CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 mars 2018

.s800EAC49 { font-size:12pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s598389FB { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:14pt } .sF5E1C6CF { font-family:Arial; font-weight:bold; text-decoration:underline; color:#ff0000 } .sE208486F { font-family:Arial; color:#ff0000 } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .s82B4DA5F { page-break-before:right; clear:both; mso-break-type:section-break } .sB9D5CABB { width:28.35pt; display:inline-block } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s79DE5897 { margin-top:18pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sDE1FCA9C { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s583D00FA { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s1B50D646 { width:185.6pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sFA0E4E80 { margin-top:18pt; margin-left:31.75pt; margin-bottom:12pt; text-indent:-17.85pt; page-break-inside:avoid; page-break-after:avoid } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sDD2975B { width:1.96pt; text-indent:0pt; display:inline-block } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s75A32C27 { border-collapse:collapse } .s3695F815 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .sEECE831 { font-family:Arial; font-weight:bold; color:#474747 } .sE8934522 { border:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s6B505E72 { margin:0pt; padding-left:0pt } .s6674DD39 { font-family:Arial; font-size:11pt; list-style-position:inside } .sEC906386 { width:3.83pt; font:7pt 'Times New Roman'; display:inline-block } .s43719078 { margin-top:0pt; margin-bottom:0pt; text-indent:36pt; font-size:11pt } .sF320D28F { page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-size:11pt; list-style-position:inside } .s906CA806 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .s6864627 { height:62.9pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }       THIRD SECTION               CASE OF IGRANOV AND OTHERS v. RUSSIA   (Applications nos. 42399/13 and 8 others – see appended list)                 JUDGMENT     STRASBOURG   20 March 2018     FINAL   10/09/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Igranov and Others v. Russia, The European Court of Human Rights (Third Section), sitting as a Chamber composed of:   Helena Jäderblom, President,   Luis López Guerra,   Helen Keller,   Dmitry Dedov,   Alena Poláčková,   Georgios A. Serghides,   Jolien Schukking, judges, and Stephen Phillips, Section Registrar, Having deliberated in private on 20 February 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in nine applications 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 nine Russian nationals (“the applicants”). The application numbers and the dates on which they were lodged with the Court, as well as the applicants’ full names and dates of birth, are listed in the Appendix. 2.     The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. 3.     The applicants complained, in particular, that they had been denied an opportunity to appear in person before the court in the civil proceedings to which they were parties. 4.     On 22 April 2016 the above complaint was communicated to the Government and the remainder was declared inadmissible pursuant to Rule   54 § 3 of the Rules of Court. The Court also informed the parties that it was considering the suitability of applying a pilot judgment procedure and requested the parties’ observations on the matter. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The facts of the cases, as submitted by the parties, may be summarised as follows. 6.     The applicants, who were detained at the material time in Russian penal facilities, were claimants in separate sets of civil proceedings. Most of the applicants were seeking compensation for various aspects of the conditions of their detention, for unlawful criminal prosecution, or for lack of adequate medical care. 7.     None of the applicants were able to attend the hearings at which their claims were examined. The domestic courts at both levels of jurisdiction refused to allow them to be present. In most of the cases the courts held that there was no domestic legal provision for bringing detainees to court and referred to Article 77.1 of the Code on the Execution of Sentences and the relevant provisions of the Code of Civil Procedure. They also noted that the applicants had had the opportunity to submit written pleadings and to retain counsel to represent them in court. 8.     The applicants’ claims were refused at two levels of jurisdiction. The dates of the final judgments are set out in the appended table. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Participation in civil proceedings 9.     For relevant rules of Russian civil procedure and the practice of Russian courts, see Yevdokimov and Others v. Russia , nos. 27236/05 and 10   others, §§ 9-15, 16 February 2016. B.     Re-examination of civil cases 10 .     The Code of Civil Procedure provides as follows: Article 392.     Grounds on which final judicial decisions may be re-examined (in the light of newly discovered or new circumstances) “1.     Final judicial decisions may be re-examined in the light of newly discovered or new circumstances. 2.     The grounds on which final judicial decisions can be re-examined are: ... 