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GRYAZNOV v. RUSSIA - 19673/03 [2012] ECHR 996 (12 June 2012)
URL: http://www.bailii.org/eu/cases/ECHR/2012/996.html
Cite as:
[2012] ECHR 996
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FIRST
SECTION
CASE OF GRYAZNOV v. RUSSIA
(Application
no. 19673/03)
JUDGMENT
STRASBOURG
12
June 2012
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 Gryaznov v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Nina Vajić,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Khanlar Hajiyev,
Mirjana Lazarova
Trajkovska,
Julia Laffranque,
Linos-Alexandre
Sicilianos, judges,
and Søren Nielsen,
Section Registrar,
Having
deliberated in private on 22 May 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 19673/03) 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
Gryaznov (“the applicant”), on 10 April 2003.
The
applicant, who had been granted legal aid, was represented by Mr A.
Koss, a lawyer practising in Kaliningrad. The Russian Government
(“the Government”) were represented by Ms
V. Milinchuk, former Representative of the
Russian Federation at the European Court of Human Rights.
The
applicant complained in particular of a violation of his right of
access to court and of a violation of the principle of equality of
arms.
On
16 March 2007 the application was communicated to the Government. It
was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1967 and lives in Kaliningrad.
In
2000 the applicant was convicted of extortion and aggravated murder
and sentenced to seventeen years’ imprisonment. On 12 October
2000 he was transferred to a correctional colony in the Kaliningrad
Region to serve his sentence.
A. Claim for compensation for the alleged ill-treatment
On
1 July 2002 the applicant sued the investigator for compensation,
claiming that he had been ill-treated to make him confess. In his
statement of claim he alleged that on 17 March 1999 the investigator
had beaten him and injured his lips, forehead and ears. The
investigator had also threatened to kill him. After he had confessed
to the murder, he had been placed in a detention facility. He had
applied for medical assistance, which had been refused. On 23 March
1999 he had been questioned and the questioning had been videotaped.
In his statement of claim he asked the court to watch the videotape,
in which it could be seen that his lips were cut. He also asked the
court to hear his counsel, Ms V., who had seen marks of beatings on
his face. He finally indicated that he wanted to give oral
submissions and requested to be brought to the hearing.
On
25 September 2002 the Leningradskiy District Court of Kaliningrad
rejected the applicant’s requests to be brought to the hearing
and to summon Ms V. It stated that domestic law did not give a
detainee the right to be brought to a hearing in a civil case.
Referring to legal professional privilege, it held that Ms V. could
not be questioned about the information that had become known to her
in the performance of her duties as counsel. It further requested the
prosecutor’s office of the Kaliningrad Region to make available
the video record of the applicant’s questioning.
On
29 October 2002 the prosecutor’s office of the Kaliningrad
Region informed the court that the record of the questioning had been
erased as unnecessary.
On
an unspecified date the prosecutor’s office of the Kaliningrad
Region and the local department of the Ministry of Finance made
written submissions in support of the respondent.
On
14 November 2002 the applicant repeated his request to attend the
hearing. On 20 November 2002 the Leningradskiy District Court
rejected his request, giving the same reasons as before. It added
that the applicant was entitled to appoint a representative.
On
10 December 2002 the Leningradskiy District Court heard the
investigator, who denied beating the applicant. The applicant was not
brought to the hearing.
On the same day the Leningradskiy District Court gave
its judgment. It rejected the applicant’s claim for
compensation as unsubstantiated.
On 16 December 2002 the applicant received the
decision of 20 November 2002 and a notification stating that the
hearing before the Leningradskiy District Court was scheduled for 10
December 2002. On the same day the applicant complained to the
District Court about the belated notification. He also submitted that
he did not have a representative and that his personal attendance was
important because his claim was based on his personal experience. He
asked that a new hearing be scheduled and that he be brought to that
hearing.
On
26 December 2002 the applicant received a copy of the judgment of 10
December 2002. In his appeal submissions he complained, in
particular, that he had not been brought to the hearing, and about
the court’s refusal to summon Ms V. He further complained that,
despite his many requests, he had had no opportunity to study the
materials submitted by the respondent, or to comment on them.
On
29 January 2003 the applicant received the transcript of the hearing
of 10 December 2002 and copies of written submissions by the
prosecutor’s office of the Kaliningrad Region and the local
department of the Ministry of Finance.
On
4 March 2003 the applicant received the remaining materials from the
case file.
On
12 March 2003 the Kaliningrad Regional Court upheld the judgment on
appeal. The applicant was not brought to the appeal hearing.
B. Claim for compensation for the allegedly unlawful
transfer to prison
On
an unspecified date the administration of the applicant’s
correctional colony applied to a court, asking it to order the
applicant’s transfer to prison for three years.
