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SHANDROV v. RUSSIA - 15093/05 [2011] ECHR 467 (15 March 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/467.html
Cite as:
[2011] ECHR 467
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FIRST
SECTION
CASE OF SHANDROV v. RUSSIA
(Application
no. 15093/05)
JUDGMENT
STRASBOURG
15
March 2011
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 Shandrov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Christos Rozakis,
Peer
Lorenzen,
Elisabeth Steiner,
Khanlar
Hajiyev,
George Nicolaou, judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 22 February 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 15093/05) 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 Dmitriy Sergeyevich Shandrov (“the applicant”),
on 31 March 2005.
The
Russian Government (“the Government”) were
represented by Mr G. Matyushkin, Representative of the
Russian Federation at the European Court of Human Rights.
The
applicant alleged, in particular, that he had not been duly apprised
of the appeal hearing before the Stavropol Regional Court, and that
the appeal had been considered in his absence.
On
11 September 2009 the President of the First Section
decided to give notice of the application to the Government. It was
also decided to examine the merits of the application at the
same time as its admissibility (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1976 and lives in Raduzhnyy, Moscow Region.
In
the morning of 31 July 2001 Mr E., armed with a machine gun
and explosives, took passengers in a bus hostage in the Stavropol
Region. The applicant was amongst the hostages. In the evening of
that day police forces stormed the bus, killed Mr E. and liberated
the hostages. However, during the storming Mr E. detonated a
hand grenade and the applicant was injured. He was admitted to a
local hospital. The next day, after having received medical
assistance, he was discharged. During the criminal investigation into
the hostage taking the applicant was granted the status of a victim
of the crime.
On
5 May 2003 the applicant sued the Government of the
Stavropol Region seeking compensation for non-pecuniary damage caused
by the terrorist attack. The applicant relied on Section 17 of
the Suppression of Terrorism Act, according to which regional
authorities should compensate damage caused by a terrorist
attack committed on their territory.
On
15 December 2003 the Kolomenskiy District Court of the Moscow Region
granted the applicant's claims in part. The Government of the
Stavropol Region appealed. They did not deny that the applicant had
suffered as a result of a terrorist attack. However, in their view
the law did not provide for strict liability on the part of the
regional authorities for non-pecuniary damage caused by a third
party, which in the applicant's case had resulted from the actions of
Mr E.
On
16 February 2004 the Moscow Regional Court quashed the judgment and
remitted the case to the first-instance court for fresh examination.
At
a preliminary hearing on 28 April 2004 the Kolomenskiy District Court
of the Moscow Region decided to transfer the case to the Leninskiy
District Court of Stavropol pursuant to the rules of jurisdiction.
On
9 August 2004 the Leninskiy District Court of Stavropol rejected
the applicant's claim in his absence. The applicant appealed.
In
November 2004 the applicant learned that on 27 October 2004
the Stavropol Regional Court had held a hearing in his absence
and rejected his appeal. The applicant received a copy of the
decision of 27 October 2004 in December 2004.
The
applicant made several unsuccessful attempts to institute supervisory
review proceedings in his case. On 27 November 2006 the
Presidium of the Stavropol Regional Court finally accepted the
applicant's request for supervisory review.
On
18 December 2006 the Presidium of the Stavropol Regional Court
quashed the judgment of 9 August 2004 and the decision of 27 October
2004 and remitted the case to the first-instance court for fresh
examination.
On
28 May 2007 the Leninskiy District Court of Stavropol held a hearing
in the applicant's absence. Having examined the evidence presented by
the parties the court rejected the applicant's claims. The
relevant extracts from the District Court's judgment read as follows:
“The applicant did not appear at the hearing. He
was duly notified about the date and the place of the hearing.
He asked the court to examine the case in his absence on the basis of
the materials submitted [by him]. ...
The court has established that [the applicant] has never
received any compensation from the regional authority or any other
authority. This was confirmed by [the applicant]. He does not raise
any claim with respect to pecuniary damage. He seeks to recover
non-pecuniary damage. ...
From the law cited above it follows that a person who
did not cause the damage can be required to compensate the damage
only when it is clearly indicated in the law. ...
In accordance with Sections 17 and 18 of the Suppression
of Terrorism Act, damage caused by a terrorist act should be
compensated for by the authorities of the federal constituency where
the attack took place. However, there is no indication in the law
about possible compensation for non-pecuniary damage by regional
authorities. ...
