THIRD SECTION

CASE OF IGRANOV AND OTHERS v. RUSSIA

( Applications no s . 42399/13 and 8 other s – see appended list )

JUDGMENT

STRASBOURG

20 March 2018

FINAL

10/09/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Igranov and Others v. Russia ,

The European Court of Human Rights ( Third Section ), sitting as a Chamber composed of:

Helena Jäderblom , President, Luis López Guerra, Helen Keller, Dmitry Dedov , Alena Poláčková , Georgios A. Serghides , Jolien Schukking , judges, and Stephen Phillips , Section Registrar ,

Having deliberated in private on 20 February 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in nine applications 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 nine Russian nationals (“the applicants”). The application numbers and the dates on which they were lodged with the Court , as well as the applicants ’ full names and dates of birth , are listed in the Appendix .

2 . The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin .

3 . 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.

4 . On 22 April 2016 the above complaint was communicated to the Government and the remainder was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court . The Court also informed the parties that it was considering the suitability of applying a pilot judgment procedure and requested the parties ’ observations on the matter.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

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

6 . The applicants, who were detained at the material time in Russian penal facilities, were claimants in separate sets of civil proceedings. Most of the applicants were seeking compensation for various aspects of the conditions of their detention, for unlawful criminal prosecution, or for lack of adequate medical care.

7 . None of the applicants were able to attend the hearings at which their claims were examined. The domestic courts at both levels of jurisdiction refused to allow them to be present. In most of the cases the courts held that there was no domestic legal provision for bringing detainees to court and referred to Article 77.1 of the Code on the Execution of Sentences and the relevant provisions of the Code of Civil Procedure. They also noted that the applicants had had the opportunity to submit written pleadings and to retain counsel to represent them in court.

8 . The applicants ’ claims were refused at two levels of jurisdiction. The dates of the final judgments are set out in the appended table.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Participation in civil proceedings

9 . For relevant rules of Russian civil procedure and the practice of Russian courts, see Yevdokimov and Others v. Russia , nos. 27236/05 and 10 others, §§ 9-15, 16 February 2016.

B. Re -examination of civil cases

10 . The Code of Civil Procedure provides as follows:

Article 392. Grounds on which final judicial decisions may be re-examined (in the light of newly discovered or new circumstances)

“1. Final judicial decisions may be re-examined in the light of newly discovered or new circumstances.

2. The g rounds on which final judicial decisions can be re-examined are:

...

2) new circumstances – the circumstances indicated in paragraph 4 of the present Article which have appeared after the adoption of a judicial decision and which are significant for the correct resolution of a case.

...

4. The new circumstances are:

...

4) a finding by the European Court of Human Rights, after examination of a case in which the final decision has been the subject of an application before it, of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.”

11 . Ruling no. 31 of 11 December 2012 by the Plenary Supreme Court on the “Application of provisions of the Code of Civil Procedure for considering applications for re-examination of final judicial decisions in the light of newly discovered or new circumstances” established that the list of grounds for re-examination of a judicial decision in the light of new circumstances , as set out in Article 392 § 4, was exhaustive and that a judicial decision may be re-examined only if the new circumstances were “of substantial importance for the correct examination of the case” (point 8).

12 . Ruling no. 21 of 27 June 2013 by the Plenary Supreme Court 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” specified that a judicial act should be re-examined if the applicant had continued to suffer from the negative consequences of such an act and the Court had established a violation of the Convention or its Protocols of a procedural nature that put in question the outcome of the proceedings (point 17 ; for more details about the ruling, see Davydov v. Russia , no. 18967/07 , § 15, 30 October 2014).

13 . By decision of 19 April 2017, the Presidium of the St Petersburg City Court rejected an application for the reopening of civil proceedings submitted by Ms Skorodumova , one of the applicants in the case of Melnikov and Others v. Russia (nos. 40869/06 and 8 others) whose applications had been struck out on 22 November 2016 by a decision of a Committee of the Third Section of the Court. The Presidium held that, in the absence of a Court judgment on the merits of the applicants ’ complaints or a finding of a violation affecting the outcome of the civil proceedings to which Ms Skorodumova had been a party, the original judicial decision was not amenable to re-examination under Article 392 of the Code of Civil Procedure.