On
10 April 2002 the Bagrationovskiy District Court of the Kaliningrad
Region granted the request. It held that the applicant had often
disrupted the colony regime or infringed colony regulations, and had
frequently been placed in a punishment or solitary cell. It concluded
from this that the applicant was of an unruly character and was a bad
influence on the other inmates.
On
11 April 2002 the applicant was transferred to prison.
On
10 September 2002 the Kaliningrad Regional Court quashed the decision
on appeal as having no basis in domestic law.
On
8 October 2002 the applicant was transported back to the colony.
On
27 January 2003 the applicant sued the judge who had ordered his
transfer to prison and the Kaliningrad Regional Department of the
Ministry of Finance for compensation. He claimed that the judge had
unlawfully ordered his transfer to prison and that her unlawful
decision had caused him mental suffering for which he should be
compensated by the Ministry of Finance.
On 9 April 2003 the Kaliningrad Regional Court
declared the claim inadmissible in the final instance. It held that
Article 1070 of the Civil Code, which provided for compensation for
damage caused by unlawful judicial decisions, contained an exhaustive
list of cases in which such compensation could be paid. The
applicant’s situation did not fall within the cases specified.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Civil hearings
Before
1 February 2003 the civil procedure was governed by
the RSFSR Code of Civil Procedure of 11 June 1964 (“the
old CCP”). On 1 February 2003 the Code of Civil Procedure
of the Russian Federation (“the CCP”) entered into force.
1. Attendance at hearings
Individuals
may appear before the court in person or act through a representative
(Article 43 § 1 of the old CCP and 48 § 1 of the CCP). A
court may appoint an advocate to represent a defendant whose place of
residence is not known (Article 50 of the CCP). The Advocates Act
(Law no. 63-FZ of 31 May 2002) provides that free legal
assistance may be provided to indigent plaintiffs in civil disputes
concerning alimony or pension payments or claims for damage to health
(section 26 § 1).
Parties to the case must be notified of the time and
place of court hearings (Article 144 of the old CCP and Article 155
of the CCP). Summons are to be served on the parties and their
representatives in such a way that they have enough time to appear at
the hearing and prepare their case (Article 106 § 2 of the old
CCP and Article 113 § 3 of the CCP). If a party to the case
fails to appear and there is no evidence that the party has been duly
summoned, the hearing must be adjourned (Article 157 § 1 of the
old CCP and Article 167 § 2 of the CCP).
A court may hold a session outside the court-house if,
for instance, it is necessary to examine evidence which cannot be
brought to the court-house (Articles 66 and 179 of the old CCP and
Articles 58 and 184 of the CCP).
The
Penitentiary Code provides that convicted persons may be transferred
from a correctional colony to an investigative unit if their
participation is required as witnesses, victims or suspects in
connection with certain investigative measures (Article 77.1). The
Code does not mention any possibility for a convicted person to take
part in civil proceedings, whether as a plaintiff or a defendant.
On several occasions the Constitutional Court has
examined complaints by convicted persons whose requests for leave to
appear in civil proceedings have been refused by courts. It has
consistently declared those complaints inadmissible, finding that the
contested provisions of the Code of Civil Procedure and the
Penitentiary Code do not, as such, restrict the convicted person’s
access to court. It has emphasised nonetheless that the convicted
person should be able to make submissions to the civil court, either
through a representative or in any other way provided by law. If
necessary, the hearing may be held at the location where the
convicted person is serving his sentence, or the court hearing the
case may instruct the court with territorial jurisdiction over the
correctional colony to obtain the applicant’s submissions or to
take any other procedural steps (decisions 478-O of 16 October 2003,
335-O of 14 October 2004, and 94-O of 21 February 2008).
2. Submission and examination of evidence
Parties
to civil proceedings are entitled to study the case file and make
copies of documents, submit evidence, and ask questions of the other
party and the witnesses (Article 30 of the old CCP and Article 35 of
the CCP).
Parties
must submit evidence in support of their submissions. If they are
unable to obtain a certain piece of evidence, the court may, at their
request, order that the person, organisation or State body in
possession of that piece of evidence make it available to the court
(Articles 50, 64 and 69 of the old CCP and Article 57 of the CCP).
Each
party must send the other party a copy of its submissions and
supporting evidence (Article 149 of the CCP). All evidence must be
examined by the court at the hearing in the presence of the parties.
The parties must be provided with copies (Articles 175 and 178 of the
old CCP, Articles 180-183 of the CCP).
Parties
may ask the court to examine witnesses. They must explain to the
court which relevant facts that witness may confirm. The court then
decides whether that witness should be summoned to testify (Articles
61 § 3 and 142 § 1 (6) of the old CCP and Articles 69 §
2 and 150 § 1 (7) of the CCP). Counsel in criminal, civil or
administrative proceedings may not be questioned about the
circumstances that have become known to them as a result of the
performance of their duties (Article 61 § 2 (1) of the old CCP
and Article 69 § 3 (1) of the CCP).
