THIRD SECTION

CASE OF BARKOV AND OTHERS v. RUSSIA

( Applications nos. 38054/05, 38092/05, 2178/07, 21770/07, 4708/09, 46303/10, 70688/10, 30537/11 and 43594/11 )

JUDGMENT

Th is version was rectified on 5 September 2016

under Rule 81 of the Rules of Court.

STRASBOURG

19 July 2016

This judgment is final . It may be subject to editorial revision.

In the case of Barkov and Others v. Russia ,

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

Helena Jäderblom , President, Dmitry Dedov , Branko Lubarda , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having deliberated in private on 28 June 2016,

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

PROCEDURE

1 . The case originated in nine applications (nos. 38054/05, 38092/05, 2178/07, 21770/07, 4708/09, 46303/10, 70688/10, 30537/11 and 43594/11) 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”), whose names and the dates on which they introduced their applications are set out in Appendix I.

2 . Some of the applicants were represented by lawyers, whose names are listed in Appendix II. The applicant Mr Fedchenko had been granted legal aid. The Russian Government (“the Government”) were represented by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights.

3 . The applicants complained, in particular, that they had been denied an opportunity to appear in person before the appeal courts in the civil proceedings to which they were parties.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . At the material time all the applicants were detained in Russian penal facilities.

5 . While in detention, the applicants Mr Baban , Mr Barkov and Mr Bogatyrev sought compensation for inadequate conditions of their detention and substandard medical care; the applicants Mr Davydov , Mr Pflyaum and Mr Yakovlev were involved in contract disputes; Mr Fedchenko was the respondent in a divorce claim; Mr Starodubtsev challenged the decision by which he had lost the status of a disabled person; and Mr Shavayev was the defendant in an action for damages brought by the Federal Customs Service.

6 . None of the applicants, apart from Mr Yakovlev, were able to attend the hearings before the courts of first instance. The domestic courts refused the applicants leave to be present at the hearings, on the ground that there was no domestic legal provision for bringing detainees to courts. In some of the cases they quoted Article 77.1 of the Code on the Execution of Sentences (see paragraph 10 below) and the relevant provisions of the Code of Civil Procedure. In the other cases the issue of the applicants ’ presence was left unaddressed. In the first-instance proceedings Mr Shavayev and Mr Starodubtsev were represented by their relatives. Mr Barkov and Mr Davydov were interviewed at courts located near the places of their detention.

7 . The applicants appealed, raising the question of their appearance in court in their appeal statements. Some submitted separate requests seeking leave to appear before the appeal court. The appeal courts either dismissed their arguments and endorsed the findings of the first-instance courts or concluded that their absence from court was in line with the legislation and did not contravene the principle of fairness. None of the applicants were present or represented at the appellate hearings.

8 . The dates of the final judgments are set out in Appendix I.

II. RELEVANT DOMESTIC LAW AND PRACTICE

9 . The relevant provisions of the Code of Civil Procedure (as in force at the material time) read as follows:

Article 347: Scope of review in the cassation court

“1. The cassation court reviews the lawfulness and reasonableness of the first ‑ instance court ’ s judgment on the basis of the arguments contained in the statements of appeal. It assesses the evidence in the case file, but also additional evidence if it determines that such evidence could not have been produced before the first-instance court, and ... may establish new facts and circumstances.

2. In the interests of justice the cassation court may carry out a full review of the first-instance court ’ s judgment.”

10 . Article 77.1 of the Code on the Execution of Sentences provides that a convicted person may be transferred from a correctional colony to a temporary detention facility if his or her participation is required as a witness, a victim or a suspect in connection with some types of investigative measure in a criminal case. It does not mention the possibility for a convicted person to take part in civil proceedings, whether as a claimant or a defendant.

THE LAW

I. JOINDER OF THE APPLICATIONS

11 . The Court notes that all the applicants complained that they had been unable to attend the appellate 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 interests of the proper administration of justice the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

12 . The applicants complained that their right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the appeal courts ’ refusal of their requests to appear. Article 6 § 1 reads in the relevant part as follows :

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

A. Admissibility

13 . T he Government submitted that Mr Bogatyrev ’ s complaint was belated, because it had been introduced on 10 March 2009, that is more than six months after the final domestic decisions in his case (3 September 2008, 2 and 9 June 2009).

14 . The Court notes that the applicant had set out this complaint in his first letter to the Court, dispatched on 15 October 2008, and had elaborated on it in the main application form, sent on 10 March 2009. It follows that the date of introduction of Mr Bogatyrev ’ s application lies within six months of the final decisions in his cases. The Government ’ s objection should therefore be dismissed.

15 . The Court further notes that this part of the application is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

16 . The Government submitted that all the applicants had been duly notified of the hearing dates and that the nature of the legal disputes did not call for their personal attendance. As there is no absolute right to be present at a hearing, the applicants ’ right to effective participation in the proceedings had not been breached. The Government also indicated that as some of the applicants participated in the proceedings before the courts of first instance (see paragraph 6 above), their presence before the appeal courts was unnecessary.