14 . By an appeal decision of 4 October 2017, the Khabarovsk Regional Court quashed the first-instance court ’ s decision refusing an application for the reopening of civil proceedings submitted by Mr Resin, one of the applicants in the Yevdokimov and Others case ( cited above ) in which the Court had found a violation of Article 6 § 1 on account of the applicants ’ absence from the civil proceedings. The Khabarovsk Regional Court pointed out that the procedural rights of parties to the proceedings could not be restricted in an arbitrary fashion and that Mr Resin ’ s exclusion had been incompatible with the position of the Constitutional Court. It ordered a reopening of the civil proceedings. By contrast, the appeal judgment by the Perm Regional Court of 31 May 2017 in case no. 33-5962 dismissed an application for the reopening of proceedings lodged by Mr Davydov , in respect of whom the Court found a similar violation (see Barkov and Others v. Russia , nos. 38054/05 and 8 others, 19 July 2016). The Perm Regional Court noted in particular that Mr Davydov had been a party to a dispute over a debt he had owed to another person, that the materials of the case had been destroyed, and that he had been awarded compensation by the Court for what had been an essentially procedural violation of his rights.

THE LAW

I. JOINDER OF THE APPLICATIONS

15 . 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 interest of the proper administration of justice, the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court.

I I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

16 . 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. The relevant part of Article 6 § 1 reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...”

A. The Government ’ s request that certain applications be struck out on the basis of a unilateral declaration

17 . With the exception of Mr Khvorostyanoy and Mr Resin , whose complaints they considered inadmissible (see paragraph 28 below), the Government submitted unilateral declarations in respect of the other seven applicants. They acknowledged a violation of their right to a fair trial under Article 6 § 1 of the Convention, offered t o pay them a sum of 1,500 euros (EUR) each, covering any pecuniary and non-pecuniary damage as well as costs and expenses, and invited the Court to strike their cases out of its list in accordance with Article 37 § 1 (c) of the Convention. They undertook to effect the payment within three months of the date of notification of the Court ’ s decision and , in the event of failure t o pay that sum within the three ‑ month period, to pay simple interest on that amount until the date of settlement at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.

18 . The applicants concerned were invited to indicate whether or not they accepted the terms of the declaration and, in the event of refusal, to state their reasons for refusing it.

19 . Mr Kuznetsov , Mr Siverkov and Mr Sulimov did not reply. Mr Igranov , Mr Zhundo , Mr Malygin and Mr Lupanskiy rejected the terms of the Government ’ s declaration. They stated that the proper redress for the violation of their right to a fair trial would be a full review of their civil cases , which would only be possible on the basis of a judgment of th e Court.

20 . The Court reiterates that the applicant ’ s consent to the terms of the declaration is not required in order to strike o ut an application under Article 37 § 1 (c) of the Convention, for such a decision may be taken even if the applicant wishes the examination of the case to be continued. The elements on the basis of which the Court determines whether or not the declaration offers a sufficient basis for finding that respect for human rights does not require it to continue examination of the case are well-established in its case-law . Th ey include in particular the nature of the complaints made, the acknowledgment of a violation of the Convention and the undertaking to pay adequate compensation for such violation , the existence of clear and extensive case-law in similar cases, and the manner in which the Government intend to provide redress to the applicant and whether this makes it possible to eliminate the effects of an alleged violation (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR 2003 ‑ VI, and for a recent restatement of applicable principles, Jeronovičs v. Latvia [GC], no. 44898/10 , §§ 64-71, ECHR 2016 ).

21 . The instant case concerns the allegedly unfair nature of civil proceedings in which Russian courts failed to secure the attendance of imprisoned applicants wishing to take part in hearing s on their claims. The Court has found a violation of Article 6 in a large number of similar Russian cases and has recently consolidated its approach in the leading judgment of Yevdokimov and Others (cited above, §§ 30-48). It follows that the central issue of this case is based on clear and extensive case-law of the Court. T he Court is also satisfied that the Government acknowledged a violation of Article 6 of the Convention and undertook to pay compensation in an amount which was not unreasonable in relation to the Court ’ s awards in similar cases (ibid., § 58) .

22 . On the issue of adequate redress, the Court considers that a distinction must be drawn between the situation of those applicants who did not react to the Government ’ s declaration and those who raised specific object ions to it . The distinction hinges on the fact that t he as sessment of whether or not the proposed redress is adequate involves a degree of subjectiv ity relating to the applicant ’ s individual situation . The applicant ’ s position is therefore relevant and important, even if not decisive . By inviting applicants to submit their comments on the declaration, the Court provides them with an opportunity to alert it to any deficiencies in the proposed redress , such as a manifestly insufficient amount or an outstanding undertaking to re-examine the issue at domestic level. Just as with claims under Article 41 of the Convention, the Court normally looks only to the items actually claimed and will not of its own motion consider whether the applicant has been otherwise prejudiced (see Nagmetov v. Russia [GC], no. 35589/08, § 68, 30 March 2017). This approach is capable of preventing situations such as the one before the Court in the Jeronovičs case , in which the applicant initially rejected the declaration solely because of an insufficient amount of compensation , but later raised a complaint about the absence of a clause requiring the respondent State to reopen the criminal investigation (see Jeronovičs v. Latvia ( dec. ), no. 547/02, § 47, 10 February 2009, and Jeronovičs [GC] , cited above, §§ 23 and 37).