B. State liability for damage caused in the process of
the administration of justice
The Civil Code provides that damage inflicted on the
person or property of an individual shall be reimbursed in full by
the person who inflicted the damage (Article 1064 § 1).
Damage caused through unlawful conviction, unlawful
prosecution, unlawful placement in custody or order not to leave the
place of residence, unlawful administrative arrest or correctional
work, shall be compensated by the federal or regional treasury,
irrespective of any fault by the judges or law-enforcement officials
(Article 1070 § 1 of the Civil Code). The federal or regional
treasury shall also be liable for damage sustained by an individual
as part of the administration of justice, provided that the judge’s
guilt has been established in a final criminal conviction
(Article 1070 § 2).
By a ruling of 25 January 2001, the Constitutional
Court provided an interpretation of Article 1070 § 2 of the
Civil Code. It held that a judge’s criminal conviction was a
necessary element of a claim for damages on account of an unlawful
judicial decision issued by that judge in the context of civil
proceedings. It reasoned as follows:
“3...This special precondition for State liability
for damage caused as part of the administration of justice is
justified by the criteria for the activities of the judiciary,
established by the Constitution of the Russian Federation and
detailed in the legal provisions on [civil] procedure (including
adversarial proceedings, wide margin of appreciation of the judges,
and so on), and by the existence of a special procedure for review of
judicial decisions. Review of judicial decisions, that is assessment
of their lawfulness and justification, must be carried out through
special procedures established by law: appeal, cassation and
supervisory review proceedings. Review of a judicial decision in
separate tort proceedings would have amounted to an additional review
of its lawfulness and justification...
This is unacceptable ... because it would have led to a
situation where a party to judicial proceedings which considers that
it has been a victim of unlawful actions by a judge would have
recourse not only to appeal proceedings, but also to a tort action,
and the judges would have had to prove each time absence of fault on
their part. This would have undermined the existing system of review
of judicial decisions by higher courts, which is intrinsic to the
judiciary and is established by law.
4. Administration of justice is a special
type of State power. When applying a general legal rule to the
circumstances of a given case, a judge provides an interpretation of
the rule, takes a decision within the scope of his (at times wide)
margin of appreciation provided by the law and, often, assesses the
circumstances without the benefit of sufficient information
(sometimes concealed from him)...
Article 1070 § 2 not only excludes a presumption of
fault on the [judge’s] part, but also requires the
establishment of the judge’s guilt in a criminal judgment as an
additional condition of State liability. Thus, Article 1070 § 2
links State liability to a criminal act by a judge, which is
premeditated (pronouncement of a deliberately unlawful conviction,
judgment or another decision, an offence under Article 305 of the
Criminal Code of the Russian Federation) or negligent (improper
exercise of his powers by a judge as a result of a negligent or
careless attitude to his duties, which results in a substantial
breach of citizens’ rights or legitimate interests, an offence
under Article 293 of the Criminal Code of the Russian Federation).
It follows from Article 1070 § 2 of the Civil Code,
taken together with its Article 1069 and the above-mentioned and
other provisions of the Criminal Code on the basis of which a judge
may be held criminally liable, that the State is liable for damage in
all cases where it has been caused by a criminal act committed by a
judge as part of judicial proceedings.
The specific nature of the disputed provision which
provided for an exception to the general rules governing compensation
for damage warrants a conclusion that the term “administration
of justice” does not cover judicial proceedings in their
entirety, but only extends to judicial acts touching upon the merits
of a case...”
The Constitutional Court further held that other
judicial acts, mainly those of a procedural nature, fell outside the
scope of the notion of “administration of justice”. State
liability for damage caused by such procedural acts or failures to
act, such as a breach of the reasonable length of court proceedings,
could arise even in the absence of a final criminal conviction of a
judge, if the fault of the judge has been established in civil
proceedings. An individual should be able to obtain compensation for
any damage incurred through a violation by a court of his or her
right to a fair trial within the meaning of Article 6 of the
Convention. The Constitutional Court held that Parliament should
legislate on the grounds and procedure for compensation by the State
for damage caused by unlawful acts or failures to act on the part of
a court or a judge in such cases, and should determine territorial
and subject-matter jurisdiction over such claims.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF AN ALLEGED VIOLATION OF THE PRINCIPLE OF
EQUALITY OF ARMS IN A CIVIL CASE
The
applicant complained that the courts had refused to secure his
attendance at the first-instance and appeal hearings in the
proceedings concerning damages for the alleged ill-treatment. In
addition, the applicant complained that he had not been served with
copies of submissions and documents presented by the defendant to the
Leningradskiy District Court until after the first-instance hearing
and could not therefore comment on them. He finally complained that
the District Court had refused to call Ms V. to the witness
stand. He relied on Article 6 § 1, which provides, in so far as
relevant, as follows:
“In the determination of his civil rights and
obligations ... everyone is entitled to a fair and public ... hearing
... by [a] ... tribunal ...”
