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RYAKIB BIRYUKOV v. RUSSIA - 14810/02 [2008] ECHR 47 (17 January 2008)
URL: http://www.bailii.org/eu/cases/ECHR/2008/47.html
Cite as:
[2008] ECHR 47
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FIRST
SECTION
CASE OF
RYAKIB BIRYUKOV v. RUSSIA
(Application
no. 14810/02)
JUDGMENT
STRASBOURG
17 January
2008
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Ryakib Biryukov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis, President,
Nina
Vajić,
Anatoli Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Dean
Spielmann,
Sverre Erik Jebens, judges,
and Søren
Nielsen, Section Registrar,
Having
deliberated in private on 22 November and 11 December 2007,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
The
case originated in an application (no. 14810/02) 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 a Russian national, Mr Ryakib Ismailovich
Biryukov (“the applicant”), on 3 January 2002.
The
applicant was represented by Mr A. Chebotarenko, a lawyer
practising in Togliatti. The Russian Government (“the
Government”) were represented at the material time by
Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
The
applicant alleged that the requirement of the
public pronouncement of judgments guaranteed by Article 6 of the
Convention was violated in his civil case.
By
a decision of 24 November 2005 the Court declared the application
partly admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1977 and lives in Togliatti, Samara Region.
In
May 1999 the applicant was injured in a road accident. In particular,
his arm was broken. Immediately after the accident he was taken to
hospital, where he was given initial medical aid. Several days later
his arm was amputated.
In
October 1999 the applicant brought proceedings for damages against
the hospital before the Nikolaevskiy District Court of the Ulyanovsk
Region. He claimed that the hospital medical staff had failed to
provide him with appropriate medical care and that their malpractice
had led to the loss of his arm.
On
2 April 2001 the court examined the case in a public hearing at which
the applicant, his representative and the defendant were present. It
heard the parties and witnesses and examined other evidence.
At
the close of the hearing the court read out the following operative
part of the judgment:
“On 2 April 2001 the Nikolayevskiy District Court,
composed of ..., having examined in an open court session a civil
case which originated in an application by Biryukov Ryakib
Ismailovich against the Nikolaevskaya [hospital] for compensation for
damage to health, on the basis of Article 1064 of [the RF Civil Code]
and being governed by Articles 14, 50, 191, 194-197 of [the RSFSR
Code of Civil Procedure],
decided:
To reject the claims by Biryukov Ryakib Ismailovich
against the Nikolaevskaya Central District Hospital of the Ulyanovsk
Region for compensation for health damage.
An appeal or a protest against the judgment to the
Ulyanovsk Regional Court can be lodged with the Nikolayevskiy
District Court within 10 days.”
A
copy of the reasoned judgment was served on the applicant on 6 April
2001. It stated that, according to Article 1064 of the Civil Code,
harm inflicted on the person or property of an individual is to be
reimbursed in full by the person who inflicted the harm. After a
description of the evidence examined by the court, the judgment
contained the court's finding that there had been no malpractice on
the part of the hospital staff and no causal link between the
treatment and the amputation of the applicant's arm. For those
reasons the applicant's claims were rejected.
The
applicant appealed, inter alia, on the ground that the
district court had not read out the full text of the judgment at the
hearing.
On
3 July 2001 the Ulyanovsk Regional Court examined the case on appeal
at a public hearing. Having heard the parties, it dismissed the
applicant's appeal and upheld the judgment. It noted that by reading
out the operative provisions of the judgment at the hearing and
providing the applicant with a copy of the reasoned judgment within
the established time limit the district court had fully complied
with the Code of Civil Procedure, notably Article 203.
According
to the Government, the Regional Court read out the operative
provisions of its decision at the hearing in the applicant's presence
and later served a copy of its reasoned decision on the applicant.
II. RELEVANT DOMESTIC LAW
A. Judgments
Article
9 of the Code of Civil Procedure of 1964 (“CoCP”), in
force at the material time, provided:
“... Judgments shall always be pronounced
publicly.”
Article
203 of the Code read:
“Judgment shall be delivered immediately after the
examination of a case. In exceptional circumstances, in extremely
complex cases, the preparation of a reasoned judgment may be
postponed for not more than three days, providing that the operative
part of the judgment is pronounced at the same hearing in which the
examination of the case has ended. At the same time the court shall
announce when participants to the proceedings and representatives may
become acquainted with the reasoned judgment. The announced operative
part of the judgment shall be signed by all judges and included in
the case file.”
Under
Article 197 of the Code, judgments were to include an introductory
part (the time and place of the delivery of judgment, the name and
composition of the court in question, the registrar, parties, the
subject matter of the dispute, etc.), a descriptive part (the claims
and parties' submissions), reasons (the circumstances of a case as
established by the court, the evidence on which the court based its
conclusions, the reasons for which the court rejected one or another
piece of evidence, and the statutes by which the court was governed)
and an operative part (the court's conclusion whether to grant or
reject the suit, instructions as to how court costs should be divided
and explanations concerning an appeal against the judgment).