25 . On the first issue, the Court reiterates that when an applicant has suffered an infringement of his right to a fair hearing guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been , had the requirements of that provision not been disregarded. The re-examination of the case would be the most appropriate form of redress in the situation where the violation stemmed from procedural errors or shortcomings of such gravity that a serious doubt was cast on the outcome of the domestic proceedings complained of (see Moreira Ferreira v. Portugal (no. 2) [GC] , no. 19867/12, §§ 48-49, ECHR 2017 ( extracts ), and Davydov , cited above, § 27, both citing the Committee of Ministers ’ Recommendation No. R(2000)2 to member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights). The complete exclusion of the applicant from the proceedings to which he was a party without putting in place any counterbalancing arrangements amounts to a breach of the principle of a fair trial and casts doubt on the outcome of the proceedings (see Yevdokimov and Others , cited above, § 52). Russian court s appear to have endorsed that view by acced ing to an applicant ’ s request for the reopening of proceedings following the Court ’ s finding of a violation (see the Khabarovsk Regional Court ’ s appeal judgment in paragraph 14 above). The Court finds no reason to hold otherwise and finds that, were a violation of the Convention alleged in the present case to be established, the appropriate form of redress would be to provide the applicant s with a possibility to apply for the reopening of proceedings. It is however important to reiterate that making use of that possibility does not prejudge a domestic court ’ s decision on whether such a reopening should be granted on the facts of the specific case , having regard to the principle of res judicata or legal certainty in civil litigation, in particular where such litigation concerned private parties with their own legitimate interests to be protected (see Davydov , cited above, § 29 ; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 57-58, ECHR 2015, and Yevdokimov and Others , cited above, § 59 , and compare with the Perm Regional Court ’ s judgment in paragraph 14 above ).

B . Admissibility

28 . The Government submitted that the applications by Mr Khvorostyanoy and Mr Resin had been lodged more than six months after the final judgments in their cases and were therefore belated.

29 . Mr Resin submitted in reply that he had first become aware of the appeal court ’ s decision on 20 October 2014 when he had received a copy of it from the prison authorities. He enclosed a copy of the document which he had signed for its receipt on that date. Mr Khvorostyanoy replied that he had handed over a completed application form to the prison authorities already on 25 June 2014. He produced a copy of the covering letter of that date.

30 . The Court reiterates its constant approach that it is in line with the object and purpose of Article 35 § 1 for the six-month time-limit to start running on the date of service of a copy of a final domestic decision delivered in the context of exhaustion of domestic remedies (see Sabri Güneş v. Turkey [GC] , no. 27396/06 , § 53, 29 June 2012, with further references). Mr Resin was not present or represented at the appeal hearing before the Khabarovsk Regional Court and he first became aware of the existence of the appeal judgment and of its contents on 20 October 2014 when the prison authorities passed that judgment on to him . Having regard to the elements provided by Mr Resin, the Court establishes 20 October 2014 as the starting date of the six-month time-limit and finds that the application was not belated , having been submitted as it was on 17 April 2015.

31 . The situation of Mr Khvorostyanoy is rather unusual. It appears from the documents in the case file that he handed over a completed application form to the prison authorities for despatch on 25 June 2014 , but for reasons he did not elaborate upon , he put the date of 26 June 2014 on its last page. Whether he post-dated it on purpose or in error, what is important is that the application was ready to be mailed on 25 June 2014. Any further delays were attributable to the prison authorities and were outside Mr Khvorostyanoy ’ s control. In these circumstances, the Court takes 25 June 2014 as the date of introduction and holds that Mr Khvorostyanoy ’ s application concerning the proceedings that ended with the Kaliningrad Regional Court ’ s judgment of 25 December 2013 was not belated.

32 . The Court notes that the complaints by Mr Igranov , Mr Zhundo , Mr Khvorostyanoy , Mr Resin, Mr Malygin and Mr Lupanskiy are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

C . Merits

33 . With the exception of Mr Khvorostyanoy and Mr Resin, the Government acknowledged a violation of Article 6 § 1 of the Convention in respect of the other applicants on account of the domestic courts ’ refusal of their requests for leave to appear in court.

