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FIRST
SECTION
CASE OF
LARIN v. RUSSIA
(Application
no. 15034/02)
JUDGMENT
STRASBOURG
20 May
2010
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 Larin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos
Rozakis,
President,
Anatoly
Kovler,
Elisabeth
Steiner,
Khanlar
Hajiyev,
Dean
Spielmann,
Sverre
Erik Jebens,
Giorgio
Malinverni,
judges,
and
Søren Nielsen, Section
Registrar,
Having
deliberated in private on 29 April 2010,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 15034/02) 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 Vitaliy Nikolayevich
Larin (“the applicant”), on 11 February 2002.
- The
applicant, who was granted legal aid, was represented by
Ms O. Mikhailova, a lawyer practising in Moscow. The
Russian Government (“the Government”) were initially
represented by Mr P. Laptev, the former Representative of
the Russian Federation at the European Court of Human Rights, and
subsequently by their former Representative, Mrs V. Milinchuk.
- The
applicant alleged, in particular, that the proceedings before the
Gusevskiy Town Court and the Kaliningrad Regional Court had been held
in his absence, that he had not been provided with free legal
assistance and had been unable to present his arguments, examine
witnesses or put questions to the plaintiff.
- By
a decision of 8 November 2007, the Court declared the application
admissible.
- The
Chamber decided, after consulting the parties, that no hearing on the
merits was required (Rule 59 § 3 in fine). The
Government, but not the applicant, filed further written observations
(Rule 59 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1971 and lives in Slavyanovka
village, Kaliningrad region.
- On
6 April 2001 the Gusevskiy Town Court of the Kaliningrad Region
convicted the applicant of theft, robbery and forgery and sentenced
him to seven years and six months’ imprisonment. This judgment
was upheld by the Kaliningrad Regional Court on 5 June 2001. The
courts found, inter alia, that the applicant had paid for
a car, purchased from Mr O., with counterfeit United States
dollars. The court further indicated that Mr O. might bring civil
proceedings against the applicant.
- In
June 2001 Mr O. lodged a civil claim against the applicant, seeking
to recover his car from the applicant. It was received by the
Gusevskiy Town Court on 19 June 2001.
- On
20 June 2001 Judge G. of the Gusevskiy Town Court forwarded a copy of
the statement of claim to the administration of the detention centre
where the applicant was being detained (remand prison IZ-39/1). In a
cover letter, the judge instructed the administration to hand the
statement of claim to the applicant and obtain his written
observations in reply by 11 July 2001.
- According
to the Government, on 21 June 2001 the applicant was transferred to
correctional colony OM-216/13 where he was to serve his sentence.
That colony was situated in Slavyanovka village, Kaliningrad
region. The documents sent by Judge G. to the applicant were
forwarded to his new address in that colony. The colony received them
on 13 July 2001.
- On
11 July 2001, the Gusevskiy Town Court examined the civil claim in
the applicant’s absence. On the same day the Town Court, by a
default judgment, ordered the applicant to return the car to Mr O.
The court indicated, inter alia, that the defendant (the
applicant) had been properly notified of the date of the hearing but
had failed to appear. Mr O. was present and made oral submissions to
the court.
- The
applicant alleged that he had been notified of the hearing only on
16 July 2001. The following day he had approached the Town Court
seeking the reopening of the proceedings and reversal of the judgment
on the ground that the hearing had taken place in his absence. The
applicant had also requested legal aid and insisted on his personal
presence at the hearing. On 19 July 2001 his letters were dispatched
to the Town Court by the administration of the correctional colony.
They were received by the court on 25 July 2001.
- On
17 August 2001 the court set a date for hearing the applicant’s
request and informed the applicant thereof. The Government maintained
that the notification had been received by the applicant on 28 August
2001.
- On 31 August 2001 the applicant wrote a letter to the
Town Court asking them to examine the case in his presence and
provide him with a lawyer. That letter was dispatched to the court by
the head of the correctional colony. His cover-letter was dated 4
September 2001; however, according to the postal stamp, the
applicant’s letter was actually posted on 7 September
2001.
- On
6 September 2001 the hearing took place in the applicant’s
absence. Mr. O was present and made oral submissions. The applicant
alleged that he had been unable to attend the hearing for want of a
court’s “conveyance request” (заявка
на этапирование)
ordering the correctional colony administration to escort him to the
court.