A. Admissibility
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Submissions by the parties
The
Government submitted that the applicant had not advanced any
convincing arguments showing that his personal attendance at the
hearings had been necessary. He could have participated in the
hearings by being represented there by counsel. His request to be
brought to the hearings had apparently been motivated by his wish to
escape for a time from the severe correctional regime he was under.
The
applicant maintained his claims. He submitted that had not been
present at the hearing of 10 December 2002 and had been therefore
unable to make submissions or to comment on the submissions of the
other party. The District Court had moreover refused to summon his
counsel Ms V., who could have confirmed that he had had marks of
beatings on his face. Given that he had been denied medical
assistance and that the video recording of his questioning had been
erased, Ms V.’s testimony would have been the only opportunity
for him to prove that he had been ill-treated.
2. The Court’s assessment
(a) Absence from the hearings
The
applicant sought leave to appear before the civil court examining his
claim of ill-treatment. The domestic courts refused him leave to
appear, relying on the absence of any legal norm requiring his
presence and on his right to appoint a representative. Thus, both the
first-instance and appeal hearings were held in his absence.
Article 6 of the Convention does not guarantee a right
to personal presence before a civil court, but rather a more general
right to present one’s case effectively before the court and to
enjoy equality of arms with the opposing side. Article 6 § 1
leaves to the State a free choice of the means to be used in
guaranteeing litigants these rights (see Steel and Morris v. the
United Kingdom, no. 68416/01, §§ 59-60, ECHR
2005-II). Thus, representation may be an appropriate solution in
cases where a party cannot appear in person before a civil court.
Given the obvious difficulties involved in transporting convicted
persons from one location to another, the Court can in principle
accept that in cases where the claim is not based on the plaintiff’s
personal experiences, representation of the detainee by an advocate
would not be in breach of the principle of equality of arms (see
Khuzhin and Others v. Russia, no. 13470/02, § 105, 23
October 2008).
The Court observes that it has previously found a
violation of the right to a “public and fair hearing” in
a number of cases where Russian courts, after having refused leave to
appear to imprisoned applicants wishing to make oral submissions on
their civil claim on the ground that the domestic law did not make
provision for convicted persons to be brought from correctional
colonies to the place where their civil claim was being heard, failed
to consider other legal means of securing their effective
participation in the proceedings (see Khuzhin and Others,
cited above, §§ 53 et seq., and Mokhov v. Russia,
no. 28245/04, §§ 41 et seq., 4 March 2010).
It
has also found a violation of Article 6 in cases where a Russian
court has refused leave to appear to an imprisoned applicant who had
wished to make oral submissions on his claim that he had been
ill-treated by the police (see Kovalev v. Russia,
no. 78145/01, § 37, 10 May 2007) or that he had
been detained in appalling conditions (see Sokur v. Russia,
no. 23243/03, § 30 et seq., 15 October 2009; Shilbergs
v. Russia, no. 20075/03, § 111, 17 December 2009;
and Artyomov v. Russia, no. 14146/02, § 205, 27 May
2010). The Court found that, irrespective of a representative’s
presence, the applicant’s personal attendance was also
necessary. Given that his claim had been largely based on his
personal experience, his submissions would have been “an
important part of the plaintiff’s presentation of the case and
virtually the only way to ensure adversarial proceedings”.
In the present case, it is doubtful that the applicant had a
practical opportunity to appoint a representative. It appears that he
did not learn that he had been refused leave to attend the hearing
until after the hearing had taken place (see paragraph above). The
applicant was obviously unable to decide on a further course of
action for the defence of his rights until such time as the decision
refusing him leave to appear was communicated to him (see, for
similar reasoning, Khuzhin and Others, cited above, § 107).
In
any event, the Court is not convinced that the representative’s
appearance before the court could have secured the effective, proper
and satisfactory presentation of the applicant’s case. The
applicant’s claim for compensation for non-pecuniary damage
resulting from his ill-treatment was, to a major extent, based on his
personal experience. The Court considers that his testimony
describing the circumstances of the alleged ill-treatment, of which
only the applicant himself had first-hand knowledge, would have
constituted an indispensable part of his presentation of the case
(see Kovalev, cited above, § 37). Only the applicant
could, by testifying in person, substantiate his claims and answer
the judges’ questions, if any.