Moreover, there is no legal basis in the budgets of the
regional authorities for the allocation of funds to compensation for
non-pecuniary damage. ...
It was not the Stavropol Region authorities' fault that
[the applicant] sustained damage. From the case materials it follows
that the damage was caused to [the applicant] by Mr E., who had
taken people hostage in the bus ... on 31 July 2001. ...
The authorities of the Stavropol Region fulfilled their
obligations: they provided assistance for the release of the hostages
and identified victims. The claimant was transported to the Central
District Hospital of Mineralniye Vody where he received the necessary
medical care. ...
Section 17 of the Suppression of Terrorism Act does not
provide for an obligation on the part of regional authorities to
compensate non-pecuniary damage. Thus, there is no legal basis for
compensation of non-pecuniary damage by the Stavropol Regional
authority. ....
The court accepts the claimant's allegation that he
sustained non-pecuniary damage. However, he failed to submit any
evidence that such damage had been caused by fault on the part of the
respondent. ...
In these circumstances, on the basis of established
jurisprudence the court finds that there are no legal grounds for
granting [the applicant's] claims. ...”
The
applicant appealed against the judgment, alleging an incorrect
interpretation of the domestic law by the first-instance court.
It appears that the applicant did not ask the court of appeal to
re-examine the evidence in the case-file or to admit new evidence.
On
22 August 2007 the applicant received a summons for the appeal
hearing, which was scheduled at the Stavropol Regional Court on that
very date. As a result he was unable to attend it. The appeal court
held a hearing in the absence of both parties to the dispute.
Following
the hearing in the absence of both parties the appeal court rejected
the applicant's appeal and upheld the judgment of 28 May 2007.
The relevant parts of the appeal court's judgment read as follows:
“In his appeal brief, the claimant seeks to have
the judgement quashed due to the incorrect interpretation of the
domestic law by the first-instance court. Having examined the case
file and the appeal brief, the appeal court finds that the
first-instance court's judgment was correct.
In the interests of legality, the court of appeal will
review the judgment of the first-instance court in full, as provided
for by [the relevant provisions of the CCP].
The first-instance court rejected [the applicant's]
claims because the Suppression of Terrorism Act of 25 July 1998 did
not provide for compensation for non-pecuniary damage. Section 18 of
the new Counter-Terrorist Act, which entered into force from
1 January 2007 and replaced the Suppression of Terrorism Act,
provides that non-pecuniary damage caused by a terrorist attack shall
be compensated for by the individuals who committed that attack.
The (first-instance) court's conclusions are based on a
complete and objective assessment of the evidence and on an
application of the relevant material law ...
The court correctly found that the terrorist attack
caused [the applicant] non-pecuniary damage ... However, [the
applicant] did not prove that the damage was caused by the defendant.
...”
The
Regional Court further analysed relevant legislation and the case-law
of the Supreme Court and of the Constitutional Court of the Russian
Federation on non-pecuniary damage. The Regional Court noted that
strict liability on the part of the State can be relied upon only in
the cases specifically described by law. Although Sections 17 and 18
of the Suppression of Terrorism Act provided that damage caused by a
terrorist attack should be compensated for by the authorities, the
Act did not explicitly mention non-pecuniary damage. Therefore,
non-pecuniary damage was not covered by that Act. The applicant
suffered damage as a result of the terrorist attack itself, and not
because of the actions of the authorities. The authorities, on the
contrary, had done everything possible to free the hostages and to
provide medical assistance to them. In such circumstances, the court
held that non-pecuniary damage should be compensated for by the
wrongdoer (i.e. the terrorist), in accordance with the general
provisions of tort law, and not by the State.
On
19 August 2008 the Stavropol Regional Court rejected the applicant's
request to reopen the case by way of supervisory review due to
non-compliance with the relevant time-limits.
II. RELEVANT DOMESTIC LAW
The
Code of Civil Procedure of the Russian Federation (“the CCP”,
as in force from 1 February 2003) reads as follows:
Section 113. Court summonses and notifications
“1. Parties ... are to be summonsed to
court by a letter sent via registered mail with an acknowledgment of
receipt, by a court summons with an acknowledgment of receipt, by
telegram, by phone or fax, or by any other means of communication
which guarantees recording of the fact that the court summonses or
notifications were received by the parties.