- By
a decision of 6 September 2001 the Gusevskiy District Court refused
to re-examine the case. The court found that the applicant had not
presented any new evidence that might affect the court’s
findings of 11 July 2001. The applicant’s argument that he had
not been properly notified of the hearing and his request for legal
aid were left open in the court’s decision. The next day, that
decision was sent to the applicant.
- Following
the Town Court’s refusal to reopen the proceedings, the
applicant appealed to the Regional Court, complaining about the
first-instance court’s decisions of 11 July and 6 September
2001. He insisted that his personal presence at the hearing of 11
July 2001 had been necessary to prove that the deal with Mr. O.’s
car was legal and valid, and that the proceedings should therefore be
reopened. He also asked the Regional Court to order his conveyance
from the correctional colony in order to take part in the hearing.
- On
9 October 2001 Judge G. informed the applicant of the date of the
appeal hearing, by way of a simple notice. The judge indicated that
the applicant’s personal presence at the hearing was not
mandatory, and that bringing him to the court hearing was
“inopportune”.
- On
10 October 2001 the Kaliningrad Regional Court examined the appeal in
absentia and upheld the judgment of 11 July and the decision of
6 September 2001. The court indicated that, under Article
213-11, proceedings ending with a default judgment should only be
reopened if two conditions were met: (a) the absent party had been
unable, with good reason, to attend the hearing or to inform the
court in a timely fashion thereof, and (b) the absent party produced
evidence that might affect the conclusions of the default judgment.
The court further indicated that the default judgment of 11 July
2001 had been fully based on the courts’ findings in the
criminal case against the applicant. Lastly, the Regional Court
established that the applicant’s submissions about the
circumstances of the deal with the car would not have had any impact
on the findings of the default judgment. In conclusion the court
stated as follows:
“The argument that [the applicant’s] absence
in court was excusable because he had been unable to inform the court
in a timely fashion of the valid reasons for his absence cannot be
accepted as a sole ground for quashing the judgment since the default
judgment may only be quashed if both of the above-mentioned
conditions have been met. Furthermore, [the applicant] does not
explain why he was not able to inform the court that he was serving a
prison sentence.”
- As
a consequence, the Regional Court dismissed the appeal and upheld the
default judgment.
II. RELEVANT DOMESTIC LAW
- Parties
to civil proceedings could 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”).
- Article 106 of the old CCP provided that a summons was
to be served on the parties and their representatives in such a way
that they would have enough time to appear at the hearing and prepare
their case. Where necessary, the parties could be summoned by a
telephone call or a telegram. Pursuant to Articles 108 and 109, court
summonses were to be sent by post or by courier and served on the
person who was a party to the case. The party was to sign the second
copy of a summons which was to be returned to the court. If a summons
could not be served on a party, it was to be served on an adult
family member who lived with the party. If a party was absent, the
person who delivered the summons was to note on the second copy of
the summons where the party could be found (Article 109).
- Article 144
required that civil cases be heard in a court session with mandatory
notification of the case to all parties. Article 151 provided that
court sessions started with the court secretary informing the judge
of the parties who had received summons but had failed to appear. The
secretary had to inform the judge of the reasons for their absence.
Pursuant to Article 157, if a party to the case failed to appear and
there was no evidence that the party had been duly summoned, the
hearing was to be adjourned.
- Article 213-1 provided
that if a defendant was duly notified of the hearing but failed to
appear, the court might proceed with the case, provided that the
plaintiff did not object. Article 213-6 provided that a default
judgment could be challenged either by lodging a request for the
reopening of the case with the first-instance court, or by appealing
directly to the court of appeal. Under Article 213-9, a decision of
the first-instance court not to reopen the case was subject to an
appeal as well. Under Article 213-11, the reopening of a case was
possible if two conditions were met: (a) the absent party had been
unable, with good reason, to attend the hearing or to inform the
court in a timely fashion thereof, and (b) the absent party produced
evidence which might have affected the outcome of the case.
- The
Penitentiary Code provides that convicted persons may be transferred
from a correctional colony to an investigation 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 convicted persons to take
part in civil proceedings, whether as plaintiffs or defendants.