Under Article 213 of the Code, copies of judgments
were sent to parties and other participants in proceedings who were
not present at the court hearing. Those persons who were present and
participated in the examination of the case could receive copies of
judgments if they so requested (paragraph 18 of
Resolution no. 7 of the Plenary
Session of
the Supreme Court of the USSR of 9 July 1982 “On court
judgments”).
Under
Article 301 of the Code, the examination of a case on appeal begins
with a report by one of the judges, who gives an account of
circumstances of the case, the content of the first-instance court's
judgment, points of appeal and observations in reply, the content of
new materials submitted to the court and any other information
necessary for assessment of the judgment.
B. Access to a case file
By virtue of sections 30 and 31
of the federal Judicial System of the Russian Federation Act of 1996
and sections 1 and 6 of the federal law on the Courts
Administration Office at the Supreme Court of the Russian Federation
of 1998, the Courts Administration
Office at the Supreme Court provides administrative support for
district and regional courts. In particular, it organises their
clerical work, including archives. Thus, at the material time, the
clerical work in a district court was governed by the Courts
Administration Office's Instruction no. 8 of 29 January 1999.
Paragraph
181 of the Instruction set out an exhaustive list of persons who
could consult a case file in a court building. It was limited to the
parties to the proceedings, their representatives, other participants
in the proceedings, judges and officers of higher courts, public
prosecutors and officers of the Courts Administration Office.
Paragraph
184 of the Instruction set out an exhaustive list of persons who
could be given, at the discretion of a president of a court or a
judge, a copy of documents from a case file. It included the parties
to a civil case, an accused person, a convicted person, an acquitted
person and a victim in criminal proceedings, and their
representatives.
By
a final decision of 3 April 2003 the Supreme Court of the Russian
Federation refused to examine an appeal lodged by two individuals who
were seeking to have the Instruction declared void. It found that the
Instruction, as an instrument which concerned human rights, freedoms
and obligations, had not been registered at the federal Ministry of
Justice and officially published and could not therefore be
considered an instrument issued by a federal authority, the
lawfulness of which would fall within the jurisdiction of the Supreme
Court.
Instruction
no. 169 of the Courts Administration Office of 28 December 1999
(paragraphs 16.1 and 16.4) concerning regional courts and the new
Instruction no. 36 of the Courts Administration Office of 29 April
2003 (paragraphs 12.1 and 12.4) concerning district courts, which are
currently in force, contain provisions identical to those of
paragraphs 181 and 184 of the above Instruction no. 8.
The
new Instruction no. 36 concerning district courts and Instruction
no. 169 concerning regional courts were challenged in the
Supreme Court by a journalist, who argued that they violated the
principles of open and public administration of justice, in that they
restricted public access to court decisions and other court documents
in case files. In its decision of 2 November 2004 the Supreme
Court found that the Instructions complied fully with the Code of
Civil Procedure of 2002 and the Code of Criminal Procedure, which
vested a right to consult a case file and receive a copy of court
decisions and other documents only in the participants in the
proceedings. It noted that journalists could have access to court
documents to the extent and in the order prescribed by the relevant
legislation. The journalist argued that the existing order did not
ensure free access to court documents and that some court officers
prevented journalists from exercising their right of access to
information. The Court replied that in such instances the journalist
was free to complain by way of an appeal to a court. It dismissed the
application. On 13 January 2005 the decision was upheld by the
Cassation Section of the Supreme Court.
C. Other provisions
Under
the Mass Media Act of 27 December 1997 (sections 40 and 58),
restrictions on journalists' access to information are not allowed
and entail responsibility, save in cases concerning state secrets,
commercial secrets or other confidential information protected by
law.
Under
the Information, Computerisation and Protection of Information Act of
20 February 1995, in force at the material time, and Presidential
Decree no. 188 of 6 March 1997, information about the facts, events
and circumstances of an individual's life which makes it possible to
identify that individual is confidential. Under the Decree,
confidential information further includes information containing the
secrecy of the investigation and court proceedings, official,
professional (medical secrecy, information protected by lawyer-client
privilege, etc.), and commercial secrecy.
Article
1064 of the RF Civil Code provides:
Article 1064. General grounds giving rise to
liability for the infliction of harm
“1. Harm inflicted on the person or
property of an individual ... shall be reimbursed in full by the
person who inflicted the harm.
A law may oblige a person who is not a tortfeasor to
reimburse the harm.
A law or a contract may establish an obligation of a
tortfeasor to pay the victim compensation in addition to the
reimbursement of the harm.