34 . In the leading case of Yevdokimov and Others (cited above), the Court found a violation of Article 6 § 1 of the Convention in respect of a similar set of circumstances . The incarcerated applicants in that case were not afforded an opportunity to attend hearings in the civil proceedings to which they were parties. The Court held that the Russian courts had failed, firstly, to carry out a proper assessment of the nature of the civil claims with a view to deciding whether the applicants ’ presence was necessary, and secondly, to consider appropriate procedural arrangements enabling the applicants to be heard, thereby depriving them of the opportunity to present their cases effectively (ibid., § 52).

I II . APPLICATION OF ARTICLE 41 OF THE CONVENTION

37 . 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.”

38 . The Government submitted that Article 41 was to be applied in accordance with the established case-law.

41 . Lastly, t he Court rejects the claim for costs and expenses, finding that it has not been shown that the applicants have made, or are liable to make, any disbursements to their representatives before the Court .

I V . APPLICATION OF ARTICLE 46 OF THE CONVENTION

42 . The relevant parts of Article 46 of the Convention read:

“1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

...

5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. ...”

43 . The Court reiterates that a judgment in which it finds a breach of the Convention imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, general measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible its effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention. However, with a view to helping the respondent State to fulfil that obligation, the Court may seek to indicate the type of general measures that might be taken in order to put an end to the situation it has found to exist (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, §§ 158-59, ECHR 2014; Stanev v. Bulgaria [GC], no. 36760/06 , §§ 254-55, ECHR 2012; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009; and Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004 ‑ V).

A. The parties ’ arguments as to the suitability of the pilot-judgment procedure

44 . The Government submitted that recourse to the pilot-judgment procedure was not necessary. As regards general measures, they affirmed their commitment to abide by many of the Court ’ s judgments in which a similar violation of the Convention had been found. They emphasised that the recent Yevdokimov and Others judgment had set out in detail the possible practical arrangements for ensuring prisoners ’ effective participation in civil proceedings. The Government had an obligation to execute that judgment under the supervision of the Committee of Ministers and a separate pilot judgment was not necessary for that purpose. On the issue of individual relief, the Government considered that they would be unable to settle follow-up cases in the same way as they had done in other pilot-judgment proceedings. Their capacity to settle similar cases was limited by reason of the fact that the Court did not consider paying a sum of money to be sufficient redress, while a re-hearing of a civil case was possible only on the basis of a Court judgment finding a violation.

45 . The applicants submitted that Russian law provided no framework governing the personal participation of prisoners in civil proceedings. The higher courts left the first-instance courts a discretionary power to decide whether the prisoner should be granted leave to appear. However, in practice, the first-instance courts refused such leave to 99.9 per cent of prisoners, whether plaintiffs or defendants, in order to avoid the cost of bringing them to hearings. Nor did they offer any alternative arrangements allowing prisoners to take part in civil proceedings. In the applicants ’ view, the absence of clear statutory provisions relating to the participation of prisoners in civil proceedings amounted to a systemic problem , giving rise to repetitive violations of the right to a fair trial.

B. The Court ’ s assessment

46 . The Court reiterates that i n the context of systemic or structural violations , the potential inflow of future cases is an important consideration in terms of preventing the accumulation of repetitive cases on the Court ’ s list , which hinders effective processing of other cases giving rise to violations, sometimes serious, of the rights it is responsible for safeguarding. A systemic or structural problem stems or results not just from an isolated incident or a particular turn of events in individual cases , but from defective legislation, when actions and omissions based thereon have given rise, or may give rise, to repetitive applications (see Gülmez v. Turkey , no. 16330/02, § 60, 20 May 2008; Urbárska Obec Trenčianske Biskupice v. Slovakia , no. 74258/01, § 148, 27 November 2007; and Hutten ‑ Czapska v. Poland [GC], no. 35014/97, §§ 235- 37, ECHR 2006 ‑ VIII).

47 . The Convention issue in the present case is an unjustified restriction on the applicants ’ right to present their cases effectively before civil courts because of their position as remand or convicted prisoners. This issue is not new and has been the subject of well-established case-law . S ince one of the first judgments finding a violation of Article 6 § 1 (see Kovalev v. Russia , no. 78145/01, §§ 30-38, 10 May 2007), the Court has highlighted the widespread nature of the problem in more than a hundred cases in which Russian courts had refused to secure the attendance of imprisoned applicants wishing to take part in hearing s on their civil claims (see the cases listed in Yevdokimov and Others , cited above, § 32). Russia ’ s highest courts – the Constitutional Court and the Plenary Supreme Court – have directed their attention to the issue on several occasions , providing specific indications on how to secure the rights of incarcerated litigants within the framework of the existing legislation and how to comply with the requirements of Article 6 § 1 (ibid., §§ 12-15). In 2016, the Court adopted a leading judgment consolidating its approach to the problem and traced its origin to an apparent deficiency in the Russian legal system , which makes no provision for detainees ’ participation in civil proceedings (see Yevdokimov and Others , cited above, § 60). The number of incoming applications that are prima facie admissible went down in 2016 and 2017. However, the main reason for that development appears to be the Court ’ s decision to recognise that the two-tier cassation in civil proceedings is an effective remedy that needs to be exhausted (see Abramyan and Others v. Russia ( dec. ), nos. 38951/13 and 59611/13, 12 May 2015) . Nevertheless, in the last two years the Court has processed approximately fifty such applications, of which two thirds were lodged in 2017. Noting that the legislative framework has not evolved at the domestic level and that Russian courts have not followed the directions given by the Constitutional Court and the Supreme Court , the Court finds that the actions based on defective legislation and inconsistent judicial practice amount to a structural problem which give s rise to repetitive applications.