17 . The applicants maintained that their exclusion from the appellate proceedings had placed them at a disadvantage vis-à-vis their opponents.

19 . The Court notes that, as in many similar cases against Russia, the applicants were denied leave to appear by reference to the absence of any legal norm making their presence mandatory (see Bortkevich v. Russia , no. 27359/05, §§ 63-69, 2 October 2012; Karpenko v. Russia , no. 5605/04, §§ 89-94, 13 March 2012; Roman Karasev v. Russia , no. 30251/03 , § 68, 25 November 2010 ; Artyomov v. Russia , no. 14146/02, §§ 204-08, 27 May 2010; and Shilbergs v. Russia , no. 20075/03 , § 107, 17 December 2009 ). The Court has rejected this approach as being excessively formalistic, because the absence of legislation on prisoners ’ attendance at hearings cannot be interpreted as sufficient grounds for depriving them of the right to appear (see Gryaznov v. Russia , no. 19673/03 , § 50, 12 June 2012 ). Contrary to the Government ’ s claim that the applicants could have effectively presented their cases to the courts because they had all been duly informed of the hearings, merely informing the applicants of the appeal hearing dates was clearly insufficient in a situation where the current state of the domestic law in reality prevented them from attending.

20 . The Government also submitted that the nature of the legal disputes did not require the applicants ’ personal presence at the appellate hearings, and invited the Court to examine whether or not the applicant ’ s presence was necessary in each case. However, the Court cannot substitute its own assessment for the decisions of the domestic courts, which have the advantage of possessing direct knowledge of the situation and are better placed to determine the nature of each claim and the underlying legal interests (see Lagardère v. France , no. 18851/07 , § 42, 1 2 April 2012 ). In the present cases the appeal courts did not verify whether the nature of the civil disputes required the applicants ’ personal testimony and whether their attendance was essential to ensure the overall fairness of the proceedings. As it happened, the appeal courts denied the applicants the opportunity to attend the hearings, irrespective of the subject matter of the proceedings, and did not apprise them of that decision sufficiently in advance (see Gryaznov , cited above, § 48, and Khuzhin and Others v. Russia , no. 13470/02, § 107, 23 October 2008) .

21 . The Court lastly observes that the applicants ’ effective participation in the appeal hearings could have been ensured by making procedural arrangements such as, for example, using video link facilities or conducting an off-site hearing (see Shilbergs , cited above, § 107, and Sokur v. Russia , no. 23243/03 , § 36, 15 October 2009 ). The appeal courts did not consider those options at all, and embarked on hearing the cases on the merits without informing the applicants about possible ways to make up for their absence from the courtroom. As a result, the applicants were unable to decide on further courses of action for the defence of their rights and were deprived of an opportunity to present their cases effectively before the appeal courts, in breach of Article 6 of the Convention.

22 . Having regard to its previous case-law and the circumstances of the present case, the Court finds that by denying the applicants the opportunity to be present at the appeal hearings in civil proceedings to which they were parties on the sole grounds of deficiencies in the domestic law, and by failing to consider appropriate procedural arrangements enabling the applicants to be heard, the domestic courts failed to meet their obligation to ensure respect for the principle of a fair trial enshrined in Article 6 of the Convention.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

24 . The Court has also examined the other complaints submitted by the applicants. However, having regard to all the material in its possession and in so far as those complaints fall within the Court ’ s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the applications must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

25 . 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

26 . The applicants claimed various amounts in respect of pecuniary and non-pecuniary damage. The Government considered their claims to be excessive.

27 . The Court does not discern any causal link between the violation found under Article 6 of the Convention and the pecuniary damage alleged by some of the applicants; it therefore rejects these claims. On the other hand, it awards 1,500 euros ( EUR ) in respect of non-pecuniary damage, plus any tax that may be chargeable, to each of the applicants.

28 . The Court holds 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 most appropriate form of redress would, in principle, be the possibility for the applicant to request reopening of the proceedings. In the recent case of Bochan v. Ukraine (no. 2) ( no. 22251/08 , ECHR 2015), the Grand Chamber laid down the principles applicable to the reopening of terminated civil proceedings on the basis of the Court ’ s judgment (further case references, in brackets, omitted):

“57. ... the Court would reiterate that it is for the Contracting States to decide how best to implement the Court ’ s judgments without unduly upsetting the principles of res iudicata or legal certainty in civil litigation, in particular where such litigation concerns third parties with their own legitimate interests to be protected. Furthermore, even where a Contracting State provides for the possibility of requesting a reopening of terminated judicial proceedings on the basis of a judgment of the Court, it is for the domestic authorities to provide for a procedure to deal with such requests and to set out criteria for determining whether the requested reopening is called for in a particular case. There is no uniform approach among the Contracting States as to the possibility of seeking reopening of terminated civil proceedings following a finding of a violation by this Court or as to the modalities of implementation of existing reopening mechanisms ...

