Yevdokimov and Others v. Russia

Information Note on the Court’s case-law 193

February 2016

Yevdokimov and Others v. Russia - 27236/05, 44223/05, 53304/07 et al.

Judgment 16.2.2016 [Section III]

Article 6

Civil proceedings

Article 6-1

Fair hearing

Detainees’ inability to attend hearings in civil proceedings to which they were parties: violation

Facts – The domestic courts refused the applicants, who were detainees at the material time, the possibility to attend the hearings in the civil proceedings to which they were parties, on the ground that there was no domestic legal provision enabling detainees to be brought to court.

Law – Article 6 § 1: The rules of Russian civil procedure required courts to hold an oral hearing in all categories of cases without exception. Whenever an oral hearing was held, the parties had the right to attend and to make submissions. Indeed, the right to appear in person before a court was in principle unrestricted in Russian civil proceedings. However, there was no legally established procedure for bringing prisoners to the place where their civil claim was being heard. The Court had found a violation of Article 6 in a large number of cases in which Russian courts had refused to secure the attendance of imprisoned applicants wishing to take part in the hearing of their civil claims, finding their approach excessively formalistic. Just as no provision of domestic law should be interpreted and applied in a manner incompatible with the State’s obligations under the Convention, a lacuna in the domestic law could not be a justification for failing to give full force to the Convention standards.

Before embarking on an analysis of the instant cases, the Court considered it useful to set out the way in which it analysed alleged violations of the right to a fair trial. The Court had first to examine the manner in which the domestic courts had assessed the question whether the nature of the dispute required the applicants’ personal presence. It then had to determine whether the domestic courts had put in place procedural arrangements aiming at guaranteeing their effective participation in the proceedings.

(a) Whether the domestic courts had weighed the necessity of the applicant’s personal presence – In establishing a universal right for parties to civil proceedings to have an oral hearing, the domestic law endowed them with a legitimate expectation that they would be given an opportunity to appear before the judge. That approach went beyond the requirements of Article 6, which did not guarantee the right to an oral hearing or the right to appear before a court in person, but rather enshrined a more general principle of procedural fairness. The Court had previously accepted that in civil proceedings concerning claims of a technical nature, the parties’ presence was of lesser significance. Where the claim was not based on the applicant’s personal experiences, his appearance at the hearing was not considered to be indispensable for the proceedings to be recognised as having been “fair”. Nevertheless, where an applicant was incarcerated and could not freely decide whether or not to attend a hearing, in order for the proceedings to be considered “fair” it was not sufficient that the applicant’s absence should coincide with the absence of the procedural adversary, for such coincidence was merely fortuitous. It was therefore incumbent on the domestic courts, once they became aware that a litigant was in custody, to verify, prior to embarking on the examination of the merits, whether the nature of the case was such as to require the incarcerated litigant’s personal testimony and whether he had expressed a wish to attend. If the domestic courts were contemplating dispensing with the litigant’s presence, they had to provide specific reasons why they believed his absence would not be prejudicial to the fairness of the proceedings as a whole. It fell to them to examine all the arguments for and against holding a hearing in the absence of one of the parties, taking into account, in particular, the Court’s case-law in similar cases and the nature of the contentious issues, and to apprise the incarcerated litigant in good time of their decision and the reasons for it. The decision had to be communicated to the litigant sufficiently in advance so that he had adequate time to decide on a further course of action. It was essentially on the basis of the reasons in the domestic decisions that the Court would determine whether or not the exclusion of an applicant undermined the fair-hearing principle. A lack or deficiency of reasons in the domestic decisions could not be supplemented ex post facto in the proceedings before the Court.

(b) Procedural arrangements – The second limb of the Court’s analysis concerned the counterbalancing measures that needed to be put in place to guarantee that incarcerated litigants could participate in court proceedings effectively. Concrete practical solutions consistent with the fairness requirement needed to be found with regard to the local situation, the technical equipment available in the courthouse and the detention facility, the accessibility of legal aid services, and other relevant elements. Having considered such arrangements, the domestic courts had to inform the detainee accordingly and in good time, so that he had adequate time and facilities to decide on a course of action to defend his rights.

If the claim was based largely on the detainee’s personal experience, his oral submissions to the court would be an important part of his presentation of the case and virtually the only way to ensure adversarial proceedings. Only by testifying in person could the detainee substantiate his claims and answer any questions from the judges. In those circumstances, obvious solutions would be to conduct the proceedings at the place of detention or to use a video link. As regards the use of a video link or videoconferencing equipment, it was important to ensure that the detainee was able to follow the proceedings, see the persons present and hear what was being said. The detainee also had to be seen and heard by the other parties, the judge and witnesses without technical impediment. Organising a court session outside the courtroom was, by contrast, a time-consuming exercise. In addition, holding it in a place such as a detention facility, to which the general public in principle had no access, was attended by the risk of undermining its public character. In such cases, the State was under an obligation to take compensatory measures to ensure that the public and the media were duly informed of the place of the hearing and granted effective access. The taking of evidence on commission was also consistent with the notion of a fair trial. Authority to hear the detainee could be delegated to a judge or a court at a location closer to the custodial facility. Combined with oversight by the trial judge throughout the proceedings to ensure that the detainee was at all times aware of the arguments of the opposing party and able fully and properly to answer them, the questioning of the detainee outside the courtroom would not be contrary to the principle of a fair trial.

In cases where the domestic court determined that it was less important for the detainee to testify in person, the right to a fair trial could be guaranteed by some form of representation. The Russian Legal Aid Act established the criteria for eligibility for legal aid based on the litigant’s income and the type of dispute. The list of dispute types was exhaustive and did not include, for instance, a claim for compensation for degrading conditions of detention. In cases involving such claims, the Court was not satisfied that the Russian legal aid system offered applicants sufficient protection of their rights. If a detainee could not afford the costs of professional legal representation, he had the option of appointing a relative, friend or acquaintance to represent him. In such situations the domestic courts had to ascertain, firstly, that the detainee had sufficient time to find and instruct a person willing to represent him and, secondly, that the detainee’s chances of having a fair hearing were not prejudiced on account of non-professional representation.

Lastly, whenever domestic courts opted for procedural arrangements aimed at compensating for the handicap which a detainee’s absence from the courtroom created, they were expected to verify whether the chosen solution would respect the absent party’s right to present his case effectively before the court and would not place him at a substantial disadvantage vis-à-vis his opponent. It would then fall to the European Court to judge whether the safeguards put in place to ensure that the detainee could participate fully in the proceedings were sufficient and whether the proceedings as a whole were fair in terms of Article 6.

As regards the instant cases, the domestic courts had failed to properly assess the nature of the civil claims brought by the applicants with a view to deciding whether their presence was indispensable and had focused instead on deficiencies in the domestic law. They had also failed to consider appropriate procedural arrangements to enable the applicants to be heard. They had therefore deprived the applicants of the opportunity to present their cases effectively and failed to meet their obligation to ensure respect for the principle of a fair trial.

Conclusion: violation (unanimously).

Article 41: awards in respect of non-pecuniary damage ranging from EUR 1,000 to EUR 1,500; claims in respect of pecuniary damage dismissed.

© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.

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