- The
USSR Advocates Act (Law of 30 November 1979), together with the RSFSR
Rules on Advocates (Law of 20 November 1980), in force until 1
July 2002, provided that free legal assistance in civil cases could
be provided to certain categories of litigants and for certain
categories of disputes such as labour disputes, disputes concerning
disability pensions, work-related accidents, etc. (sections 11 and 22
respectively). Disputes involving prisoners similar to the one at the
heart of the present case were not mentioned amongst them. However,
the law stipulated that free legal assistance could be provided for
litigants who had no means to pay for it, on the initiative of the
advocate’s office, the investigator or the court (section 11(3)
of the USSR Advocates Act). If free legal assistance was granted by
the court, the lawyers’ fees had to be paid by the State.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant complained that he had been unable to present his civil
case on an equitable basis vis-à-vis the opposite
party, Mr O. The applicant referred in this respect to Article 6 §
1, which reads as follows:
“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 alleged that the applicant’s right to a fair hearing
of his civil case had not been breached. They admitted that there had
been a delay in sending the notification from the Gusevskiy Town
Court. However, the delay was caused by the applicant’s
transferral to the correctional colony. The State cannot be held
responsible for the work of the postal service. They referred to the
cases of Foley v. the United Kingdom (dec.), no. 39197/98, 11
September 2001, and Zagorodnikov v. Russia, no. 66941/01
7 June 2001.
- Furthermore,
the applicant had been duly informed of all subsequent hearings,
where he could have submitted his written observations. Pursuant to
Article 213 of the Code of Civil Procedure,
a default judgment can be quashed if two conditions are met: (a) the
absent party was unable, with good reason, to attend the hearing or
to inform the court thereof, and (b) the absent party is able to
present new materials which could affect the outcome of the case. The
applicant’s request did not contain any information that could
have led to the reopening of the case. As a result, he was in no way
placed in an unfavourable position vis-à-vis the
plaintiff, Mr O.
- The
Government further maintained that the facts of the case had been
established by the judgment of 6 April 2001 in the applicant’s
criminal case. It had been established that the applicant had paid
for the car bought from Mr. O with counterfeit United States dollars.
In its judgment of 10 October 2002 the Kaliningrad Regional
Court noted that the facts established in the judgment of 6 April
2001 within the criminal proceedings against the applicant had the
force of res judicata for the purposes of civil proceedings
concerning damage caused to the victim of the applicant’s
crime. In his appeal against the default judgment of 11 July 2001,
the applicant had simply cast doubt on the findings of the trial
court; he had not adduced any new arguments relevant for the analysis
of the civil-law aspects of the situation.
- The
Government also argued that the question of the applicant’s
absence from the hearing of 11 July 2001 had been examined twice –
on 6 September 2001, by the same court, and on 10 October 2002
by the Kaliningrad Regional Court. Both instances concluded that the
applicant’s presence had not been necessary and examined his
written submissions. In the Government’s opinion, that
subsequent measure had remedied the defects of the original hearing
of 11 July 2001.
- The Government finally indicated that the law (namely,
the 1964 Code of Civil Procedure then in force) did not provide for a
convicted criminal to be transferred to the court examining his civil
case. His participation in the civil proceedings before the court of
appeal was not mandatory either, that is to say, the court of appeal
could proceed with the case in his absence. The convict had the right
to receive copies of materials of the case, give written comments,
lodge procedural requests, etc. Even if there had been a delay in
notifying the applicant of the original hearing (that of 11 July
2001), he had been fully able to enjoy his right provided by the
national law in subsequent proceedings.
- As
regards the refusal to provide the applicant with legal aid, the
Government maintained that the Russian law then in force did not
provide for legal aid in civil cases of that category. As a result,
the applicant’s requests for legal aid had not been granted.
However, it had been open to the applicant to find a lawyer on his
own, or to ask one of his relatives or friends to represent him in
the civil proceedings.
- The
applicant maintained his initial complaint that the authorities had
failed to notify him of the hearing, and that he had thus been unable
to present his case, personally or through his representative.
B. The Court’s analysis
1. General principles
- The
Court observes 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). As to the requirement of an oral hearing, this is not a
mandatory form of the adjudicative process, especially in higher
instances where written procedures may be more appropriate. A hearing
may not be necessary in the particular 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, mutatis mutandis, Fredin v.
Sweden (no. 2), 23 February 1994, §§ 21-22, Series
A no. 283-A, and Fischer v. Austria, 26 April 1995, § 44,
Series A no. 312). Legal assistance in civil cases is not
mandatory either, although, in certain circumstances, Article 6 §
1 may sometimes compel the State to provide for the assistance of a
lawyer when such assistance proves indispensable for an effective
access to court (see Airey v. Ireland, 9 October 1979, §
26, Series A no. 32, p. 14-16,).
- Thus
the questions of personal presence, the form of the proceedings (oral
or written), legal representation, etc. should be analysed in the
broader context of the “fair trial” guarantee of Article
6. The Court should verify whether the applicant – 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 vis-à-vis
his 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).