58. However, the foregoing considerations should not detract from the importance, for the effectiveness of the Convention system, of ensuring that domestic procedures are in place which allow a case to be revisited in the light of a finding that Article 6 ’ s safeguards of a fair trial have been violated. On the contrary, such procedures may be regarded as an important aspect of the execution of its judgments as governed by Article 46 of the Convention and their availability demonstrates a Contracting State ’ s commitment to the Convention and to the Court ’ s case-law ( ... ). The Court recalls in this connection Recommendation No. R (2000) 2 adopted by the Committee of Ministers, in which the States Parties to the Convention are called upon to ensure that there are adequate possibilities of reopening proceedings at domestic level where the Court has found a violation of the Convention ( ... ). It reaffirms its view that such measures may represent the most efficient, if not the only, means of achieving restitutio in integrum ( ... ).”

29 . In this connection, the Court reiterates that in Russia a finding by the Court of a violation of the Convention or its Protocols is a ground for reopening civil proceedings under Article 392 §§ 2(2) and 4(4) of the Code of Civil Procedure and for reviewing the domestic judgments in the light of the Convention principles established by the Court (see Davydov v. Russia , no. 18967/07 , §§ 10-15, 30 October 2014 ).

B. Costs and expenses

30 . Mr Davydov claimed approximately EUR 760 in legal costs but did not submit any supporting documents. Mr Bogatyrev sought reimbursement of EUR 2,250, representing legal fees and postal expenses. Mr Pflyaum and Mr Starodubtsev claimed EUR 2,200 each for the work of their representative. Mr Shavayev ’ s claim in respect of legal fees and postal expenses amounted to EUR 3,413. The applicants Mr Barkov , Mr Fedchenko , Mr Baban and Mr Yakovlev did not make a claim for costs or expenses.

31 . The Government contested the claims as excessive and unsubstantiated.

32 . According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, costs and expenses are only recoverable in so far as they relate to the violation found (see, among many other authorities, Andrejeva v. Latvia [GC], no. 55707/00, § 115, ECHR 2009). In the present cases, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sums set out in Annex II, plus any tax that may be chargeable to the applicants, payable into the bank accounts of the applicants’ representatives. [1]

C. Default interest

33 . The Court considers it appropriate that the default interest rate 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,

1. Decides to join the applications;

2. Declares the complaint concerning the unfairness of the civil proceedings admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 6 of the Convention;

4. Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts listed in Appendix II, plus any tax that may be chargeable, 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;

4. Dismisses the remainder of the applicants ’ claim for just satisfaction.

Done in English, and notified in writing on 19 July 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Helena Jäderblom Deputy Registrar President

Appendix I.

Facts

Application number and applicant ’ s name

Date of intro- duction

Name of the court and date of the final decision in the civil proceedings concerned

38054/05

Aleksandr Gennadyevich Barkov

23/09/2005

Krasnodar Regional Court, 31 March 2005

38092/05

Oleg Vladimirovich Fedchenko

01/08/2005

Kstovo Town Court, 27 June 2005

2178/07

Vladimir Vitalyevich Davydov

01/11/2006

Perm Regional Court,

4 May 2006

21770/07

Danila Aleksandrovich Baban

28/02/2007

Chelyabinsk Regional Court, 23 January 2007

4708/09

Vasily Arkadyevich Bogatyrev

15/10/2008

Krasnoyarsk Regional Court, 1) 3 September 2008; 2) 2 June 2008; 3) 9 June 2008

46303/10

Nikolay Nikolayevich Pflyaum

09/07/2010

Supreme Court of the Khakassiya Republic, 17 June 2010

70688/10

Murat Ismailovich Shavayev

11/05/2010

Moscow Regional Court, 11 February 2010

30537/11

Vyacheslav Nikolayevich Starodubtsev

14/04/2011

Kaliningrad Regional Court, 2 February 2011

43594/11

Andrey Nikolayevich Yakovlev

18/04/2011

Sverdlovskiy Regional Court,

20 January 2011

Appendix II.

Awards made by the Court under Article 41 of the Convention

Application number and applicant ’ s name

Represented by

Award in respect of non-pecuniary damage

Award in respect of costs and expenses [2]

payable into the representatives ’ accounts

38054/05

Aleksandr Gennadyevich Barkov

EUR 1,500

38092/05

Oleg Vladimirovich Fedchenko

O. Druzhkova

EUR 1,500

2178/07

Vladimir Vitalyevich Davydov

EUR 1,500

21770/07

Danila Aleksandrovich Baban

EUR 1,500

4708/09

Vasily Arkadyevich Bogatyrev

E. Markov

EUR 1,500

EUR 850

46303/10

Nikolay Nikolayevich Pflyaum

E. Markov

EUR 1,500

EUR 850

70688/10

Murat Ismailovich Shavayev

F. Tishayev

EUR 1,500

EUR 850

30537/11

Vyacheslav Nikolayevich Starodubtsev

E. Markov

EUR 1,500

EUR 850

43594/11

Andrey Nikolayevich Yakovlev

EUR 1,500

[1] 1. Rectified on 5 September 2016 : the text “payable into the bank accounts of the applicants’ representatives” added.

[2] 1. Rectified on 5 September 2016: the text “payable into the representatives ’ accounts ” added.