2. The person who inflicted the harm shall be
liable for it unless he proves that the harm was inflicted through no
fault of his. A law may provide for the reimbursement of harm in the
absence of the tortfeasor's fault.
3. Harm caused by lawful actions shall be
subject to compensation in cases provided by law.
Reimbursement of harm may be refused if the harm was
caused at the request or with the consent of the victim, and the
torfeasor's actions do not violate the moral principles of society.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that the reasoned judgment in
his case had not been “pronounced publicly”, as required
by Article 6 § 1 of the Convention which, in so far as
relevant, provides:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
... by [a] ... tribunal.... Judgment shall be pronounced publicly but
the press and public may be excluded from all or part of the trial in
the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the
protection of the private life of the parties so require, or to the
extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice.”
The
Government disagreed. They submitted that the operative part of the
judgment of the Nikolaevskiy District Court of 2 April 2001 had been
pronounced publicly at the hearing in the applicant's presence. The
compilation of a reasoned judgment could be postponed for three days
under Article 203 of the Code of Civil Procedure then in force. A
copy of the reasoned judgment had been served on the applicant. The
operative part of the decision of the Ulyanovsk Regional Court had
been pronounced in the applicant's presence and a copy of the
reasoned decision had been served on him later.
A. The general principles
The
Court recalls that the public character of proceedings protects
litigants against the administration of justice in secret with no
public scrutiny; it is also one of the means whereby confidence in
the courts, superior and inferior, can be maintained. By rendering
the administration of justice visible, publicity contributes to the
achievement of the aim of Article 6 § 1, namely a fair
trial, the guarantee of which is one of the fundamental principles of
any democratic society, within the meaning of the Convention (see
Pretto and Others v. Italy, judgment of 8 December 1983,
Series A no. 71, p. 11, § 21, and Axen v. Germany,
judgment of 8 December 1983, Series A no. 72, p. 12, § 25).
The
Contracting States enjoy considerable freedom in the choice of the
appropriate means to ensure that their judicial systems comply with
the requirements of Article 6 (see Hadjianastassiou
v. Greece, judgment of 16 December 1992, Series A no. 252,
p. 16, § 33).
The
Court has held in respect of the requirement of the public
pronouncement of judgments that in each case the form of publicity
given to the “judgment” under the domestic law of the
respondent State must be assessed in the light of the special
features of the proceedings in question, having regard to their
entirety, and by reference to the object and purpose of Article 6 §
1 (see Pretto and Others, cited above, § 26; Axen,
cited above, § 31; and Sutter v. Switzerland,
judgment of 22 February 1984, Series A no. 74, p. 14, §
33).
The
former Commission declared inadmissible a complaint that a judgment
had not been pronounced publicly in a criminal case since only the
sentence was read out at a public hearing and the reasons were
subsequently filed in the registry. The Commission noted that it was
“standard practice in State parties to the Convention that the
reasons for a decision in a criminal case are often signed at a later
date and only the sentences are read out during the public hearing”.
It gave particular attention to the fact that the sentence, which was
read out at the public hearing, contained the offence with which the
applicants were charged, the finding of guilt, a decision on the
presence of aggravating circumstances and the penalty imposed on the
applicants. The Commission held that “the decision read out in
Court, despite its concise nature, was sufficiently explicit and
satisfied the requirements of Article 6 (1) of the Convention”
(see Crociani and Others v. Italy, nos. 8603/79 and 8729/79,
Commission decision of 18 December 1980, Decisions and Reports
22, p. 228).
The
Court has had on several occasions to assess situations in which the
decisions of superior courts, dismissing appeals on points of law,
were not pronounced in open court. In finding no violation of Article
6 § 1, the Court paid particular attention to the stage of the
proceedings and the role of the courts in question, which was
confined to the issues of law, and to their decisions, which made
lower courts' judgments final and changed nothing in respect of the
consequences for the applicants. Having such considerations in mind,
it found that the requirement of the public pronouncement of
judgments was satisfied where the full text of the decision deposited
in the court registry was available to everyone (see Pretto and
Others, cited above, § 26), or where the court held public
hearings and the lower court's judgment was pronounced in open court
(see Axen, cited above, § 32), or where anyone who
established an interest could obtain the full text of judgments of
the court, the most important judgments of which were subsequently
published in an official collection (see Sutter, cited above,
p. 14, § 34).
The
Court found no violation where a first-instance court held a public
hearing but did not deliver its judgment publicly and the appellate
court delivered its decision, which contained a summary of the
first-instance court's judgment and made that judgment final, in
public (see Lamanna v. Austria, no. 28923/95, §§
33 34, 10 July 2001).