2. Court’s case-law specific to Russia
- 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 a Russian court
refused leave to appear to an imprisoned applicant who had wished to
make oral submissions on 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 nature of
the dispute was also decisive in the case of Sokur v. Russia
(no. 23243/03, 15 October 2009) where the Court held that even if the
applicant had appointed a representative, it would not have
compensated for his personal absence from the court since the
applicant’s claims “were, to a major extent, based on his
personal experience” (§ 35).
- In
the more recent case of Shilbergs v. Russia (no. 20075/03,
17 December 2009, not yet final), which also concerned a civil
action brought by a convicted criminal in respect of the conditions
of his detention, the Court held as follows: “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” (§ 106).
- Having
said that, the Court observed that the option of legal aid had not
been open to the applicant. In such a situation the only possibility
for him had been to appoint a relative, friend or acquaintance to
represent him in the proceedings. However, the domestic courts had
not enquired whether the applicant had been able to designate a
representative. The Court further reiterated that the domestic courts
had refused the applicant leave to appear and, at the same time, had
not held a session in the applicant’s correctional colony.
3. Application to the present case
(a) Hearing of 11 July 2001
-
The Court considers that the nature of the civil dispute is the core
element of the case, which should be addressed first.
- The
Court observes that the facts at the heart of the civil dispute were
already established in the criminal proceedings in which the
applicant had participated personally. The plaintiff (Mr O.) brought
one claim: for the car which had been bought from him with
counterfeit United States dollars to be returned. He did not ask for
damages, nor did he invoke any other provision of Russian law which
would necessitate the examination of such facts and legal arguments
which had not been examined in the criminal proceedings against the
applicant.
- In
such circumstances the Court is prepared to accept that the
applicant’s personal presence at the hearing had not been
strictly necessary. He could have taken part in the proceedings
through a representative or by submitting written observations.
- On
the other hand, even though the dispute in issue was quite simple and
the applicant had little chance of success in the civil court, that
does not mean that he should have been deprived of all his rights
under Article 6 § 1 of the Convention. As the Court said in
the case of Kovalev (cited above, § 37), 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. In the end, the domestic court
accepted the plaintiff’s claim and rendered a judgment on the
merits; it implied that the civil proceedings had a separate purpose.
To hold otherwise would have deprived them of any practical meaning,
other than the simple “rubber-stamping” of the judgment
in the applicant’s criminal case.
- The
Government acknowledged that the notification had not reached the
applicant until 13 July 2001, two days after the hearing. Therefore,
it was not disputed between the parties that at the hearing of
11 July 2001 the applicant had no opportunity to present his
case in any form whatsoever: personally or through a representative,
orally or in writing.
- The
Government explained that the belated notification of the hearing to
the applicant had been due to his transferral from one detention
facility to another. They blamed the postal service for that delay
and maintained that the authorities should not be held responsible
for it. However, their argument is not convincing.
- First,
the Government did not specify for how long the notification was in
the hands of the postal service. Therefore, it is possible that some
of the delay is attributable to the administrations of remand prison
IZ-39/1 and correctional colony OM-216/13.
- Second,
the authorities knew that the applicant was in a remand prison. On 5
June 2001 his conviction had entered into legal force and, like any
other convicted criminal, he had waited to be transferred to a
correctional institution. The courts could not have ignored this fact
when calculating how much time was needed for a notification to reach
him.
- Third,
the court sent the notification to the applicant’s last known
address, to the remand prison. However, the law clearly required the
court secretary to check at the beginning of the process whether the
notification had been received by the defendant (see Article 151 of
the old CCP, cited above). It is unclear whether the administration
of the remand prison had informed the court of the change of the
applicant’s address owing to his transferral to the
correctional colony (see Article 109 of the CCP). Be it as it may,
the authorities showed a manifest lack of diligence and proceeded
with the case without checking whether the applicant had been duly
notified of the case against him.
- The
Court concludes that the hearing of 11 July 2001 was not in
compliance with the requirements of Article 6 § 1 of the
Convention. Nevertheless, the Court observes that the proceedings
should always be examined as a whole. Therefore, it is necessary to
examine to what extent the subsequent proceedings were capable of
restoring the applicant’s right to a fair hearing.
