JOINT DISSENTING OPINION OF JUDGES LEMMENS AND MOUROU-VIKSTRÖM

1. We regret that we cannot share the view of the majority that there has been a violation of Article 6 § 1 of the Convention in this case

We agree with the general principles as set out in paragraphs 30 ‑ 34 of the judgment. Our disagreement is with the application of these principles in the present case.

2. The majority basically considers that the Harju County Court did not explicitly state the reasons for its decision not to hold an oral hearing notwithstanding the applicant ’ s request for such a hearing and notwithstanding his request that evidence be taken from him and two forensic experts (paragraphs 36-37 of the judgment).

We agree that a court dismissing a request for an oral hearing should, as a matter of principle, give reasons why it believes that the absence of the requesting party from the hearing will not be prejudicial to the fairness of the proceedings (see Yevdokimov and Others v. Russia , nos. 27236/05 and 10 others, § 36, 16 February 2016). However, the absence of such reasons does not, in our view, lead to the conclusion that the right to a fair trial has been violated if, in light of all the circumstances, the party is able to understand the reasons why his request has in fact been denied (compare Taxquet v. Belgium [GC], no. 926/05, § 92, ECHR 2010).

3. In this case the County Court dismissed the applicant ’ s request for an oral hearing with a reference to Article 404 of the Code of Civil Procedure, according to which a written procedure could be applied when the claim was below a certain amount and a party ’ s appearance in court was significantly hindered by a long distance or for any other good reason (see paragraph 12 of the judgment).

This statement must be read in light of the nature of the claim brought before the court. The plaintiff ’ s claim was for compensation for damage caused during the commission of the murder for which the applicant had been convicted by a judgment that had become final (see paragraphs 7-8 of the judgment). It was, in other words, a claim relating to the civil consequences of a crime which had already been dealt with, after oral hearings, by a criminal court.

The applicant was obviously very well aware of these facts. The fact that in his written defence he argued that he had not committed a murder, but had acted in self-defence (and asked to be heard in person, together with two witnesses, in order to confirm that point of view), could not alter the nature of the claim.

In our opinion there could be no doubt that if the request for a hearing was denied, the “good reason” for doing so, within the meaning of Article 404 of the Code of Civil Procedure, was the very specific nature of the claim. If there had been an oral hearing, the applicant would have put forward his self-defence argument and have tried to obtain a decision different from the one in his criminal case. Whether or not this would have been possible is a legal issue which might be decided in written proceedings. Moreover, we doubt that the fairness of the trial would require an oral hearing during which the confusion between the respective competences of the criminal and the civil court would come to the fore.

4. Added to that was the fact that the applicant was imprisoned abroad. With reference to Article 404 of the Code of Civil Procedure, the applicant ’ s appearance in court was significantly hindered by the long distance.

5. Since the applicant was given ample opportunity to put forward his case in writing, we consider that in the given circumstances his right to a fair trial was respected.