2)     new circumstances – the circumstances indicated in paragraph 4 of the present Article which have appeared after the adoption of a judicial decision and which are significant for the correct resolution of a case. ... 4.     The new circumstances are: ... 4)     a finding by the European Court of Human Rights, after examination of a case in which the final decision has been the subject of an application before it, of a violation of the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms.” 11.     Ruling no. 31 of 11 December 2012 by the Plenary Supreme Court on the “Application of provisions of the Code of Civil Procedure for considering applications for re-examination of final judicial decisions in the light of newly discovered or new circumstances” established that the list of grounds for re-examination of a judicial decision in the light of new circumstances, as set out in Article 392 § 4, was exhaustive and that a judicial decision may be re-examined only if the new circumstances were “of substantial importance for the correct examination of the case” (point 8). 12.     Ruling no. 21 of 27 June 2013 by the Plenary Supreme Court on the “Application of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and its Protocols by the courts of general jurisdiction” specified that a judicial act should be re-examined if the applicant had continued to suffer from the negative consequences of such an act and the Court had established a violation of the Convention or its Protocols of a procedural nature that put in question the outcome of the proceedings (point 17; for more details about the ruling, see Davydov v.   Russia , no.   18967/07, § 15, 30 October 2014). 13 .     By decision of 19 April 2017, the Presidium of the St Petersburg City Court rejected an application for the reopening of civil proceedings submitted by Ms Skorodumova, one of the applicants in the case of Melnikov and Others v. Russia (nos. 40869/06 and 8 others) whose applications had been struck out on 22 November 2016 by a decision of a Committee of the Third Section of the Court. The Presidium held that, in the absence of a Court judgment on the merits of the applicants’ complaints or a finding of a violation affecting the outcome of the civil proceedings to which Ms Skorodumova had been a party, the original judicial decision was not amenable to re-examination under Article   392 of the Code of Civil Procedure. 14 .     By an appeal decision of 4 October 2017, the Khabarovsk Regional Court quashed the first-instance court’s decision refusing an application for the reopening of civil proceedings submitted by Mr Resin, one of the applicants in the Yevdokimov and Others case (cited above) in which the Court had found a violation of Article 6 § 1 on account of the applicants’ absence from the civil proceedings. The Khabarovsk Regional Court pointed out that the procedural rights of parties to the proceedings could not be restricted in an arbitrary fashion and that Mr Resin’s exclusion had been incompatible with the position of the Constitutional Court. It ordered a reopening of the civil proceedings. By contrast, the appeal judgment by the Perm Regional Court of 31 May 2017 in case no. 33-5962 dismissed an application for the reopening of proceedings lodged by Mr Davydov, in respect of whom the Court found a similar violation (see Barkov and Others v. Russia , nos.   38054/05 and 8   others, 19 July 2016). The Perm Regional Court noted in particular that Mr Davydov had been a party to a dispute over a debt he had owed to another person, that the materials of the case had been destroyed, and that he had been awarded compensation by the Court for what had been an essentially procedural violation of his rights. THE LAW I.     JOINDER OF THE APPLICATIONS 15.     The Court notes that all the applicants complained that they had been unable to attend the hearings in the civil proceedings to which they were parties. Having regard to the similarity of the applicants’ grievances, the Court is of the view that, in the interest of the proper administration of justice, the applications should be joined in accordance with Rule 42 § 1 of the Rules of Court. II.     ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 16.     The applicants complained that their right to a fair hearing under Article   6 §   1 of the Convention had been breached on account of the domestic courts’ refusal of their requests to appear in court. The relevant part of Article   6   §   1 reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...” A.     The Government’s request that certain applications be struck out on the basis of a unilateral declaration 17.     With the exception of Mr Khvorostyanoy and Mr   Resin, whose complaints they considered inadmissible (see paragraph 28 below), the Government submitted unilateral declarations in respect of the other seven applicants. They acknowledged a violation of their right to a fair trial under Article 6 § 1 of the Convention, offered to pay them a sum of 1,500   euros   (EUR) each, covering any pecuniary and non-pecuniary damage as well as costs and expenses, and invited the Court to strike their cases out of its list in accordance with Article 37 § 1 (c) of the Convention. They undertook to effect the payment within three months of the date of notification of the Court’s decision and, in the event of failure to pay that sum within the three ‑ month period, to pay simple interest on that amount until the date of settlement at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points. 