FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56786/00 by Tatiana BELAN against Russia

The European Court of Human Rights ( First Section) , sitting on 2 September 2004 as a Chamber composed of:

Mr C.L. Rozakis , President , Mr P. Lorenzen,

Mr G. Bonello, Mrs N. Vajić , Mrs S. Botoucharova , Mr A. Kovler , Mr V. Zagrebelsky , judges , and Mr S. Nielsen , Section Registrar ,

Having regard to the above application lodged on 5 November 1999 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Tatiana Mikhaylovna Belan, is a Russian national, who was born in 1943 and lives in Murmansk . The respondent Government are represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows .

In the summer of 1997 the applicant, together with her daughter and grandson, was at the sea-side resort of Anapa. In early July 1997 their identity papers, cash and return travel vouchers were stolen. A criminal case was opened and later closed because the perpetrator could not be identified.

On 2 July 1997 the applicant applied to the Anapa town administration for financial assistance. Her application was forwarded to the railway station for replacement of the travel vouchers. The station director refused the request because lost or stolen tickets could not be re-issued.

The applicant purchased new tickets at her expense. F ollowing complaints to various State bodies, in 1999 she obtained reimbursement : the price of the substitute tickets was credited on her bank account.

On 10 January 1999 the applicant filed a civil action against the Anapa town administration and the railway station for compensation for non-pecuniary damage allegedly caused by their refusal to replace the travel vouchers.

On 2 March 1999 Judge Popova of the Anapa Town Court fixed the hearing on the applicant ’ s claim for 23 March 1999 .

It appears from the checklist of the case-file ( справочный лист ) that on 2 March 1999 three summonses were sent to the parties advising them of the date, time and place of the hearing. The case-file also contains a report of 4 March 1999 worded as follows:

“[The present report] is drawn up by deputy registrar S.V.Abramenko, court session clerk N. Dmitriyeva, [and] court clerk Yu. Klimentyeva [to record] that on 4 March 1999, at 1.40 p.m., a woman who introduced herself as T.M.Belan called the court registry on the phone and inquired about the movement of her claim. Court session clerk N. Dmitriyeva was invited to take the call as the claim had been allocated to Judge K.V.Popova. Clerk Dmitriyeva informed [the caller] that the hearing [in the applicant ’ s case] was fixed for 23 March 1999 at 12 a.m. and that the summons had been sent by mail on 2 March 1999 . To this [the caller] replied that she would not be able to attend the hearing because of her precarious financial situation and that she maintained her claim s .”

The report is signed by the three persons named therein.

On 23 March 1999 the Anapa Town Court of the Krasnodar Region held the hearing . Representatives of both defendants were present in the court. The applicant did not appear . The verbatim record of the hearing contains the following notes concerning the applicant ’ s absence:

“ ... the plaintiff did not appear at the hearing because of her precarious financial situation; she asked that the claim be examined in her absence.

The court will now decide whether the proceedings may continue in the absence of the plaintiff.

Town administration ’ s representative : I don ’ t object.

Railway representative : I consider it possible.

Having deliberated in public, the court holds to proceed in the absence of the plaintiff and to consider the reason for her absence a valid one ... ”

The court heard the defendants , examined the applicant ’ s written submissions and dismissed her claim as having no basis in domestic law .

On 12 April 1999 the applicant received a copy of the judgment by mail .

O n 20 April 1999 she sent her grounds of appeal to the Krasnodar Regional Court . She alleged, in particular, a serious breach of civil procedure in that she had not been notified of the hearing before the first instance court.

On 20 May 1999 the Anapa Town Court sent summons es to all parties to the dispute. They were informed that the appeal hearing would be held in the Krasnodar Regional Court on 8 June and that their attendance was not mandatory.

On 8 June 1999 the Krasnodar Regional Court examined the applicant ’ s appeal and upheld the judgment of 23 March 1999 . The applicant submits that she was not informed of the hearing before the Regional Court and could not therefore attend it. T he Regional Court did not address the issue of the applicant ’ s absence before the first instance court. It appears that the Regional Court determined the matter on the basis of the case - file and the defendant ’ s submissions to the first instance court and there was no oral hearing.

On 26 July 1999 the applicant request ed the Krasnodar Regional Court to provide her with a copy of the judgment. Her request was hand-written on the summons of 20 May 1999 .

A copy of the judgment of the Regional Court was sent to the applicant by mail on 18 August 1999 . She received it on 19 September 1999 .

B. Relevant domestic law

Article 106 of the Russian Civil Procedure Code of 11 June 1964 (in force at the material time) provide d that summons es were to be served on the parties and their representatives in such a way that they had enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a phone call or a telegram. Pursuant to Articles 108-109 , court summonses were to be sent by mail or by courrier and served on the person who wa s a party to the case. Pursuant to Article 157, if a party to the case fail ed to appear and there wa s no evidence that the party had been duly summoned, the hearing was to be adjourned.

COMPLAINT

The applicant complain ed under Article s 3, 6 and 13 of the Convention that she was not informed of the hearing before the first instance and appeal courts.