48 . That being said, the Court observes that it has provided a comprehensive outline of the issues that need to be addressed by the Russian courts, and of the counterbalancing measures that they need to put in place, in order to secure the incarcerated litigants ’ right to a fair trial (see Yevdokimov and Others , cited above, §§ 33-48). It has also reiterated that the existing situation calls for the adoption of general measures by the respondent State , which remains, subject to monitoring by the Committee of Ministers, free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment (ibid., § 60). Since that judgment was adopted less than two years ago, t he Court will abstain at th e present time from formulating general measures or applying the pilot-judgment procedure , considering that the indications provided above will help to ensure the proper execution of the present judgment under the supervision of the Committee of Ministers (see Savriddin Dzhurayev v. Russia , no. 71386/10 , § 264, ECHR 2013 (extracts)) . It is for the Committee of Ministers to assess the effectiveness of the measures proposed by the Russian Government and to follow up on their subsequent implementation in line with the Convention requirements (see Lindheim and Others v. Norway , nos. 13221/08 and 2139/10 , § 137, 12 June 2012 ).

49 . Should the efforts made by the Government to tackle the underlying Convention problem prove to be insufficient, the Court may reassess the need to apply the pilot-judgment procedure to this type of case s (see Rutkowski and Others v. Poland , nos. 72287/10 and 2 others, §§ 203 ‑ 06, 219 et passim , 7 July 2015; Gazsó v. Hungary , no. 48322/12 , §§ 32-33 and 35, 16 July 2015, and Novruk and Others v. Russia , nos. 31039/11 and 4 others, § 135, 15 March 2016).

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications;

2. D ecides to strike the applications lodged by Mr Kuznetsov , Mr Siverkov and Mr Sulimov out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

3 . Declares the complaints lodged by Mr Igranov , Mr Zhundo , Mr Khvorostyanoy , Mr Resin, Mr Malygin and Mr Lupanskiy admissible;

4 . Holds that there has been a violation of Article 6 § 1 of the Convention;

5. Holds

(a) that the respondent State is to pay, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1, 5 0 0 (one thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to each of the applicants Mr Igranov , Mr Zhundo , Mr Khvorostyanoy , Mr Resin, Mr Malygin and Mr Lupanskiy , to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on such amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;

6. Rejects the remainder of the applicants ’ claims.

Done in English, and notified in writing on 20 March 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

             Stephen Phillips Helena Jäderblom Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Keller is annexed to this judgment.

H.J.

J. S.P.

CONCURRING OPINION OF JUDGE KELLER

I. Introduction

1 . For the reasons set out in paragraphs 33–36 of the present judgment I am in full agreement with the majority of my colleagues that there has been a breach of the principle of a fair trial under Article 6 § 1 of the Convention as a result of the applicants ’ inability to present their cases effectively before the national courts. However, I am unable to agree with my colleagues ’ conclusion that the pilot-judgment procedure is not suited to the current case.

2 . Despite observing a structural problem which has given rise to repetitive applications, my colleagues conclude that there is no need to adopt a pilot-judgment procedure because the Court has already provided, in a previous case, an outline of the issues that need to be addressed and the counterbalancing measures that need to be adopted. The Court also holds that the situation in the present case does not call for the adoption of general measures. I respectfully disagree with this conclusion and argue that this case was a missed opportunity to adopt a pilot-judgment approach, through which the Court could have provided the respondent Government with concrete indications on how the structural and systemic problem should be resolved. Adopting a pilot judgment would have been in line with previous case-law, would have helped the Court to deal with the large number of pending and incoming cases and would have aided the Committee of Ministers in examining the execution of these judgments.