18.     The applicants concerned were invited to indicate whether or not they accepted the terms of the declaration and, in the event of refusal, to state their reasons for refusing it. 19.     Mr Kuznetsov, Mr Siverkov and Mr Sulimov did not reply. Mr   Igranov, Mr Zhundo, Mr Malygin and Mr Lupanskiy rejected the terms of the Government’s declaration. They stated that the proper redress for the violation of their right to a fair trial would be a full review of their civil cases, which would only be possible on the basis of a judgment of the Court. 20.     The Court reiterates that the applicant’s consent to the terms of the declaration is not required in order to strike out an application under Article   37 §   1   (c) of the Convention, for such a decision may be taken even if the applicant wishes the examination of the case to be continued. The elements on the basis of which the Court determines whether or not the declaration offers a sufficient basis for finding that respect for human rights does not require it to continue examination of the case are well-established in its case-law. They include in particular the nature of the complaints made, the acknowledgment of a violation of the Convention and the undertaking to pay adequate compensation for such violation, the existence of clear and extensive case-law in similar cases, and the manner in which the Government intend to provide redress to the applicant and whether this makes it possible to eliminate the effects of an alleged violation (see Tahsin   Acar v.   Turkey (preliminary objections) [GC], no. 26307/95, § 75, ECHR   2003 ‑ VI, and for a recent restatement of applicable principles, Jeronovičs v.   Latvia [GC], no.   44898/10, §§ 64-71, ECHR 2016). 21.     The instant case concerns the allegedly unfair nature of civil proceedings in which Russian courts failed to secure the attendance of imprisoned applicants wishing to take part in hearings on their claims. The Court has found a violation of Article 6 in a large number of similar Russian cases and has recently consolidated its approach in the leading judgment of Yevdokimov and Others (cited above, §§ 30-48). It follows that the central issue of this case is based on clear and extensive case-law of the Court. The Court is also satisfied that the Government acknowledged a violation of Article 6 of the Convention and undertook to pay compensation in an amount which was not unreasonable in relation to the Court’s awards in similar cases (ibid., § 58). 22.     On the issue of adequate redress, the Court considers that a distinction must be drawn between the situation of those applicants who did not react to the Government’s declaration and those who raised specific objections to it. The distinction hinges on the fact that the assessment of whether or not the proposed redress is adequate involves a degree of subjectivity relating to the applicant’s individual situation. The applicant’s position is therefore relevant and important, even if not decisive. By inviting applicants to submit their comments on the declaration, the Court provides them with an opportunity to alert it to any deficiencies in the proposed redress, such as a manifestly insufficient amount or an outstanding undertaking to re-examine the issue at domestic level. Just as with claims under Article   41 of the Convention, the Court normally looks only to the items actually claimed and will not of its own motion consider whether the applicant has been otherwise prejudiced (see Nagmetov v. Russia [GC], no.   35589/08, § 68, 30 March 2017). This approach is capable of preventing situations such as the one before the Court in the Jeronovičs case, in which the applicant initially rejected the declaration solely because of an insufficient amount of compensation, but later raised a complaint about the absence of a clause requiring the respondent State to reopen the criminal investigation (see Jeronovičs v.   Latvia (dec.), no. 547/02, § 47, 10 February 2009, and Jeronovičs [GC], cited above, §§   23 and 37). 23.     The applicants Mr Kuznetsov, Mr Siverkov and Mr Sulimov did not submit any comments on the Government’s declarations. They must therefore be presumed to have taken cognisance of their terms and to have no objections to them. Accordingly, the Court finds that payment of the specified amount constitutes adequate redress in the particular situation of these applicants. In the light of the above considerations, and in particular given the clear and extensive case-law on the issue, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the applications (Article 37 § 1 in fine ), and the applications lodged by Mr Kuznetsov, Mr   Siverkov and Mr Sulimov should be struck out of its list. Should the Government fail to comply with the terms of the declarations, the applications could be restored to the list in accordance with Article 37 § 2 of the Convention. 24.     By contrast, the other four applicants disagreed with the terms of the declaration on the grounds that a striking-out decision, unlike a Court judgment finding a violation, would bar their applications for re ‑ examination of their cases at national level. Accordingly, the Court needs to examine, first, whether a possibility to apply for the reopening of civil proceedings constitutes appropriate redress in the circumstances of the present case, and secondly, whether the right to apply for the reopening of proceedings was secured in domestic law in the event of the case being struck out by a Court decision on the basis of a unilateral declaration (see Aviakompaniya A.T.I., ZAT v.   