Nor
is the Court persuaded by the domestic courts’ reference to the
fact that the domestic law did not make provision for convicted
persons to be brought from correctional colonies to the place where
their civil claim was being heard. The Court is mindful of another
possibility which was open to the domestic courts as a way of
securing the applicant’s participation in the proceedings. They
could have held a session by way of a video link or in the
applicant’s correctional colony, in so far as it was possible
under the rules on court jurisdiction (see paragraphs 29 and 31 above
and, for the relevant principles, Riepan v. Austria,
no. 35115/97, §§ 27-42, ECHR 2000-XII, and
Marcello Viola v. Italy, no. 45106/04, § 49 et seq.,
ECHR 2006-XI (extracts)).The Court finds it inexplicable that the
domestic courts did not consider these options (see, for similar
reasoning, Sokur, cited above, § 36, and Shilbergs,
cited above, § 109).
In
these circumstances, the Court finds that the principle of equality
of arms was breached, owing to the domestic courts’ refusal to
secure the applicant’s attendance at the hearing.
(b) Failure to serve documents on the
applicant
The
applicant’s situation was further aggravated by the fact that
he was not given access to the respondent’s and third parties’
observations requesting that the claims be dismissed and the evidence
adduced by them until after the first-instance hearing. He was
thereby deprived of an opportunity to comment on the observations and
to question the authenticity, relevance and lawfulness of the
evidence. The applicant was thus placed at a substantial disadvantage
vis-à-vis the opposing party. The fact that after the
first instance hearing he eventually received copies of the
respondent’s and third parties’ observations and the
supporting evidence did not remedy that disadvantage. Indeed, by that
time he had already lodged his appeal submissions and therefore could
no longer comment on the observations in writing. Nor could he do it
orally during the appeal hearing which was held just a few days later
because, as noted above, he had not been brought to that hearing.
The
Court reiterates that the principle of adversarial proceedings and
equality of arms, which is one of the elements of the broader concept
of a fair hearing, requires that each party be given a reasonable
opportunity to have knowledge of and comment on the observations made
or evidence adduced by the other party and to present its case under
conditions that do not place it at a substantial disadvantage
vis-à-vis its opponent (see Krčmář
and Others v. the Czech Republic, no. 35376/97, § 39,
3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27
October 1993, § 33, Series A no. 274).
The
Court notes 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, for example, Ziegler v. Switzerland, no.
33499/96, §§ 33-40, 21 February 2002; Steck-Risch
and Others v. Liechtenstein, no. 63151/00, §§
51-59, 19 May 2005; Bartenbach v. Austria, no. 39120/03, §§
32-34, 20 March 2008; Schaller-Bossert v. Switzerland,
no. 41718/05, §§ 39-43, 28 October 2010; and
Hrdalo v. Croatia, no. 23272/07, §§
34-40, 27 September 2011).
Having examined all the material submitted to it, the Court
considers that the Government have not put forward any fact or
argument capable of persuading it to reach a different conclusion in
the present case.
(c) Refusal to call a witness
Finally,
the Court observes that the applicant’s request to have a
witness questioned was rejected on the ground that Ms V., who had
been the applicant’s counsel at his trial, was bound by
lawyer-client confidentiality.
The
Court reiterates that while Article 6 of the Convention guarantees
the right to a fair hearing, it does not lay down any rules on the
admissibility of evidence or the way it should be assessed, which are
therefore primarily matters for regulation by national law and the
national courts (see Schenk v. Switzerland, judgment of 12
July 1988, Series A no. 140, p. 29, §§ 45-46, and
Garcia Ruiz v. Spain [GC] no. 30544/96, ECHR 1999-I, §
28). Similarly, it is in the first place for the national
authorities, in particular the courts, to interpret domestic law, and
the Court will not substitute its own interpretation for theirs in
the absence of arbitrariness. That being said, the Court’s task
remains to ascertain whether the proceedings in their entirety,
including the way in which evidence and procedural decisions were
taken, were fair (see Tamminen v. Finland, no. 40847/98,
§ 38, 15 June 2004).
Article 6 of the Convention does not explicitly
guarantee the right to have witnesses called or other evidence
admitted by a court in civil proceedings. Nevertheless, any
restriction imposed on the right of a party to civil proceedings to
call witnesses and to adduce other evidence in support of his case
must be consistent with the requirements of a fair trial within the
meaning of paragraph 1 of that Article, including the principle of
equality of arms. Equality of arms implies that each party must be
afforded a reasonable opportunity to present his case - including his
evidence - under conditions that do not place him at a substantial
disadvantage vis-à-vis his opponent (see Wierzbicki
v. Poland, no. 24541/94, § 39, 18 June 2002).
In
the instant case, it was incumbent upon the applicant to prove that
he had been subjected to ill-treatment. He relied on two pieces of
evidence: a video recording of his questioning showing that he had
injuries on his face and body, and testimony by Ms V., who could
confirm that she had seen injuries on him. Given that the video
recording had been destroyed by the respondent, Ms V.’s
testimony was the applicant’s only evidence other than his own
submissions.