3 . This opinion sketches the general principles of the pilot-judgment procedure (II.), provides context to this case (III.), and highlights the main reasons why the Court should have adopted a pilot judgement in this case (IV.). I argue that given the systemic and structural problem in the respondent State, which has consistently given rise to a violation of the Convention, the Court should have used this case to indicate what general measures must be taken by the Russian Government to fix the systemic defect and to give current and future applicants a domestic remedy.

II. General principles

4 . Article 46 of the Convention “imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicants which the Court has found to be violated” (see Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 132, ECHR 2014). Such measures must be taken “in respect of other persons in the applicants ’ position, notably by solving the problems that have led to the Court ’ s findings” ( ibid . , § 132). Where structural problems give rise to repetitive applications (in other words, where a large group of identical cases derive from the same underlying problem), the Court has previously adopted the pilot-judgment procedure, which allows it to “clearly identify in a judgment the existence of structural problems underlying the violations and to indicate specific measures or actions to be taken by the respondent State to remedy them” (ibid., § 133; see also Broniowski v. Poland [GC], no. 31443/96, §§ 190 and 191, ECHR 2004-V ) [1] . The case chosen for the pilot-judgment procedure must cover all of the factual and legal aspects of the systemic problem.

5 . After adopting the pilot-judgment procedure the respondent State is subsequently required to eliminate the source of the violation for the future and provide a remedy for the past prejudice suffered by both the applicants in the pilot case and all other victims of the same type of violation (see Burmych and Others v. Ukraine [GC], nos. 46852/13 et al., § 161, ECHR 2017). The pilot-judgment procedure allows “the speediest possible redress to be granted at domestic level to the large number of people suffering from the general problem identified in the pilot judgment, thus implementing the principle of subsidiarity which underpins the Convention system” (see Kurić and Others , cited above, § 134). It also reduces the threat to the effective functioning of the Convention system, by reducing the number of similar applications before the Court (see Burmych and Others , cited above, § 159).

6 . Since Broniowski , the Court has delivered a number of pilot judgments where it has directed States to take general measures to solve systemic problems, such as legislative dysfunctions or defective practices affecting property rights [2] , excessive length of proceedings [3] , inadequate conditions of detention [4] , non-enforcement of final domestic judgments and decisions [5] , and other issues [6] . In Burdov v. Russia (no. 2) ( no. 33509/04 , § 122, ECHR 2009) , for example, the applicants claimed that long delays in the enforcement of judgments awarded in their favour violated the Convention. At the outset of that case, the Court noted that “ non-enforcement or delayed enforcement of domestic judgments constitute[d] a recurrent problem in Russia that ha[d] led to numerous violations of the Convention” and remarked further that the Court had “already found such violations in more than two hundred judgments since the first such finding in the Burdov case in 2002” (ibid.) . The Court considered it appropriate to apply the pilot-judgment procedure given the “recurrent and persistent nature of the underlying problems, a large number of people affected by them in Russia and the urgent need to grant them speedy and appropriate redress at the domestic level” (ibid., § 130).

7 . Once the Court has instituted a pilot-judgment procedure, it has some flexibility with regard to the other cases arising from the same problem. Where general measures include a new legal remedy capable of providing sufficient and adequate redress at a domestic level, the Court has declared follow-up cases stemming from the same systemic issue inadmissible for non-exhaustion of local remedies and “repatriated” them to the respondent States (see, for instance, Xynos v. Greece , no. 30226/09, 9 October 2014). Where States have introduced domestic legislation that provided existing and potential victims with relief at the domestic level, the Court has simply struck out cases already on its list ( see, for instance, E.G. v. Poland and 175 Other Bug River applications v. Poland ( dec. ), no. 50425/99 , §§ 22 ‑ 25, ECHR 2008 (extracts)).

III. Context

8 . The Court has already established that there is a “deficiency in the Russian legal system, which makes no provision for detainees ’ participation in civil proceedings” in Yevdokimov and Others v. Russia (nos. 27236/05 and 10 others, § 60, 16 February 2016), the leading judgment dealing with the issues presented before the Court today (see paragraph 47 of the judgment). That decision came after the Court had already “highlighted the widespread nature of the problem in many previous cases that [had] come before it” (see Yevdokimov and Others , cited above, § 60). The Court also noted that the situation “call[ ed ] for the adoption of general measures by the respondent State”, although it agreed that the State was “free to choose the means by which it will discharge its legal obligations under Article 46 of the Convention” (ibid.).

9 . Since Yevdokimov and Others , the Court has processed approximately fifty applications alleging the same deficiency (see paragraph 47 of the judgment), and it does not look as though this influx of cases will stop any time soon. According to the information in the Court ’ s Registry database, three to five new and prima facie admissible cases are coming before the Court each month on this exact same issue, amounting potentially to about 60 cases per year. Furthermore, Russia currently has over 600,000 prisoners [7] , making the potential of additional incoming cases quite substantial [8] .