Ukraine , no.   1006/07, § 34, 5   October 2017). 25.     On the first issue, the Court reiterates that when an applicant has suffered an infringement of his right to a fair hearing guaranteed by Article   6 of the Convention, he should, as far as possible, be put in the position in which he would have been, had the requirements of that provision not been disregarded. The re-examination of the case would be the most appropriate form of redress in the situation where the violation stemmed from procedural errors or shortcomings of such gravity that a serious doubt was cast on the outcome of the domestic proceedings complained of (see Moreira Ferreira v. Portugal (no. 2) [GC], no.   19867/12, §§ 48-49, ECHR 2017 (extracts), and Davydov , cited above, §   27, both citing the Committee of Ministers’ Recommendation No.   R(2000)2 to member States on the re-examination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights).   The complete exclusion of the applicant from the proceedings to which he was a party without putting in place any counterbalancing arrangements amounts to a breach of the principle of a fair trial and casts doubt on the outcome of the proceedings (see Yevdokimov   and Others , cited above, § 52). Russian courts appear to have endorsed that view by acceding to an applicant’s request for the reopening of proceedings following the Court’s finding of a violation (see the Khabarovsk Regional Court’s appeal judgment in paragraph 14 above). The Court finds no reason to hold otherwise and finds that, were a violation of the Convention alleged in the present case to be established, the appropriate form of redress would be to provide the applicants with a possibility to apply for the reopening of proceedings. It is however important to reiterate that making use of that possibility does not prejudge a domestic court’s decision on whether such a reopening should be granted on the facts of the specific case, having regard to the principle of res judicata or legal certainty in civil litigation, in particular where such litigation concerned private parties with their own legitimate interests to be protected (see Davydov , cited above, §   29; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 57-58, ECHR 2015, and Yevdokimov and Others , cited above, § 59, and compare with the Perm Regional Court’s judgment in paragraph 14 above). 26.     This conclusion takes the Court to the second question of whether a procedure by which such a reopening can be requested is available. The Court has previously refused unilateral declarations if the right to apply for reopening of domestic proceedings was not guaranteed in domestic law (see Hakimi v. Belgium , no. 665/08, § 29, 29 June 2010; Šarić and Others v.   Croatia , nos. 38767/07 et al., §§ 26-29, 18   October 2011; Rozhin v.   Russia , no. 50098/07, §§ 23-25, 6 December 2011; Vojtěchová v.   Slovakia , no.   59102/08, §§ 26-28, 25 September 2012; Davydov , cited above, §§ 23-32, and Aviakompaniya A.T.I., ZAT , cited above, §   37). The Court is satisfied that the finding of a violation in a Court judgment is considered under Russian law of civil procedure a “new circumstance” warranting examination of an application for the reopening of civil proceedings (see Article 392 § 4(4) of the Code of Civil Procedure cited in paragraph 10 above). It is also satisfied that there appears to be an established practice of considering applications for the reopening of proceedings after the Court has found a violation in cases similar to the present one (see the case-law cited in paragraph 14 above). The situation is different, however, with regard to unilateral declarations or a decision by the Court to strike a case out of its list. Russian law contains no provision allowing for the reopening of domestic proceedings further to a declaration by the Government or a Court decision striking the case out of its list (see Rozhin , cited above, § 23). The domestic courts accordingly consider applications for the reopening of proceedings inadmissible in the absence of a Court judgment on the merits or a finding of a violation (see paragraph 13 above). The Government conceded as much, indicating that unilateral declarations would not be an acceptable way of settling similar cases, as they do not furnish a legal basis for applying for the reopening of proceedings (see paragraph 44 below). In these circumstances, the Court finds that a unilateral declaration or a Court decision approving it does not provide the same assured access to a procedure allowing for examination of the question of the reopening of domestic proceedings as a Court judgment would (see Aviakompaniya A.T.I., ZAT , cited above, § 38). 27.     In view of the foregoing, the Court, without prejudging its decision on the admissibility and merits of the case, accepts the four applicants’ objection to the Government’s request and holds that respect for human rights as defined in the Convention and its Protocols requires the continued examination of the case. The Government’s request for the applications to be struck out of the list of cases under Article 37 of the Convention is rejected. B.     Admissibility 28 .     The Government submitted that the applications by Mr   Khvorostyanoy and Mr Resin had been lodged more than six months after the final judgments in their cases and were therefore belated. 