THIRD SECTION
DECISION
Application no. 51779/10
Rafail Fidachiyevich LUKMANOV against Russia
and 2 other applications
(see appended table)
The European Court of Human Rights (Third Section), sitting on 5 July 2018 as a Committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant in application no. 67608/17,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The list of applicants is set out in the appended table.
The applicants’ complaints under Article 6 § 1 of the Convention concerning their absence from civil proceedings were communicated to the Russian Government (“the Government”).
THE LAW
A. Joinder of the applications
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
B. Complaints under Article 6 § 1 of the Convention
The applicants complained under Article 6 § 1 of the Convention that they and/or their representatives had not been able to attend the appeal hearings in their cases. 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 ...”
1. Applications nos. 51779/10 and 59377/10
As regards the two applications indicated above, the Government stated that the applicants, who had been properly represented, and their representatives had been duly informed of the appeal hearings and could have attended. Moreover, the applicant in application no. 51779/10 had clearly waived his right to take part in the hearings when he had authorised the appeal court to proceed in his absence, if the court considered it necessary.
The Court reiterates that the domestic courts are under an obligation to ascertain, on the basis of available evidence, whether the parties were duly served with the information about the forthcoming hearing, for litigants must be apprised of their respective hearing in such a way as to have an opportunity to attend it, should they decide to exercise the right to personal presence, as established under Russian law. It is on the basis of the domestic courts’ reasoning that the Court will decide whether litigants were afforded an adequate opportunity to present their case effectively (see Gankin and Others v. Russia, nos. 2430/06 and 3 others, §§ 39-40, 31 May 2016). At the same time, unlike in criminal matters, the domestic courts cannot be held accountable for not tracking down absent parties to the civil proceedings (see Saura Bustamante v. Spain (dec.), no 43555/98, 29 August 2000, and Sevillano González v. Spain (dec.), no 41776/98, 2 February 1999), provided that such parties had knowledge of the civil action brought against them (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 77, 4 March 2014). Moreover, if a litigant has attended the first-instance trial in respect of his particular case, the importance of his attendance at subsequent appeal hearings is not so great (see Sarnatskaya v. Russia (dec.), no. 71676/01, 23 May 2006).
Turning to the circumstances of the present case, the Court notes that both the applicants and their representatives were duly informed of the time of the appeal hearings and the court in which they were to be held. The summons contained sufficient information about the date and hour of the hearings and were properly served on the parties.
The Court also notes that the applicants, of their own choice, did not attend the first-instance hearings, having opted for representation, including by a lawyer, and having authorised the courts to examine the matters in their absence. The representatives were present at the hearings before the first-instance courts and thus were able to introduce their arguments, submit evidence and challenge the arguments of the opposing parties. The representatives also filed the appeal statements. Furthermore, no new evidence was produced or examined on appeal, and even the opposing party was absent in the case of the applicant, Ms Asanova, when the appeal court decided that it could dispense with the hearing in view of the lack of the necessity to examine evidence (see Godlevskiy v. Russia (dec.), no. 14888/03, 9 December 2004). The Court also noted that neither the applicant, Ms Asanova, nor her representatives informed the appeal court of the reasons for their absence or asked for the adjournment of the proceedings. As regards the applicant, Mr Lukmanov, both he and his representative authorised the appeal court to proceed in their absence should it deem it necessary for the expediency of justice. The Court cannot but agree with the Government that that written authorisation amounted to the unequivocal and voluntary waiver of their right to be present at the hearing.
In view of the above, the Court finds that these applications are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
2. Application no. 67687/16
As regards application no. 67687/16, the Government insisted that the applicant had not complied with the six-month requirement. Without losing site of the fact that the final judgment in the applicant’s case had been issued on 13 April 2016 by the Russian Supreme Court, acting as the cassation instance, the Court does not find it necessary to deal with the Government’s argument as the application is in any event inadmissible for the following reasons.
The applicant brought before the Russian courts a claim concerning some discrepancies in the penitentiary authorities’ actions and the internal regulations, covering those actions.
The Court considers that the provisions of the Convention do not apply to the proceedings in question. It notes further that the proceedings neither concerned a criminal charge against the applicant, not touched upon any civil right or obligation of the applicant, having been, as it seems, purely of technical nature insofar as the internal regulations of the penitentiary authorities were to be applied.
Having considered the nature of the proceedings in question, the Court finds that the applicant did not bring contentious proceedings falling within the scope of Article 6 of the Convention.
It follows that the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 26 July 2018.
Liv TigerstedtAlena Poláčková
Acting Deputy RegistrarPresident
APPENDIX
List of applications raising complaints under Article 6 § 1 of the Convention
(applicant’s absence from civil proceedings)
No.
Application no.
Date of introduction
Applicant name
Date of birth
Representative name and location
Nature of the dispute
Final decision
First-instance hearing date
Court
Appeal hearing date
Court
51779/10
11/06/2010
Rafail Fidachiyevich Lukmanov
06/07/1957
consumer rights’ dispute
15/04/2011
Zavolzhskiy District Court of Ulyanovsk
17/05/2011
Ulyanovsk Regional Court
59377/10
08/09/2010
Irina Ivanovna Asanova
10/05/1952
Boyev Dmitriy Alekseyevich
Norilsk
intellectual property dispute
24/11/2009
Norilsk Town Court of the Krasnoyarsk region
10/03/2010
Krasnoyarsk Regional Court
67687/16
23/09/2016
Andrey Igorevich Resin
29/07/1974
unlawfulness of the actions of the remand prison’s authorities insofar as they acted in violation of internal instructions,
final decision - 13/04/2016, Russian Supreme Court
25/12/2014
Kirovskiy District Court of Khabarovsk
09/09/2015
Khabarovsk Regional Court
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