(b) Hearings of 6 September and 10 October 2001
- The
Court observes that the new hearing of the applicant’s case
took place on 6 September 2001. At that hearing the court examined
the applicant’s request for the reopening of the case. The
applicant was able to submit his written observations; however, he
was not present personally. Furthermore, he appealed against the
decision not to reopen the case and in his appeal he was again able
to state his position on the case. From that the Government concluded
that the applicant had been able to “present his case”
and, therefore, the hearings of 6 September and 10 October were in
compliance with Article 6 of the Convention.
-
Even assuming that the applicant’s “effective
participation” in the proceedings was thereby secured, the
Court does not find that the applicant was able to present his case
on an equal footing with the opposing party. The applicant’s
requests for leave to appear were denied or ignored 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. In contrast, the opposite party attended both
hearings before the Gusevskiy Town Court and was free to attend the
hearing before the court of appeal. In such circumstances the Court
finds that the applicant was placed at a significant disadvantage
vis-à-vis the opposing party (see Groshev v.
Russia, no. 69889/01, § 29, 20 October 2005).
- The
Court also notes that the applicant made three applications to the
courts to have a legal-aid lawyer appointed, but his requests were
either implicitly dismissed or simply ignored. The Government argued
that Russian law did not provide for legal aid in cases of that
category. However, the Court observes that under section 11 of the
USSR Advocates Act (see paragraph 26 above) it was in the courts’
power to appoint a legal-aid lawyer to any litigant and for any type
of case if that litigant had no sufficient means to pay for the
lawyer himself.
- Alternatively,
the Government may be understood as claiming that the system of legal
aid in civil cases was not operational in practice at that time.
However, this is not a convincing argument either. Indeed, as a
general rule there is no right to free legal assistance in civil
cases, but there are exceptions to this rule (see, for example, the
case of Airey, cited above). In the Court’s opinion,
where the effective participation of a detainee in civil proceedings
cannot be secured by other means, the law must provide for some form
of legal aid. It is a fortiori true in the present case
where the applicant did not appear to be a vexatious litigant. The
authorities had refused to bring him to the court or to hold a court
session in the correctional colony, whereas the other party had been
present at the two hearings and had been free to attend the hearing
before the court of appeal as well.
- Finally,
the Government noted that the applicant could have requested one of
his relatives or friends to represent him. However, the availability
of that option depended on too many factors out of the applicant’s
control. First of all, the applicant would have needed to have a
relative or a friend willing to represent him. Furthermore, the Court
emphasises that the authorities gave the applicant virtually no time
to make necessary arrangements for the representation. The applicant
did not receive any reply from the court to his original application
for legal aid. He learned of the date of the second hearing (that of
6 September) only on 28 August 2001. The time left to the
applicant, who was being detained, was barely enough to find a
representative of his own. In addition, it took the colony
administration seven days to post the applicant’s letter in
which he repeated his request for legal aid. As a result, the letter
was received by the court when the hearing had already been held.
There was a repeat of the same situation before the court of appeal:
the judge notified the applicant of the date of the appeal hearing
only one day in advance (on 9 October 2001). Even in the
unlikely event that the notification reached the applicant on the
same day, the applicant would have had no time to find any
representative.
(c) The Court’s conclusions
-
In the present case the authorities failed to notify the applicant of
the civil case in which he was a defendant. Furthermore, they refused
him the right to participate in the subsequent proceedings in person,
ignored his numerous applications for legal aid, and did not give him
any time to find his own representative. The plaintiff, on the
contrary, fully enjoyed his procedural rights. In such circumstances,
the Court concludes that the applicant was deprived of the
opportunity to present his case effectively and on an equal footing
vis-à-vis the opposite party. There has therefore been
a violation of 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 maintained that he had lost his case because he had not
been present at the court. Had he been present, the court would have
ruled in his favour, and the car would have remained his property. He
therefore claimed 350 euros (EUR), the price of the car, under
the head of pecuniary damage.
- Furthermore,
the applicant claimed EUR 5,000 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
unsubstantiated and suggested that the acknowledgment of a violation
would constitute adequate just satisfaction.
- The
Court considers that, on the basis of the materials in its
possession, the applicant suffered no material loss as a direct
consequence of the violation of Article 6 § 1 of the Convention
found by the Court in this case. As a result, no award for pecuniary
damage should be made.
- The
Court considers at the same time that the applicant must have
suffered frustration and a feeling of injustice as a consequence of
the court’s refusal to secure his attendance at the hearing. 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 500, plus any tax that may be chargeable on
that amount.
B. 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 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 500 (five
hundred 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.
Søren Nielsen Christos Rozakis
Registrar President