The
applicant was however denied the opportunity to have Ms V. called,
because the domestic courts considered that she was bound by
lawyer-client privilege. The Court notes in this connection that the
rule of lawyer-client privilege serves the important purpose of
assuring confidentiality between counsel and client and thereby
encouraging clients to make full and frank
disclosures to their counsel, who are then better able to provide
legal advice and effective representation. The privilege serves the
interests of the client and therefore may be claimed or waived by the
client only.
60. The
applicant in the present case wanted Ms V. to testify about the
injuries she had seen on his face and body rather than to disclose
any information that she had received from him during their
confidential counsel-client communications. It is therefore
difficult to see why she should be prevented from testifying about
circumstances that were manifestly not covered by lawyer-client
privilege. In any event, by requesting that she be questioned in
court about the injuries, the applicant explicitly waived the
privilege, and it was not for the courts to impose it against his
will.
The
refusal to hear Ms V., the only witness capable of supporting the
applicant’s allegations of ill-treatment, deprived him of any
opportunity to prove his case, and inevitably led to the finding that
his claims were unsubstantiated. The Court finds that that refusal
may be regarded in the above circumstances as disclosing unfairness
not compatible with the requirements of the Convention (see, for
comparison, Tamminen, cited above, §§ 38-42,
and Dombo Beheer B.V., cited above, §§ 31- 35).
(d) Conclusion
Given
that the applicant was refused leave to appear at the first-instance
and appeal hearings, that he was not given a reasonable opportunity
to comment on the respondent’s and third parties’
submissions and evidence in support adduced by them, and that the
domestic courts refused to hear a crucial witness in support of his
case, the applicant was placed at a substantial disadvantage
vis-a-vis the opposing party, and deprived of an opportunity
to present his case effectively before the court.
There
has therefore been a violation of Article 6 § 1
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION ON ACCOUNT OF DENIAL OF ACCESS TO COURT
The
applicant complained under Article 6 § 1 of the Convention that
he had been denied access to court, because the domestic courts had
refused to examine his claim for compensation for the damage caused
by an unlawful judicial decision. The relevant parts of Article 6 §
1 have been cited above.
A. Admissibility
The
Government submitted that Article 6 was not applicable to the
proceedings brought by the applicant against the judge. The applicant
did not have any right to compensation recognised under domestic law.
Therefore, the proceedings in question did not concern the
determination of his civil rights or obligations.
The
Court reiterates, in that connection, that Article 6 § 1 extends
to “contestations” (disputes) over “civil
rights” which can be said, at least on arguable grounds, to be
recognised under domestic law, irrespective of whether they are also
protected under the Convention (see, as a recent authority, Enea
v. Italy [GC], no. 74912/01, § 103, ECHR 2009 ...).
However, whether a person has an actionable domestic claim so as to
engage Article 6 § 1 may depend not only on the substantive
content of the relevant civil right, as defined under national law,
but also on the existence of procedural bars to or limits on the
possibilities of bringing potential claims to court. In the latter
kind of case, Article 6 § 1 may be applicable (see A. v. the
United Kingdom, no. 35373/97, § 63, ECHR 2002 X).
The Court considers that in the present case the distinction between
the elements that relate to the existence in domestic law of a right
to compensation for damage caused by unlawful judicial decisions, and
the elements which act as a procedural bar to the determination by a
court of claims which derive from allegedly unlawful judicial
decisions, is difficult to discern. These issues relate, at least in
part, to the merits of the applicant’s complaint under Article
6 § 1 of the Convention. The Court therefore decides to join the
question of applicability of Article 6 to the merits.
The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
The
Government submitted that Article 1070 of the Civil Code (see
paragraph 37 above) exhaustively defined cases in which an action for
compensation may be brought against a judge. The applicant’s
action clearly did not belong among those cases and had therefore
been declared inadmissible.
The
applicant maintained his claims.
The
Court reiterates that Article 6 § 1 secures to
everyone the right to have a claim relating to his civil rights and
obligations brought before a court or tribunal. In this way, that
provision embodies the “right to court”, of which the
right of access to court, that is, the right to institute proceedings
before a court, constitutes one aspect; however, it is an aspect that
makes it in fact possible to benefit from the further guarantees laid
down in paragraph 1 of Article 6 (see Sergey Smirnov v.
Russia, no. 14085/04, § 25, 22 December 2009, and
Teltronic-CATV v. Poland, no. 48140/99, § 45,
10 January 2006).
The
right to court is not absolute and may be subject to limitations. The
limitations applied should not bar or restrict the access afforded to
the individual in such a way or to such an extent that the very
essence of that right is impaired. Furthermore, the Court underlines
that a limitation will not be compatible with Article 6 § 1
unless it pursues a legitimate aim and there is a reasonable
relationship of proportionality between the means employed and the
legitimate aim sought to be achieved (see Sergey Smirnov,
cited above, §§ 26 and 27; Jedamski and Jedamska v.