2. A court summons is one of the forms of
court notification. Parties are notified by court summonses of the
date and place of a court hearing or of particular procedural actions
...
3. A summons or another form of notification
is to be served on the parties in such a way [as to ensure] that they
have enough time to prepare their case and to appear at the hearing.
4. A court notification, addressed to a
party, is to be sent to the address indicated by that party or his
representative. If a party does not reside at the indicated address,
the court summons may be sent to his place of work ...”
Section 116. Receipt of a court summons
“1. A court summons ... to a person is
to be served on him against his signature on a counterfoil of the
summons, which is to be returned to the court ...”
Section 343. Actions of the first-instance court upon
the receipt of the statement of appeal
“1. Upon the receipt of the statement
of appeal ... the judge shall:
(1) send to the parties copies of the
statement of appeal and the enclosed written documents not later than
the day after their receipt;
(2) notify the parties of the time and place
of the appeal hearing...”
Section 354. Consequences of the parties' and their
representatives' failure to attend an [appeal] hearing
“1. If a party to the case fails to
appear and there is no evidence that the party was duly summonsed,
the hearing is to be adjourned ...”
The
Suppression of Terrorism Act (Федеральный
закон от 25 июля
1998 г. № 130-ФЗ «О
борьбе с терроризмом»)
provides as follows:
Section 17. Compensation of damage caused by a
terrorist act.
“1. Damage caused by a terrorist act
should be compensated by the authorities of the federal constituency
where the attack took place...
Section 18. Social rehabilitation of victims of a
terrorist attack
1. Social rehabilitation of victims of a
terrorist attack, the aim of which is to normalize their lives, shall
involve legal, psychological, medical and professional assistance...
2. Social rehabilitation of victims of a
terrorist attack should be paid for by the federal budget and the
budget of the regional authority...”
The
new Counter-Terrorist Act (Федеральный
закон
от 6 марта
2006 г. №
35-ФЗ «О
противодействии
терроризму»)
provides as follows:
Section 18. Compensation of damage caused by a
terrorist act.
“1. Non-pecuniary damage caused by a
terrorist attack shall be compensated for by the individuals who
committed that attack...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
The
applicant complained that he had not been afforded an opportunity to
attend the appeal hearing of 22 August 2007 in his civil case in
breach of Article 6 § 1 of the Convention, which
reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair and public hearing
... by [a] ... tribunal ...”
The
Government claimed that the applicant had been notified of the appeal
hearing in good time. He had been notified of that hearing by a
letter sent by the Leninskiy District Court of Stavropol on 10 August
2007. The Government submitted a copy of that letter and a copy
of the excerpt of the outgoing correspondence log of the Leninskiy
District Court of Stavropol. The Government also noted that the
State was not required to provide a perfectly functioning postal
system (see Zagorodnikov v. Russia, no. 66941/01,
§ 31, 7 June 2007, and, mutatis mutandis,
Foley v. the United Kingdom (dec.),
no. 39197/98, 11 September 2001).
The
applicant maintained that the domestic courts had failed in
their duty to inform him of the appeal hearing. He further claimed
that the summons should have been served on him against his signature
or in such a manner as could have allowed the domestic courts to
conclude that he had, in fact, been summoned. According to the
postmark on the envelope, the summons had reached his local post
office on 22 August 2007, the day of the hearing. He also noted that
the distance between his place of residence and the place of
the hearing was over 1,600 km.
A. Admissibility
The
Court considers, in the light of the parties' submissions, that
the complaint raises serious issues of fact and law under the
Convention, the determination of which requires an examination
of the merits. The Court concludes therefore that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. No other ground for declaring it inadmissible has
been established. It must therefore be declared admissible.
B. Merits
The
Court reiterates that the entitlement to a “public hearing”
in Article 6 § 1 necessarily implies a right to
an “oral hearing” (Fredin v. Sweden
(no. 2), 23 February 1994, §§ 21-22,
Series A no. 283-A). The right to a public hearing
would be devoid of substance if a party to the case were not apprised
of the hearing in such a way so as to have an opportunity to attend
it, should he or she decide to exercise the right to appear
established in domestic law (see Yakovlev v. Russia,
no. 72701/01, §§ 21, 15 March 2005).