THE LAW

The applicant complained under Article s 3, 6 and 13 of the Convention that she was not given an opportunity to attend the hearings on her claims. The Court considers that this complaint falls to be examined under Article 6 § 1 of the Convention, the relevant parts of which read 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

The Government submit that the applicant was duly notified of the hearing before the Anapa Town Court by the summons of 2 March 1999. The same information was given to her on the phone when she contacted the court registry on 4 March 1999, to which she replied that she would not be able to attend the hearing. Under such circumstances the court was entitled to proceed with the hearing in the applicant ’ s absence. The Government further indicate that the applicant was summonned to the hearing before the appeal court by the summons of 20 May 1999.

The applicant claims that she receive d neither the summons of 2 March nor that of 20 May 1999. She denies that she called the court registry on 4 March 1999 and alleges that the report of the same date was forged and backdated. She believes that the entry in the checklist about the despatch of the summons of 2 March 1999 was “backdated or a coincidence”. In any event, the time-period between the despatch of the summons and the hearing date was , in her view, too short for her to arrive on time. Finally, she claims that the Government failed to show that she had received the summons to the appeal hearing.

The Court ’ s assessment

The Court reiterates that the entitlement to a “public hearing” in Article 6 § 1 necessarily implies a right to an “oral hearing”. However, the obligation under Article 6 § 1 to hold a public hearing is not an absolute one. Thus, a hearing may be dispensed with if a party unequivocally waives his or her right thereto and there are no questions of public interest making a hearing necessary. A waiver can be made explicitly or tacitly, in the latter case for example by refraining from submitting or maintaining a request for a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden , judgment of 21 February 1990, Series A no. 171-A, p. 20, § 66; Schuler-Zgraggen v. Switzerland , judgment of 24 June 1993, Series A no. 263, pp. 19-20, § 58). Furthermore, a hearing may not be necessary due to 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 Döry v. Sweden , no. 28394/95, § 37, 12 November 2002, with further references).

As regards the proceedings before the first instance tribunal , the Court notes that the summons for the hearing fixed for 23 March 1999 was despatched by the registry on 2 March 1999. It is not necessary to determine on what date the summons was served on the applicant, if at all, because the information about the hearing date was communicated to the applicant during her phone call to the registry on 4 March 1999. Upon receipt of the information the applicant had more than ten days to arrive at the court , even having regard to the distance that separated her from Anapa. However, as it appears from the report of 4 March 1999, the applicant chose not to make use of her right to be present because of financial constraints . The Court finds no prima facie evidence of the forgery or backdating of the report, noting that its contents were referred to, at least in substance, in the transcript of the hearing of 23 March 1999. The Court therefore finds that the applicant can reasonably be considered to have waived her right to a hearing before the Anapa Town Court.

It remains to be determined whether the lack of an oral hearing before the Krasnodar Regional Court involved a breach of the applicant ’ s rights under Article 6 § 1. In this connection, the Court reiterates that in proceedings before a court of first and only instance there is normally a right to a hearing (see, among other authorities, Håkansson and Sturesson v. Sweden , judgment cited above, p. 20, § 64). However, the absence of a hearing before a second or third instance may be justified by the special features of the proceedings at issue, provided a hearing has been held at first instance (see, for instance, Helmers v. Sweden , judgment of 29 October 1991, Series A no. 212-A, p. 16, § 36). Accordingly, unless there are exceptional circumstances that justify dispensing with a hearing, the right to a public hearing under Article 6 § 1 implies a right to an oral hearing at least before one instance.

The Court notes that the applicant waived her right to be present at first instance of her own will. It acknowledges that, in the interests of the proper administration of justice, it is normally more expedient that the plaintiff is heard at first instance rather than before the appellate court. Depending on the circumstances of the case, it might, however, be acceptable to reject a request for a hearing upon appeal, although no such hearing has been held at first instance (see Döry v. Sweden , cited above, § 40).

In the applicant ’ s case, the Court observes that the task of the domestic courts was limited to the determination of the question whether the relevant provisions of the domestic law conferred on the applicant the right to compensation for non-pecuniary damage allegedly caused by the municipal authorities ’ refusal to reimburse her for the stolen train tickets. The Court recognises that the dispute concerning the applicant ’ s entitlement to compensation was rather technical and could accordingly have been better dealt with in writing than in oral argument. Furthermore, it cannot overlook the demands of efficiency and economy that are to be met by the national authorities in the administration of justice.

The Court notes that the applicant was informed of the appeal hearing by the summons of 20 May 1999. Her allegation to the effect that she never received the summons in question is effectively rebutted by a copy of that summons with her hand-written notes on it which is contained in the case-file. The applicant does not claim that the summons was served on her so late as to deprive her of an opportunity to attend, had she so wished, and there is no reason to presume so.

T he Court further observes that the jurisdiction of the Krasnodar Regional Court was not limited to matters of law but also extended to factual issues. Yet the facts on which the applicant ’ s claims were based were not in dispute between the parties. The applicant appealed on points of law alleging incorrect interpretation of the applicable laws and certain procedural defects at the first instance. The Court considers that the appeal court could adequately resolve these issues on the basis of the case-file and the applicant ’ s written submissions. It further takes into account that the applicant did not request the Krasnodar Regional Court to call any witnesses on her behalf and did not seek leave to adduce any oral evidence.

Having regard to the foregoing, the Court finds that there were exceptional circumstances which justified dispensing with an appeal hearing on the applicant ’ s claim.

It follows that th e application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Søren Nielsen Christos Rozakis Registrar President