Communicated on 22 April 2016
THIRD SECTION
Application no. 42399/13
Dmitriy Aleksandrovich IGRANOV against Russia
and 18 other applications
(see list appended)
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the cases
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
3. The applicants, who were detained in Russian penal facilities, were claimants in separate sets of civil proceedings. Most of the applicants sought compensation for various aspects of the conditions of their detention, for unlawful criminal prosecution, or for lack of adequate medical care. The applicant Mr Sulimov claimed compensation in respect of non-pecuniary damage sustained on account of allegedly poor legal representation in criminal proceedings.
4. 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.
5. In some cases the applicants’ absence was accounted for in other terms. Mr Amirkhanyan’s presence before the appeal court was considered “unnecessary for the protection of [the applicant’s] rights and from the standpoint of the requirements of justice”, while Mr Mikhanoshin’s leave to appear was refused for the sole reason that “[he] was deprived of [his] liberty”. In the cases of Mr Ochirov and Mr Kulachinskiy, the appeal courts considered that the Code of Civil Procedure “did not give detainees the right to be present at a hearing”. Before assessing the merits of Mr Gorbunov’s claim, the appeal court commented on his absence in the following terms:
“... The fact that an imprisoned convict cannot appear in person before a civil court is not an obstacle to the merits of his case being heard, because otherwise it would have been impossible to attain the objectives of civil proceedings as formulated in the Code of Civil Procedure ...”
In the case of Mr Gorbulin the appeal court held as follows:
“... It follows from the recommendations of the European Court of Human Rights and the Constitutional Court of Russia that a detainee’s participation in civil proceedings may be ensured by way of a video link, provided such an opportunity exists. [The applicant’s] personal presence in court is not in itself the objective of the civil proceedings, but rather a precondition for an objective and comprehensive examination of the [applicant’s] case. The court hearing may therefore ... continue in [the applicant’s] absence.”
6. The applicants’ claims were refused at two levels of jurisdiction. The dates of the final judgments are set out in the appended table.
B. Relevant domestic law and practice
1. Civil Code of Russia
7. The relevant provisions of the Code read as follows:
Article 155: Court hearing
“Civil cases shall be examined in a hearing upon mandatory provision of information to the parties about the time and place of the hearing.”
Article 155.1: Participation in the hearing by means of a video-conference[1]
“1. If the court has facilities for organising a video-conference, the parties and their representatives, as well as witnesses, experts, specialists and interpreters, can take part in the hearing by means of a video-conference. The video-conference is organised at the initiative of the court or at the request of the parties.
2. The parties and their representatives ... participate in the hearing by means of a video-conference using the video-conferencing equipment that is installed in the competent courts at their place of residence, stay or location. For persons who are in remand centres or in penitentiary facilities, the equipment installed in such facilities can be used ...”
Article 157: Direct, oral and continuous character of civil proceedings
“1. The court must take direct cognizance of the evidence in the case, including by hearing the parties and third parties and witness testimony ...”
2. Proceedings are conducted orally before the same judicial formation ...”
Article 160: Opening of the hearing
“At the scheduled time the presiding judge opens the hearing and announces the case to be examined.”
Article 161: Checking the attendance of the parties
“1. The clerk to the court reports to the bench which of the summonsed persons are in attendance, whether the absent persons have been notified [of the hearing] and what information is available about the reasons for their absence.”
Article 327: Procedure for examining cases in the appellate court[2]
“1. The appellate court notifies the parties about the time and place of the appellate hearing.
The appellate court carries out a new examination of the case in a hearing in accordance with the rules of procedure in the first-instance court ...
The parties, their representatives ... may participate in the hearing by means of a video-conference in accordance with the procedure set out in Article 155.1 ...”
2. Code on the Execution of Sentences
8. Article 77.1 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 certain investigative measures 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.
3. Case-law of the Constitutional Court of Russia
9. The Constitutional Court has on several occasions examined complaints by incarcerated individuals whose requests to appear in civil proceedings had been refused by the courts. It declared the complaints inadmissible, finding that the contested provisions of the Code of Civil Procedure and the Code on the Execution of Sentences did not, as such, restrict the convicted person’s access to court or undermine the fairness of the proceedings. It emphasised, nonetheless, that the detainee should be able to make submissions to the court, either through a representative or in some other way provided for by law, such as by means of a video link. If necessary, the hearing may be held at the location where the convicted person is serving his or her sentence or, alternatively, the court hearing the case may instruct the court with territorial jurisdiction over the correctional colony to obtain the detainee’s submissions and carry out any other procedural measures (decisions no. 478-O of 16 October 2003, no. 335-O of 14 October 2004, no. 94-O-O of 21 February 2008, and no. 576-O-P of 19 May 2009).
10. The relevant part of decision no. 94-O-O of 21 February 2008 read as follows:
“It must be borne in mind that a person who is in detention and who is a party to a civil case must be able to exercise his rights: the judge at the preliminary stage ... must send him a letter setting out his rights, including the right to appoint a representative; he should be served in advance with a copy of the claim form ... and other documents, including judicial decisions; he should be allowed sufficient time in view of his situation to appoint a representative, to prepare his legal position and to submit it to the court ...”
11. In its decision no. 576-O-P of 19 May 2009 the Constitutional Court held:
“[Article 77.1 of the Code on the Execution of Sentences] does not prevent the court from deciding that the detainee’s presence at the hearing is mandatory as long as it considers that the interests of justice and of the protection of human rights so require.