IV. Application of principles to the present case

10 . The Court, in the present case, noted that “the legislative framework has not evolved at the domestic level and that Russian courts have not followed the directions given by the Constitutional Court and the Supreme Court” on how to remedy this issue (see paragraph 47 of the judgment). The actions of the respondent State, the Court further held, “[are] based on a defective legislation and inconsistent judicial practice [and therefore] amount to a structural problem which gives rise to repetitive applications” (ibid.).

11 . This case highlighted the deficiency in the Russian legal system, the widespread and long-term nature of the problem and the defective legislation and inconsistent judicial practice. Coupled with the numerous applications that have already come and will continue to come before the Court, this case created a perfect opportunity for the Court to have adopted a pilot-judgment procedure. This would have been in line with the Court ’ s case-law and would have afforded the Court a practical benefit in dealing with the large number of repetitive cases. The judgment seems to lead to the same conclusion, noting that there are structural deficiencies within the Russian system, that these deficiencies have led to the issues alleged by numerous applicants before the Court, that it has been years since the first case on this issue was decided by the Court and that the Court continues to receive dozens of applications on this exact same issue.

12 . However, the Court stops short of adopting a pilot-judgment procedure, stating that it has already “provided a comprehensive outline of the issues that need to be addressed by the Russian courts, and of the counterbalancing measures that they need to put in place, in order to secure the incarcerated litigants ’ rights to a fair trial”, and that “the existing situation calls for the adoption of general measures by the respondent State” (see paragraph 48 of the judgment). The Court also holds that because Yevdokimov and Others was adopted only two years ago, it will abstain from “formulating general measures or applying the pilot-judgment procedure” (ibid.). It considers that the indications already provided will aid in “ ensur [ ing ] the proper execution of the present judgment” with the help of supervision from the Committee of Ministers (ibid.).

13 . While it is true that Yevdokimov and Others was decided only two years ago, this was not the first case of its kind on this issue and not much seems to have changed since then. The Court accepted that before its judgment in Yevdokimov and Others (cited above, § 32) there were already “a large number of cases” in which Russian courts had refused to secure the attendance of imprisoned applicants wishing to take part in hearings on their civil claims. Since then, as mentioned above, about fifty additional applications on the same issue have been lodged with the Court, two-thirds of them in the last year alone (see paragraph 47 of the judgment). It is clear that “the legislative framework has not evolved at the domestic level” and that Russia has not been able or willing to implement the changes needed to give these individuals a proper domestic remedy (ibid.). By failing to implement a pilot-judgment procedure in this case, the Court is avoiding a problem it will inevitably find itself faced with time and time again in the future.

14 . Had the Court adopted a pilot judgment, it would have had the opportunity to provide concrete indications on how this structural problem should be resolved by suggesting what general measures the respondent State should implement. This would also have helped the Committee of Ministers in examining the execution of these judgments. The Court need not have invented solutions to this problem. Not only has the Court itself already “provided a comprehensive outline of the issues that need to be addressed”, it has also already noted “the counterbalancing measures [the Russian courts] need to put in place” to resolve the issue (see paragraph 48 of the judgment, citing Yevdokimov and Others , cited above, §§ 33-48). As in previous pilot judgments, the Court could have asked the respondent State for an action plan of measures to be implemented that would be able to address the issues that such widespread problems have created. The Court could then have adjourned for a set period of time (for example, one year) all proceedings in cases not yet communicated to the respondent Government, to give the State the opportunity to prepare such a plan and to begin to implement the required measures (see, for instance, Torreggiani and Others v. Italy , nos. 43517/09 and 6 others, points 4 and 5 of the operative provisions, 27 May 2013).

15 . The Court could have also looked to the Russian judiciary for guidance on what measures were required. Both the Constitutional Court and Supreme Court have provided lower courts with directions on how to solve the structural problem (see paragraph 47 of the judgment). The pilot judgment would simply have turned these suggestions into concrete indications that the Russian Government would then have been required to implement. Rather than waiting and hoping that the respondent Government would follow the suggestions, the Court could have indicated more concrete solutions. A particular feature of the Russian legal system is that the rules of civil procedure stipulate that proceedings must be concluded orally (Article 157 of the Code of Civil Procedure), and make no provision for dispensing with an oral hearing or conducting the proceedings in writing (Articles 155, 327 (currently in force) and 350 (formerly in force) of the Code of Civil Procedure; see also Yevdokimov and Others , cited above, § 27). The right to be present in person is not, in principle, subject to any formalities and parties need not seek leave from the court to appear in order to attend a hearing (see Yevdokimov and Others , cited above, § 28). These rules prevent Russian courts from adjudicating any claims or disputes without holding a hearing and grant all parties a right to attend and to make submissions to the bench orally (ibid., § 30). Nevertheless, despite this structural feature of the Russian legal system, it would not be impossible to find a practical solution to ensure that all individuals have an opportunity to present their case orally. Making oral submissions before a court does not necessarily mean that a party must physically be present in the courtroom. Alternative measures, such as video-conferencing where distance or security issues make hearings in person particularly difficult, could ensure that the applicants ’ rights are upheld and could provide some flexibility to the domestic courts.