29.     Mr Resin submitted in reply that he had first become aware of the appeal court’s decision on 20 October 2014 when he had received a copy of it from the prison authorities. He enclosed a copy of the document which he had signed for its receipt on that date. Mr Khvorostyanoy replied that he had handed over a completed application form to the prison authorities already on 25 June 2014. He produced a copy of the covering letter of that date. 30.     The Court reiterates its constant approach that it is in line with the object and purpose of Article 35 § 1 for the six-month time-limit to start running on the date of service of a copy of a final domestic decision delivered in the context of exhaustion of domestic remedies (see Sabri   Güneş v. Turkey [GC], no. 27396/06, § 53, 29 June 2012, with further references). Mr Resin was not present or represented at the appeal hearing before the Khabarovsk Regional Court and he first became aware of the existence of the appeal judgment and of its contents on 20 October 2014 when the prison authorities passed that judgment on to him. Having regard to the elements provided by Mr Resin, the Court establishes 20   October 2014 as the starting date of the six-month time-limit and finds that the application was not belated, having been submitted as it was on 17 April 2015. 31.     The situation of Mr Khvorostyanoy is rather unusual. It appears from the documents in the case file that he handed over a completed application form to the prison authorities for despatch on 25 June 2014, but for reasons he did not elaborate upon, he put the date of 26 June 2014 on its last page. Whether he post-dated it on purpose or in error, what is important is that the application was ready to be mailed on 25 June 2014. Any further delays were attributable to the prison authorities and were outside Mr   Khvorostyanoy’s control. In these circumstances, the Court takes 25   June 2014 as the date of introduction and holds that Mr Khvorostyanoy’s application concerning the proceedings that ended with the Kaliningrad Regional Court’s judgment of 25 December 2013 was not belated. 32.     The Court notes that the complaints by Mr   Igranov, Mr Zhundo, Mr   Khvorostyanoy, Mr Resin, Mr Malygin and Mr Lupanskiy are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. C.     Merits 33.     With the exception of Mr Khvorostyanoy and Mr   Resin, the Government acknowledged a violation of Article 6 § 1 of the Convention in respect of the other applicants on account of the domestic courts’ refusal of their requests for leave to appear in court. 34.     In the leading case of Yevdokimov and Others (cited above), the Court found a violation of Article 6 § 1 of the Convention in respect of a similar set of circumstances. The incarcerated applicants in that case were not afforded an opportunity to attend hearings in the civil proceedings to which they were parties. The Court held that the Russian courts had failed, firstly, to carry out a proper assessment of the nature of the civil claims with a view to deciding whether the applicants’ presence was necessary, and secondly, to consider appropriate procedural arrangements enabling the applicants to be heard, thereby depriving them of the opportunity to present their cases effectively (ibid., § 52). 35.     Likewise in the instant case, the courts did not verify whether the nature of the disputes called for the applicants’ personal testimony and whether their attendance was essential to ensure the overall fairness of the proceedings. The courts denied the applicants the opportunity to attend the hearings by reference to deficiencies in Russian law, irrespective of the subject matter of the proceedings. Even though the applicants’ involvement could have been ensured by making alternative procedural arrangements, for example, by using video-link facilities or conducting an off-site hearing, the courts did not consider those options. As a result, the applicants were deprived of an opportunity to present their cases effectively before the courts, in breach of the principle of a fair trial under Article 6 § 1 of the Convention. 36.     There has therefore been a violation of that provision. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 37.     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.” 38.     The Government submitted that Article 41 was to be applied in accordance with the established case-law. 39.     The Court has found above, as it did in similar cases previously, that the reopening of proceedings, if requested, would be the most appropriate form of redress for the established violation of the applicants’ right to a fair hearing guaranteed by Article 6 of the Convention (see Yevdokimov   and   Others , cited above, § 59, with further references). Pursuant to Article 392 §§ 2(2) and 4(4) of the Code of Civil Procedure, the above finding of a violation constitutes grounds for considering an application for the reopening of civil proceedings to which the applicants were parties (see paragraphs 10 and 14 above). 40.     