The
requirement of the public pronouncement of judgments was held to be
contravened where the decisions of courts of both levels of
jurisdiction, before which a case concerning compensation for
detention was heard in private, were not delivered publicly and were
not otherwise accessible to the public (see Werner v. Austria,
judgment of 24 November 1997, Reports of Judgments and Decisions
1997-VII, §§ 56-60). Lastly, in a case in which dispensing
with a public hearing was found to be unjustified, the provision of
access to the case file to those who established a legal interest in
the case and the publication of decisions of special interest, mostly
of the appellate courts or the Supreme Court, was held not to suffice
in order to comply with the publicity requirement in question (see
Moser v. Austria, no. 12643/02, § 103, 21 September
2006).
Lastly,
the Court reiterates that “in a democratic society within the
meaning of the Convention, the right to a fair administration of
justice holds such a prominent place that a restrictive
interpretation of Article 6 (1) would not correspond to the aim and
the purpose of that provision” (see Delcourt v. Belgium,
judgment of 17 January 1970, Series A no. 11, p. 15, § 25).
B. Application in the present case
In
the present case the Nikolayevskiy District Court, acting as a
first instance court, examined the applicant's case on the
merits at a public hearing. At the close of the hearing it read out
the operative provisions of the judgment, by which the applicant's
claims were dismissed with a reference to Article 1064 of the Civil
Code (see paragraphs 9, 16 and 27 above). The reasoned judgment was
served on the applicant later (see paragraph 10 above).
The
Court's task in the present case therefore differs from its previous
cases. It has to decide whether the reading out of only the operative
part of the judgment in open court in the applicant's civil case
complied with Article 6 § 1. In doing so the Court has to
examine, as the above mentioned principles established in the
Convention case-law on the subject suggest, whether the public had
access to the reasoned judgment in the applicant's case by means
other than its reading out in open court, and, if so, to consider the
modalities of the form of publicity given to the reasoned judgment to
ensure its public scrutiny.
The
Court observes at the outset that the applicant's complaint about the
failure of the Nikolayevskiy District Court to read out the reasoned
judgment at the hearing was examined on appeal by the Ulyanovsk
Regional Court. The appeal court dismissed the complaint, holding
that the District Court had fully complied with Article 203 of the
Code of Civil Procedure, which allowed courts in exceptionally
complex cases to pronounce only the operative provisions of a
judgment at the hearing and to compile a reasoned judgment later. The
public pronouncement of the appeal court's judgment was also limited
to its operative part (see paragraph 13 above).
The
Government did not suggest that publicity of the judgment had been
ensured by means other than having it read out loud. Nor does the
Court's assessment of the domestic legal situation at the material
time identify any such possibility.
Thus,
Article 203 of the Code of Civil Procedure, to which the appeal court
in the domestic proceedings and the Government in the present
proceedings referred, mentioned only the participants to the
proceedings and their representatives as persons entitled to become
acquainted with a reasoned judgment to be prepared after the public
pronouncement of its operative part (see paragraph 15 above). An
obligation to serve a copy of a judgment was also limited to the
parties and other participants to the proceedings (see paragraph 17
above). As regards depositing court judgments with a court registry,
the relevant regulations restricted public access to the texts of
judgments. Such access was normally given only to the parties and
other participants to the proceedings (see paragraphs 19-24 above).
It
follows that the reasons on which the District Court based its
judgment on the merits of the case (see paragraph 10 above), except
for the reference to Article 1064 of the Civil Code, were
inaccessible to the public.
Article
1064 of the Civil Code established general grounds giving rise to
liability for the infliction of harm (see paragraph 27 above). The
operative part of the judgment contained no indication as to the
applicable principle derived from Article 1064, and was thus not
informative to members of the public who did not have the relevant
legal knowledge.
The
Court considers that the object pursued by Article 6 § 1 in this
context – namely, to ensure scrutiny of the judiciary by the
public with a view to safeguarding the right to a fair trial –
was not achieved in the present case, in which the reasons which
would make it possible to understand why the applicant's claims had
been rejected were inaccessible to the public.
The
Court finds that there has been a violation of Article 6 § 1 in
that the State failed to comply with the requirement of the publicity
of judgments.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
The
applicant claimed 679,894.64 Russian roubles (RUB) in lost wages as a
result of his invalidity and RUB 60,000 as the cost of an artificial
arm. He also claimed 150,000 United States dollars in respect of
non pecuniary damage caused by the physical and mental suffering
resulting from his invalidity and unemployment.
The
Government submitted that there was no causal link between the
applicant's claims and the alleged violation of the Convention and
that the finding of a violation would therefore constitute sufficient
just satisfaction.
The
Court notes that there is no causal link between the violation of the
Convention complained of and the alleged pecuniary damage. As to
possible non-pecuniary damage, the Court considers it sufficiently
compensated by the finding of a breach of Article 6 § 1.
B. Costs and expenses
As
the applicant did not claim costs and expenses, the Court makes no
award under this head.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 17 January 2008, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren
Nielsen Christos Rozakis
Registrar President