... [T]here is an obligation on the court which determines the issue of the detainee’s personal participation at the hearing ... on his civil claim, to take into account all the relevant circumstances, including the [legal] character of the constitutional rights involved and the need to take oral evidence from the detainee at the hearing, and adopt a reasoned decision as to means of ensuring [his] participation in the proceedings.”
4. Case-law of the Supreme Court of Russia
12. In Resolution no. 21 of 27 June 2013 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”, the Plenary Supreme Court issued the following guidance to the courts:
“16. It follows from Article 6 § 1 of the Convention, as interpreted by the European Court of Human Rights, that an imprisoned person has the right to participate in hearings of his civil case.”
COMPLAINT
13. The applicants complain under Article 6 of the Convention that they were denied an opportunity to appear in person before the court in the civil proceedings to which they were parties.
QUESTIONS TO THE PARTIES
1. Was there a violation of the applicants’ right to a fair trial under Article 6 § 1 of the Convention on account of the domestic courts’ failure to ensure the applicants’ participation in the hearings of their cases? In particular, did the domestic courts examine whether the nature of the civil disputes required the applicants’ personal presence (see Gryaznov v. Russia, no. 19673/03, § 49, 12 June 2012)? Did the courts consider any specific arrangements aiming at guaranteeing the applicants’ effective participation in the proceedings (see Vladimir Vasilyev v. Russia, no. 28370/05, § 84, 10 January 2012)?
2. Having regard to the applicants’ situation in the instant cases and to the Court’s findings in many similar cases (see, most recently, Dmitriyev v. Russia, no. 40044/12, §§ 48-51, 24 October 2013; Bortkevich v. Russia, no. 27359/05, §§ 63-69, 2 October 2012; Gryaznov, cited above, §§ 44-51; Karpenko v. Russia, no. 5605/04, § 89-94, 13 March 2012; and Rozhin v. Russia, no. 50098/07, §§ 31-34, 6 December 2011), are these shortcomings indicative of a systemic problem or a structural deficiency of the Russian law? Does this situation amount to “a practice incompatible with the Convention” (see Bottazzi v. Italy [GC], no. 34884/97, § 22, ECHR 1999‑V) requiring adoption of general measures in accordance with Article 46 § 1 of the Convention as interpreted in the light of Article 1 of the Convention? Are the present cases suitable for the pilot-judgment procedure?
Appendix
No
Application no.
Lodged on
Applicant’s details
Date of birth
Represented by
First instance hearing date
Court
Appeal hearing date
Court
42399/13
20/05/2013
Dmitriy Aleksandrovich IGRANOV
21/06/1975
E. Markov
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
13 November 2013
Promyshlennyy District Court of Smolensk
1 April 2014
Smolensk Regional Court
25439/14
03/03/2014
Samvel Sergeyevich AMIRKHANYAN
26/06/1966
1) 15 October 2012;
2) 5 June 2014
1) Gvardeyskiy District Court of the Kaliningrad Region;
2) Leningradskiy District Court of the Kaliningrad Region
1) 23 January 2013; 2) 10 September 2014
Kaliningrad Regional Court
35753/14
09/07/2014
Aleksandr Sergeyevich MIKHANOSHIN
14/01/1984
16 September 2013
Dzerzhinskiy District Court of the Novosibirsk Region
23 January 2014
Novosibirsk Regional Court
36747/14
26/06/2014
Dmitriy Aleksandrovich KHVOROSTYANOY
10/07/1979
5 August 2013
Bagrationovskiy District Court of the Kaliningrad Region
25 December 2013
Kaliningrad Regional Court
40781/14
31/07/2014
Aleksandr Viktorovich VORONIN
27/06/1979
9 December 2013
Leninskiy District Court of Vladimir
18 February 2014
Vladimir Regional Court
47712/14
17/09/2014
Vladimir Nikolayevich GORBUNOV
20/02/1980
15 April 2014
Zavodskoy District Court of Kemerovo
25 September 2014
Kemerovo Regional Court
55804/14
11/03/2015
Igor Viktorovich VLASOV
05/03/1972
19 September 2014
Krasnoglinskiy District Court of Samara
4 February 2015
Samara 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
61607/14
14/08/2014
Vitaliy Vladimirovich OCHIROV
16/08/1964
28 January 2014
Sovetskiy District Court of Ulan-Ude
18 June 2014
Supreme Court of the Buryatiya Republic
69762/14
12/01/2015
Andrey Eduardovich KRESS
08/09/1971
26 March 2014
Kezhemskiy District Court of the Krasnoyarsk Region
21 July 2014
Krasnoyarsk Regional Court
1711/15
23/12/2014
Sergey Yevgenyevich KULACHINSKIY
26/12/1985
13 February 2014
Syktyvkar Town Court of the Komi Republic
17 July 2014
Supreme Court of the Komi Republic
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
7230/15
22/01/2015
Aleksandr Anatolyevich GORBULIN
07/08/1982
16 July 2014
Labytnangi Town Court of the Yamalo-Nenetskiy Region
29 September 2014
Yamalo-Nenetskiy 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
14144/15
29/10/2013
Sergo Dzhanguliyevich KVERNADZE
09/06/1968
1) 2 July 2013;
2) 14 November 2013
Tsentralnyy District Court of Kaliningrad
1) 25 September 2013;
2) 26 February 2014
Kaliningrad Regional Court
24303/15
17/04/2015
Andrey Igorevich RESIN
29/07/1974
S. Zhansugurov
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
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
7 August 2014
Gvardeyskiy District Court of Kaliningrad
12 November 2014
Kaliningrad Regional Court
[1]. This article was inserted by Law no. 66-FZ of 26 April 2013.
[2]. In force since 1 January 2012.
Full & Egal Universal Law Academy