The Court further considers that the applicants have suffered non ‑ pecuniary damage on account of their exclusion from the proceedings to which they were parties. That damage cannot be sufficiently compensated for by the finding of a violation or the possibility to apply for the reopening of proceedings, even though the latter possibility must be taken into account for determining the amount of the award. Making its assessment on an equitable basis, the Court awards EUR 1,500 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable, to each of the applicants Mr   Igranov, Mr Zhundo, Mr   Khvorostyanoy, Mr Resin, Mr   Malygin and Mr   Lupanskiy. 41.     Lastly, the Court rejects the claim for costs and expenses, finding that it has not been shown that the applicants have made, or are liable to make, any disbursements to their representatives before the Court. IV.     APPLICATION OF ARTICLE 46 OF THE CONVENTION 42.     The relevant parts of Article 46 of the Convention read: “1.     The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2.     The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. ... 5.     If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. ...” 43.     The Court reiterates that a judgment in which it finds a breach of the Convention imposes on the respondent State a legal obligation not just to pay those concerned the sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, general measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress as far as possible its effects. It is primarily for the State concerned to choose, subject to supervision by the Committee of Ministers, the means to be used in its domestic legal order to discharge its obligation under Article 46 of the Convention. However, with a view to helping the respondent State to fulfil that obligation, the Court may seek to indicate the type of general measures that might be taken in order to put an end to the situation it has found to exist (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no.   47848/08, §§ 158-59, ECHR 2014; Stanev v. Bulgaria [GC], no.   36760/06, §§ 254-55, ECHR 2012; Scoppola v. Italy (no. 2) [GC], no.   10249/03, §   148, 17   September 2009; and Broniowski v. Poland [GC], no. 31443/96, §   194, ECHR 2004 ‑ V). A.     The parties’ arguments as to the suitability of the pilot-judgment procedure 44 .     The Government submitted that recourse to the pilot-judgment procedure was not necessary. As regards general measures, they affirmed their commitment to abide by many of the Court’s judgments in which a similar violation of the Convention had been found. They emphasised that the recent Yevdokimov and Others judgment had set out in detail the possible practical arrangements for ensuring prisoners’ effective participation in civil proceedings. The Government had an obligation to execute that judgment under the supervision of the Committee of Ministers and a separate pilot judgment was not necessary for that purpose. On the issue of individual relief, the Government considered that they would be unable to settle follow-up cases in the same way as they had done in other pilot-judgment proceedings. Their capacity to settle similar cases was limited by reason of the fact that the Court did not consider paying a sum of money to be sufficient redress, while a re-hearing of a civil case was possible only on the basis of a Court judgment finding a violation. 45.     The applicants submitted that Russian law provided no framework governing the personal participation of prisoners in civil proceedings. The higher courts left the first-instance courts a discretionary power to decide whether the prisoner should be granted leave to appear. However, in practice, the first-instance courts refused such leave to 99.9 per cent of prisoners, whether plaintiffs or defendants, in order to avoid the cost of bringing them to hearings. Nor did they offer any alternative arrangements allowing prisoners to take part in civil proceedings. In the applicants’ view, the absence of clear statutory provisions relating to the participation of prisoners in civil proceedings amounted to a systemic problem, giving rise to repetitive violations of the right to a fair trial. B.     The Court’s assessment 46.     The Court reiterates that in the context of systemic or structural violations, the potential inflow of future cases is an important consideration in terms of preventing the accumulation of repetitive cases on the Court’s list, which hinders effective processing of other cases giving rise to violations, sometimes serious, of the rights it is responsible for safeguarding. A systemic or structural problem stems or results not just from an isolated incident or a particular turn of events in individual cases, but from defective legislation, when actions and omissions based thereon have given rise, or may give rise, to repetitive applications (see Gülmez v.   Turkey , no.   16330/02, § 60, 20   May 2008; Urbárska Obec Trenčianske Biskupice v. Slovakia , no. 74258/01, §   148, 27 November 2007; and Hutten ‑ Czapska v. Poland [GC], no.   35014/97, §§ 235-37, ECHR   2006 ‑ VIII). 47.     