Poland, no. 73547/01, § 58, 26 July 2005; and Kreuz
v. Poland, no. 28249/95, §§ 54 and 55, ECHR
2001 VI).
The
Court further reiterates that it is not its task to take the place of
domestic courts. It is primarily for the national authorities,
notably the courts, to resolve problems of interpretation of domestic
legislation. The Court’s role is confined to ascertaining
whether the effects of such an interpretation are compatible with the
Convention (see Société Anonyme Sotiris and Nikos
Koutras Attee v. Greece, no. 39442/98, § 17, ECHR 2000 XII).
Turning
to the present case, the Court observes that after it had been
submitted to a court the applicant’s case was not examined on
the merits, because his situation did not fall within the cases
specified in Article 1070 of the Civil Code (see paragraph 25
above). Article 1070 creates an exception to the general rule that
all damage inflicted on a person must be compensated by the
tortfeasor, contained in Article 1064 of the same Code, by
establishing that damage caused as part of the administration of
justice could be compensated by the State in two categories of cases
only (see paragraphs 36 and 37 above). Firstly, Article 1070
contains an exhaustive list of situations where damage caused by
unlawful judicial decisions is compensated for, irrespective of any
fault on the part of the judge. Secondly, it provides that damage may
also be recoverable in cases where the judge’s fault has been
established in criminal proceedings. The Constitutional Court defined
a third category of cases where damage incurred through a violation
by a court of the right to a fair trial by acts of a procedural
nature could be compensated for even in the absence of a final
criminal conviction of a judge, if the fault of the judge has been
established in civil proceedings (see paragraph 39 above, see also,
in respect of the third category of cases, Chernichkin v. Russia,
no. 39874/03, §§ 28-30, 16 September 2010). In all
other cases, such as in the applicant’s case, no liability
could be imposed on the judges or the State.
The
Court notes that it has already found that certain privileges and
immunities from civil liability are compatible with Article 6 §
1. Just as the right of access to court is an inherent part of the
fair trial guarantee in that Article, so some restrictions on access
must likewise be regarded as inherent, an example being those
limitations generally accepted by signatory States as part of the
doctrine of parliamentary immunity (see A. v. the United Kingdom,
cited above, § 83) or generally recognised rules of public
international law on State immunity or on immunity of international
organisations (see, on State immunity, Al-Adsani v. the United
Kingdom [GC], no. 35763/97, § 56, ECHR 2001 XI, and
Fogarty v. the United Kingdom [GC], no. 37112/97, § 36,
ECHR 2001 XI (extracts), see also, on immunity of international
organisation, Waite and Kennedy v. Germany [GC], no. 26083/94,
§§ 50-74, ECHR 1999 I). At the same time, the Court
has also found that it would not be consistent with the rule of law
in a democratic society, or with the basic principle underlying
Article 6 § 1 – namely that civil claims must be capable
of being submitted to a judge for adjudication – if a State
could, without restraint or control by the Convention enforcement
bodies, remove from the jurisdiction of the courts a whole range of
civil claims, or confer immunities from civil liability on large
groups or categories of persons (see Fayed v. the United Kingdom,
21 September 1994, § 65, Series A no. 294 B, and
Al-Adsani v. the United Kingdom [GC], no. 35763/97, §
47, ECHR 2001-XI).
The
Court further observes that immunity given to a judge from civil
claims in damages has been earlier found to be a permissible
restriction on the right of access to court, in the case
of Ernst and Others v. Belgium. The Court took into account
that judicial immunity was a long established legal practice existing
in some form in many member States. It pursued the legitimate aim of
proper administration of justice. The Court however added that a
material factor in determining whether such restriction was
proportionate to the legitimate aim was whether the applicants had
available to them reasonable alternative means to protect their
rights effectively. Although they could not sue a judge for damages,
they were able to lodge a civil action against the State on the basis
of the same facts. The essence of their right of access to court was
not therefore impaired (see Ernst and Others v. Belgium,
no. 33400/96, §§ 47-57, 15 July 2003)
By
contrast to Ernst and Others v. Belgium, the applicant in the
present case could lodge a civil claim for damages neither against
the judge nor against the State. It remains to be ascertained whether
this restriction was compatible with Article 6 § 1.
The
Court takes note of the Constitutional Court’s arguments
justifying circumscribed liability of the judges and the State for
damage caused by allegedly unlawful judicial decisions, and
consequent immunity from civil actions (see paragraph 38 above). It
accepts that such a restriction aims at preventing
losing parties, who normally have an opportunity to take their
complaints to an appeal court or to such other forum as may be
prescribed by procedural rules, from attacking
a final court decision in separate civil proceedings. It also permits
judges to do their work in complete independence and free from fear
that the exercise of their discretion and judgment may make them
liable for damages. Finally, it permits judges to devote themselves
entirely to their judicial duties without being constantly disrupted
by civil actions lodged by losing parties. It therefore pursues a
legitimate aim of proper administration of justice.