V. Conclusion

16 . The Court ’ s hesitation in adopting a pilot judgment in this case is ultimately detrimental to both the Court itself and the numerous applicants that will continue to appeal to it for relief they are unable to obtain in their domestic courts as a result of a system-wide shortcoming in the Russian judicial system. Had the Court formulated concrete general measures through the application of the pilot-judgment procedure, it would have lightened its load by dismissing repetitive applications and ensured speedier and appropriate redress at the domestic level. The Court was in a perfect position to require concrete measures from the respondent Government to ameliorate the systemic issues, while still providing the Government with time and flexibility. By failing to do so, the Court has allowed the systemic problems to continue and has created a heavier workload of repetitive incoming cases on this issue.

APPENDIX

No

Application no.

Lodged on

Applicant ’ s name

Date of birth

Representative

First- instance hearing date

First-instance court

Appeal hearing date

Appeal court

42399/13

20/05/2013

Dmitriy Aleksandrovich IGRANOV

21/06/1975

24 January 2013

Leninskiy District Court of the Vladimir Region

16 May 2013

Vladimir Regional Court

24051/14

23/05/2014

Yuriy Aleksandrovich ZHUNDO

28/01/1973

Represented by Ms O. Druzhkova

13 November 2013

Promyshlennyy District Court of Smolensk

1 April 2014

Smolensk Regional Court

36747/14

Dmitriy Aleksandrovich KHVOROSTYANOY

10/07/1979

5 August 2013

Bagrationovskiy District Court of the Kaliningrad Region

25 December 2013

Kaliningrad Regional Court

60710/14

12/11/2014

Igor Valeryevich KUZNETSOV

23/07/1971

29 January 2014

Leninskiy District Court of Voronezh

19 June 2014

Voronezh Regional Court

3741/15

21/12/2014

Sergey Aleksandrovich SIVERKOV

28/05/1965

8 August 2014

Chernyakhovsk Town Court of the Kaliningrad Region

24 September 2014

Kaliningrad Regional Court

7615/15

23/03/2015

Anton Aleksandrovich SULIMOV

07/12/1983

8 April 2014

Zavodskoy District Court of Saratov

30 September 2014

Saratov Regional Court

24303/15

17/04/2015

Andrey Igorevich RESIN

29/07/1974

Represented by Mr A. Molostov

11 November 2013

Tsentralnyy District Court of Khabarovsk

24 September 2014

Khabarovsk Regional Court

24307/15

30/04/2015

Sergey Vasilyevich MALYGIN

26/08/1973

Represented by Ms N. Radnayeva

8 October 2014

Medvezhyegorskiy District Court of the Kareliya Republic

12 December 2014

Supreme Court of the Kareliya Republic

24605/15

13/04/2015

Dmitriy Gennadyevich LUPANSKIY

07/07/1975

Represented by Ms V. Bokareva

7 August 2014

Gvardeyskiy District Court of Kaliningrad

12 November 2014

Kaliningrad Regional Court

[1] The procedural framework of the pilot-judgment procedure is set out in Rule 61 of the Rules of Court.

[2] See, for example, Hutten - Czapska v. Poland [GC], no. 35014/97, § 238, ECHR 2006 - VIII.

[3] See, for example, Lukenda v. Slovenia , no. 23032/02, ECHR 2005 - X.

[4] See, for example, Torreggiani and Others v. Italy , nos. 43517/09 and 6 others, 8 January 2013.

[5] See, for example, Burdov v. Russia (no. 2) , no. 33509/04, ECHR 2009 .

[6] See, for example, Kurić and Others , cited above .

[7] As of 1 January 2018, the total number of prisoners in Russia, according to the national prison administration, is 602 , 176. See World Prison Data Brief – Russian Federation , http://www.prisonstudies.org/country/russian-federation .

[8] As was held in Hutten- Czapska (cited above, § 236), and later restated in Kurić and Others v. Slovenia ((merits) [GC], no. 26828/06, § 414 , ECHR 2012 ), “the potential inflow of future cases is also an important consideration in terms of preventing the accumulation of repetitive cases on the Court’s docket” .