The Convention issue in the present case is an unjustified restriction on the applicants’ right to present their cases effectively before civil courts because of their position as remand or convicted prisoners. This issue is not new and has been the subject of well-established case-law. Since one of the first judgments finding a violation of Article 6 § 1 (see Kovalev v. Russia , no.   78145/01, §§ 30-38, 10 May 2007), the Court has highlighted the widespread nature of the problem in more than a hundred cases in which Russian courts had refused to secure the attendance of imprisoned applicants wishing to take part in hearings on their civil claims (see the cases listed in Yevdokimov and Others , cited above, § 32). Russia’s highest courts – the Constitutional Court and the Plenary Supreme Court – have directed their attention to the issue on several occasions, providing specific indications on how to secure the rights of incarcerated litigants within the framework of the existing legislation and how to comply with the requirements of Article   6 § 1 (ibid., §§ 12-15). In 2016, the Court adopted a leading judgment consolidating its approach to the problem and traced its origin to an apparent deficiency in the Russian legal system, which makes no provision for detainees’ participation in civil proceedings (see Yevdokimov and Others , cited above, § 60). The number of incoming applications that are prima facie admissible went down in 2016 and 2017. However, the main reason for that development appears to be the Court’s decision to recognise that the two-tier cassation in civil proceedings is an effective remedy that needs to be exhausted (see Abramyan and Others v.   Russia (dec.), nos.   38951/13 and 59611/13, 12 May 2015). Nevertheless, in the last two years the Court has processed approximately fifty such applications, of which two thirds were lodged in 2017. Noting that the legislative framework has not evolved at the domestic level and that Russian courts have not followed the directions given by the Constitutional Court and the Supreme Court, the Court finds that the actions based on defective legislation and inconsistent judicial practice amount to a structural problem which gives rise to repetitive applications. 48.     That being said, the Court observes that it has provided a comprehensive outline of the issues that need to be addressed by the Russian courts, and of the counterbalancing measures that they need to put in place, in order to secure the incarcerated litigants’ right to a fair trial (see Yevdokimov and Others , cited above, §§ 33-48). It has also reiterated that the existing situation calls for the adoption of general measures by the respondent State, which remains, subject to monitoring by the Committee of Ministers, free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court’s judgment (ibid., §   60). Since that judgment was adopted less than two years ago, the Court will abstain at the present time from formulating general measures or applying the pilot-judgment procedure, considering that the indications provided above will help to ensure the proper execution of the present judgment under the supervision of the Committee of Ministers (see   Savriddin Dzhurayev v. Russia , no. 71386/10, § 264, ECHR   2013   (extracts)). It is for the Committee of Ministers to assess the effectiveness of the measures proposed by the Russian Government and to follow up on their subsequent implementation in line with the Convention requirements (see Lindheim and Others v. Norway , nos.   13221/08 and 2139/10, §   137, 12   June 2012). 49.     Should the efforts made by the Government to tackle the underlying Convention problem prove to be insufficient, the Court may reassess the need to apply the pilot-judgment procedure to this type of cases (see Rutkowski and Others v. Poland , nos. 72287/10 and 2 others, §§   203 ‑ 06,   219 et passim , 7 July 2015; Gazsó v. Hungary , no.   48322/12, §§   32-33 and 35, 16 July 2015, and Novruk and Others v. Russia , nos.   31039/11 and 4 others, §   135, 15 March 2016). FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Decides to join the applications;   2.     Decides to strike the applications lodged by Mr   Kuznetsov, Mr   Siverkov and Mr Sulimov out of its list of cases in accordance with Article   37   §   1   (c) of the Convention;   3.     Declares the complaints lodged by Mr   Igranov, Mr Zhundo, Mr   Khvorostyanoy, Mr Resin, Mr Malygin and Mr Lupanskiy admissible;   4.     Holds that there has been a violation of Article 6 § 1 of the Convention;   5.     Holds (a) that the respondent State is to pay, within three months of the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to each of the applicants Mr   Igranov, Mr Zhundo, Mr   Khvorostyanoy, Mr Resin, Mr Malygin and Mr Lupanskiy, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on such amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;   6.     Rejects the remainder of the applicants’ claims. Done in English, and notified in writing on 20 March 2018, pursuant to Rule   77   §§   2 and 3 of the Rules of Court. Stephen Phillips   Helena Jäderblom   Registrar   President In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Keller is annexed to this judgment.   H.J. J.S.P.   CONCURRING OPINION OF JUDGE KELLER I.     Introduction 1.     For the reasons set out in paragraphs 33–36 of the present judgment I am in full agreement with the majority of my colleagues that there has been a breach of the principle of a fair trial under Article 6 § 1 of the Convention as a result of the applicants’ inability to present their cases effectively before the national courts. However, I am unable to agree with my colleagues’ conclusion that the pilot-judgment procedure is not suited to the current case. 2.     