The
Court observes that at the material time the Russian rules of civil
procedure provided for oral hearings before appellate courts.
However, the parties' attendance was not mandatory and, if a
party did not appear at the hearing without a valid reason after
it had been duly notified thereof, the court could proceed with
the examination of the appeal. An analysis of the provisions
of Russian law on the service of court summonses suggests that,
whichever specific form notification of the parties is chosen, the
domestic courts should be in possession of evidence confirming the
receipt of such notification by the addressee, otherwise the hearing
is to be adjourned. It follows that the Government should have
been in possession of such evidence. The Government provided a
copy of the notification letter dispatched on 10 August 2007.
However, the Government did not present any evidence, such as an
acknowledgement of receipt or an envelope bearing postmarks or such
like showing that it had reached the applicant in good time. The
postmark on the envelope submitted by the applicant showed that
it had reached him on 22 August 2007, on the very date of the
appeal hearing.
In
this connection, the Court recalls that Article 6 cannot be
construed as conferring on litigants an automatic right to obtain a
specific form of service of court documents, such as by registered
mail (see Bogonos v. Russia (dec.), no. 68798/01,
5 February 2004). Nevertheless, the Court considers that in
the interests of the administration of justice a litigant should
be summoned to a court hearing in such a way as not only to have
knowledge of the date and the place of the hearing, but also to
have enough time to prepare his case and to attend the court hearing.
A formal dispatch of a notification letter without any confidence
that it will reach the applicant in good time cannot be considered by
the Court as proper notification. Moreover, there is nothing in the
text of the appeal judgment to suggest that the appeal court
examined the question of whether the applicant had been duly
summoned, and, if he had not, whether the examination of the
appeal should have been adjourned. Furthermore, the Court also
does not lose sight of the fact that the summons to the hearing of
22 August 2007 was sent to the applicant on 10 August 2007,
i.e. twelve days in advance. The applicant resided 1,600 km
away from the court. In such circumstances, even if the applicant had
received the letter earlier, it is questionable whether he would have
had time to prepare for the case, attend the hearing in person or
find a lawyer. In these circumstances, the Court accepts the
applicant's allegation that the domestic courts failed to duly notify
him of the appeal hearing, contrary to the provisions of the
Russian CCP.
The
Court points out that it has frequently found violations of
Article 6 § 1 of the Convention in cases raising
issues similar to the one in the present case (see, among other
authorities, Yakovlev v. Russia, cited above, §§ 19
et seq.; Groshev v. Russia, no. 69889/01, §§ 27
et seq., 20 October 2005; Mokrushina v. Russia,
no. 23377/02, §§ 20 et seq., 5 October 2006;
and Prokopenko v. Russia, no. 8630/03, §§ 17
et seq., 3 May 2007).
Having
examined the materials in its possession, the Court notes that
the Government have not put forward any fact or argument capable
of persuading it to reach a different conclusion in the present case.
The Court has established that owing to the belated notification the
applicant was deprived of the opportunity to attend the appeal
hearing.
It
follows that there has been a violation of the applicant's right to a
fair hearing under Article 6 § 1 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The
applicant complained under Articles 6 § 1 and
13 of the Convention that the proceedings in his case
had been excessively long. He also complained of the unfairness of
the hearings of 9 August and 27 October 2004.
The applicant further complained of the unfairness of the
proceedings concerning the examination of his request for supervisory
review.
Having
regard to all the material in its possession and in so far as
the complaints fall within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols. It follows
that this part of the application must be rejected as being
manifestly ill-founded, pursuant to Article 35 §§ 3
and 4 of the Convention.
III. 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 50,000 euros in respect of non-pecuniary
damage. The Government submitted that the applicant's claims were
unsubstantiated. The Court accepts that the impossibility for the
applicant to appear in person before the second instance court might
have distressed the applicant. However, having regard to the
circumstances of the case the Court finds that the finding of a
violation constitutes in itself sufficient just satisfaction.
B. Costs and expenses
The
applicant did not submit a claim for costs and expenses. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the domestic
authorities' failure to apprise the applicant of the appeal hearing
of 22 August 2007 admissible, and the remainder of the
application inadmissible;
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 any 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 15 March 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina
Vajić
Registrar President