It
remains to be determined whether there was a reasonable relationship
of proportionality between the means employed and the legitimate
objective pursued by the contested limitation.
The
Court notes that the immunity from civil claims for damage caused as
part of the administration of justice is
not of a blanket or non-rebutted nature. In particular, a civil
action can be lodged in most serious cases where damage has been
caused through unlawful conviction, unlawful prosecution,
unlawful placement in custody or order not to leave the place of
residence, unlawful administrative arrest or correctional work,
irrespective of any fault on the part of judges or law-enforcement
officials. A civil action for damages can also
be lodged in cases where judicial acts have been done with malicious
intent or corruptly and the judge’s guilt has been established
in a final criminal conviction. The limitation in question
cannot be therefore regarded as an arbitrary removal of the courts’
jurisdiction to determine a whole range of civil claims.
The
Court reiterates in this connection that it is a principle of
Convention case-law that Article 6 does not in itself guarantee any
particular content for civil rights and obligations in national law,
and that Convention enforcement bodies may not create by way of
interpretation of Article 6 § 1 a substantive civil right which
has no legal basis in the State concerned (see Z and Others v. the
United Kingdom [GC], no. 29392/95, § 98, ECHR 2001 V,
and A. v. the United Kingdom, cited above, § 63).
Domestic courts at two levels of jurisdiction found that Russian law
did not impose any liability on the judge or on the State in the
circumstances of the applicant’s case, and declared his claims
inadmissible. However, if as a matter of law there was no basis for
the claim, the hearing of evidence would have been an expensive and
time-consuming process which would not have provided the applicant
with any remedy at its conclusion. Such a hearing would have indeed
served no purpose in a situation where, as in the present case, no
liability for the alleged damage existed under domestic law. It is
not for this Court to find that such liability should have been
imposed on the judge or on the State in the applicant’s case,
since this would effectively involve substituting its own views for
those of the national courts as to the proper interpretation and
content of domestic law. There is therefore no reason to consider the
inadmissibility decision based on the absence of a sustainable cause
of action as offending the principle of access to court (see, mutatis
mutandis, Z and Others, cited above, §§ 97 and
101).
Finally,
the Court notes that the limited liability of the judges and the
State for damage caused in the framework of judicial proceedings and
the consequent immunity from civil actions may, in cases where there
is an arguable claim under the substantive Convention provisions,
give rise to an issue under the Convention, but in the Court’s
view it is an issue under Article 13, not Article 6 § 1 (see Z
and Others, cited above, §§ 102 and 103). In the
present case the applicant did not raise any arguable claim under the
substantive Convention provisions in connection with his unlawful
transfer from a correctional colony to a prison, nor did he lodge a
complaint under Article 13.
In
view of the above, the Court finds that there has been no violation
of Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the Court has examined the other complaints submitted by the
applicant, and, having regard to all the material in its possession
and in so far as these complaints fall within the Court’s
competence, it 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 manifestly ill-founded, pursuant to Article 35 §§
3 (a) and 4 of the Convention.
IV. 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 compensation for non-pecuniary damage. The amount
of the claim is however unclear. The printed text indicates the
amount of 6,000 euros (EUR), written in figures. The handwritten
clarification in brackets indicates the amount of EUR 16,000, written
in words.
The
Government pointed out the discrepancies between the printed and
handwritten texts. They submitted that the applicant’s claim
was excessive.
The
Court considers that the applicant must have suffered distress and
frustration resulting from unfair civil proceedings in respect of his
claim for compensation for the alleged ill-treatment. Making its
assessment on an equitable basis, the Court awards the applicant EUR
4,000 for non-pecuniary damage, plus any tax that may be chargeable
on the above amount.
B. Costs and expenses
The
applicant did not claim costs and expenses. Accordingly, there is no
call to make an award under this head.
C. Default interest
The
Court considers it appropriate that the default interest rate should
be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning the alleged
violation of the principle of equality of arms in the proceedings for
compensation for the alleged ill-treatment and the alleged violation
of his right of access to court in the proceedings for compensation
for damage caused by the allegedly unlawful judicial decisions
admissible and the remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention in respect of a breach of the principle
of equality of arms in the proceedings for compensation for the
alleged ill-treatment;
Holds that there has been no violation of
Article 6 § 1 of the Convention as regards access to court in
the proceedings for compensation for the damage caused by the
allegedly unlawful judicial decisions;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 4,000 (four
thousand euros) in respect of non-pecuniary damage, to be converted
into Russian roubles at the rate applicable on the date of
settlement, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 12 June 2012, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
