonetheless, that the convicted
person should be able to make submissions to the civil court, either
through a representative or in any other way provided by law. If
necessary, the hearing may be held at the location where the
convicted person is serving the sentence or the court hearing the
case may instruct the court having territorial jurisdiction over the
correctional colony to obtain the applicant's submissions or carry
out any other procedural steps (decisions no. 478-O of 16 October
2003, no. 335-O of 14 October 2004, and no. 94-O of 21 February
2008).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION ON
ACCOUNT OF THE DOMESTIC COURTS' FAILURE TO ENSURE THE APPLICANT'S
EFFECTIVE PARTICIPATION IN THE CIVIL PROCEEDINGS
- The
applicant complained that he had been refused the opportunity to
participate in the civil proceedings. He relied on Article 6 § 1
of the Convention, which, in so far as relevant, reads:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested that argument. They argued that the applicant
had failed to demonstrate that his personal presence in court was
indispensable for the proper administration of justice. In any event,
given the nature of his claims, his presence in court was not
required. It was also open to him to assign a representative as
provided for by the applicable legislation. Given that the applicant
had been convicted of a serious crime and was serving a sentence in a
penitentiary establishment with strict conditions of detention, his
request for participation in the civil proceedings was merely an
attempt to be detained, even if briefly, in less strict conditions
than those imposed on him. The domestic judicial authorities had
observed all the fair-trial guarantees set out in Article 6 of
the Convention. The applicant had been duly informed of the dates and
time of the hearings. He had been provided with copies of the records
of hearings and other documents from the case file. The court had
advised him of his rights and had facilitated the collection of the
evidence needed to substantiate his claims. As a result, the
applicant's claims had been granted in part.
- The
applicant maintained his complaint. In his view, it was essential for
compliance with the principle of the equality of arms that his
presence in court should have been secured. The fact that the
domestic judicial authorities had failed to ensure his presence in
court had deprived him of the opportunity to make effective use of
his procedural rights. He had been unable to produce and examine
evidence, to file motions and to argue his case. The applicant did
not have the financial means to retain a lawyer to represent him. His
relatives did not have the requisite legal knowledge to provide
effective representation. He could have been transferred to a local
detention facility so that transporting him to the courthouse was
feasible. The applicant further opined that the courts' refusals to
grant him leave to appear had been unlawful. In this connection he
relied on Article 77.1 of the Penitentiary Code. Lastly, the
applicant argued that his right to be present at a hearing in the
course of civil proceedings was absolute as provided for in domestic
law.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. 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 or her 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). The Court has
previously found a violation of the right to a “public and fair
hearing” in a case where a Russian court, after having refused
leave to appear to the imprisoned applicants, who had wished to make
oral submissions on their defamation claim, failed to consider other
legal possibilities for securing their effective participation in the
proceedings (see Khuzhin and Others v. Russia, no. 13470/02,
§§ 53 et seq., 23 October 2008). It also found a
violation of Article 6 in a case where an imprisoned applicant was
similarly unable to be present and testify in court with regard to
his claim that he had been ill-treated by the police. Despite the
fact that the applicant in that case was represented by his wife, the
Court considered it relevant that his claim 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”
(see Kovalev v. Russia, no. 78145/01, § 37,
10 May 2007).
- The
Court observes that the Russian Code of Civil Procedure provides for
the plaintiff's right to appear in person before a civil court
hearing his claim (see paragraph 23 above). However, neither the Code
of Civil Procedure nor the Penitentiary Code make special provision
for the exercise of that right by individuals who are in custody,
whether they are in pre-trial detention or are serving a sentence. In
the present case the applicant's requests for leave to appear were
denied precisely on the ground that the domestic law did not make
provision for convicted persons to be brought from correctional
colonies to the place where their civil claim was being heard. The
Court reiterates that Article 6 of the Convention does not guarantee
the right to personal presence before a civil court but rather 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).
- The issue of the exercise of procedural rights by
detainees in civil proceedings has been examined on several occasions
by the Russian Constitutional Court, which has identified several
ways in which their rights can be secured (see paragraph 25 above).
It has consistently emphasised representation as an appropriate
solution in cases where a party cannot appear in person before a
civil court. Given the obvious difficulties involved in transporting
convicted persons from one location to another, the Court can in
principle accept that in cases where the claim is not based on the
plaintiff's personal experiences, representation of the detainee by
an advocate would not be in breach of the principle of equality of
arms.
- Turning
to the circumstances of the instant case, the Court observes that the
applicant sought an award for the pecuniary and non-pecuniary damage
resulting from his unlawful detention and conviction. The courts at
two levels of jurisdiction refused to grant him leave to appear and
examined the case in his absence, finding that there were no legal
grounds to ensure his personal attendance. The courts also advised
the applicant in good time of his rights, including the right to be
represented (see, by contrast, Khuzhin, cited above,
§§ 106-09).
- However,
the Court is not convinced that the representative's appearance
before the court could have secured the effective, proper and
satisfactory presentation of the applicant's case.
- The
Court observes that the applicant's claims for the non-pecuniary
damage resulting from his unlawful detention and conviction were, to
a major extent, based on his personal experience. The Court considers
that his testimony describing the conditions of his detention, of
which only the applicant himself had first-hand knowledge, would have
constituted an indispensable part of the plaintiff's presentation of
the case (see Kovalev, cited above, § 37). Only the
applicant could, by testifying in person, substantiate his claims for
compensation for non-pecuniary damage and answer the judges'
questions, if any.
- The
Court also notes that the domestic courts refused the applicant leave
to appear, relying on the absence of a legal norm requiring his
presence. In this connection, the Court is also mindful of another
possibility which was open to the domestic courts as a way of
securing the applicant's participation in the proceedings. The
District Court could have held a session in the penitentiary
establishment where the applicant was serving a sentence. However,
the domestic courts did not consider such an option.
- In
these circumstances, the Court finds that the domestic courts, by
refusing to grant the applicant leave to appear and make oral
submissions at a hearing, deprived him of the opportunity to present
his case effectively.
- There
has therefore been a violation of Article 6 § 1
of the Convention on account of the applicant's absence before the
domestic courts in the civil proceedings in his case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
relying on Articles 3, 5, 6 and 14 of the Convention, the applicant
complained about the conditions and contested the lawfulness of his
pre-trial detention and the outcome of the civil proceedings. He
further argued that he had been discriminated against by the domestic
authorities.
- However,
having regard to all the material in its possession, the Court finds
that it does 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 being
manifestly ill-founded, pursuant to Article 35 §§ 3 and 4
of the Convention.
III. 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 4,000 euros (EUR) in respect of non-pecuniary
damage.
- The
Government submitted that there had been no violation of the
applicant's rights as set out in the Convention. In any event, they
considered the applicant's claims excessive and suggested that the
acknowledgment of a violation would constitute adequate just
satisfaction.
- 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 claims. 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 submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
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 domestic
authorities' failure to ensure the applicant's participation 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
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 Russian roubles 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 15 October 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
André Wampach Christos Rozakis
Deputy Registrar President