Despite observing a structural problem which has given rise to repetitive applications, my colleagues conclude that there is no need to adopt a pilot-judgment procedure because the Court has already provided, in a previous case, an outline of the issues that need to be addressed and the counterbalancing measures that need to be adopted. The Court also holds that the situation in the present case does not call for the adoption of general measures. I respectfully disagree with this conclusion and argue that this case was a missed opportunity to adopt a pilot-judgment approach, through which the Court could have provided the respondent Government with concrete indications on how the structural and systemic problem should be resolved. Adopting a pilot judgment would have been in line with previous case-law, would have helped the Court to deal with the large number of pending and incoming cases and would have aided the Committee of Ministers in examining the execution of these judgments. 3.     This opinion sketches the general principles of the pilot-judgment procedure (II.), provides context to this case (III.), and highlights the main reasons why the Court should have adopted a pilot judgement in this case   (IV.). I argue that given the systemic and structural problem in the respondent State, which has consistently given rise to a violation of the Convention, the Court should have used this case to indicate what general measures must be taken by the Russian Government to fix the systemic defect and to give current and future applicants a domestic remedy. II.     General principles 4.     Article 46 of the Convention “imposes on the respondent State a legal obligation to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to secure the right of the applicants which the Court has found to be violated” (see Kurić and Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 132, ECHR 2014). Such measures must be taken “in respect of other persons in the applicants’ position, notably by solving the problems that have led to the Court’s findings” (ibid . , § 132). Where structural problems give rise to repetitive applications (in other words, where a large group of identical cases derive from the same underlying problem), the Court has previously adopted the pilot-judgment procedure, which allows it to “clearly identify in a judgment the existence of structural problems underlying the violations and to indicate specific measures or actions to be taken by the respondent State to remedy them” (ibid., § 133; see also Broniowski v. Poland [GC], no. 31443/96,   §§ 190 and 191, ECHR 2004-V) [1] . The case chosen for the pilot-judgment procedure must cover all of the factual and legal aspects of the systemic problem. 5.     After adopting the pilot-judgment procedure the respondent State is subsequently required to eliminate the source of the violation for the future and provide a remedy for the past prejudice suffered by both the applicants in the pilot case and all other victims of the same type of violation (see Burmych and Others v. Ukraine [GC], nos. 46852/13   et al., § 161, ECHR 2017). The pilot-judgment procedure allows “the speediest possible redress to be granted at domestic level to the large number of people suffering from the general problem identified in the pilot judgment, thus implementing the principle of subsidiarity which underpins the Convention system” (see Kurić and Others , cited above, § 134). It also reduces the threat to the effective functioning of the Convention system, by reducing the number of similar applications before the Court (see Burmych and Others , cited above, § 159). 6.     Since Broniowski , the Court has delivered a number of pilot judgments where it has directed States to take general measures to solve systemic problems, such as legislative dysfunctions or defective practices affecting property rights [2] , excessive length of proceedings [3] , inadequate conditions of detention [4] , non-enforcement of final domestic judgments and decisions [5] , and other issues [6] . In Burdov v. Russia (no. 2) (no. 33509/04, §   122, ECHR 2009), for example, the applicants claimed that long delays in the enforcement of judgments awarded in their favour violated the Convention. At the outset of that case, the Court noted that “non-enforcement or delayed enforcement of domestic judgments constitute[d] a recurrent problem in Russia that ha[d] led to numerous violations of the Convention” and remarked further that the Court had “already found such violations in more than two hundred judgments since the first such finding in the Burdov case in 2002” (ibid.). The Court considered it appropriate to apply the pilot-judgment procedure given the “recurrent and persistent nature of the underlying problems, a large number of people affected by them in Russia and the urgent need to grant them speedy and appropriate redress at the domestic level” (ibid., § 130). 7.     Once the Court has instituted a pilot-judgment procedure, it has some flexibility with regard to the other cases arising from the same problem. Where general measures include a new legal remedy capable of providing sufficient and adequate redress at a domestic level, the Court has declared follow-up cases stemming from the same systemic issue inadmissible for non-exhaustion of local remedies and “repatriated” them to the respondent States (see, for instance, Xynos v. Greece , no.   30226/09, 9 October 2014). Where States have introduced domestic legislation that provided existing and potential victims with relief at the domestic level, the Court has simply struck out cases already on its list (see, for instance, E.G. v. Poland and 175 Other   Bug River applications v. Poland &#xa