CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 24 juillet 2018

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RUSSIA   (Application no. 30906/06)               JUDGMENT               STRASBOURG       24 July 2018       This judgment is final but it may be subject to editorial revision. In the case of Gazizov v. Russia, The European Court of Human Rights (Third Section), sitting as a Committee composed of:   Alena Poláčková, President,   Dmitry Dedov,   Jolien Schukking, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 3 July 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   30906/06) 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   Rustem Rifgatovich Gazizov (“the applicant”), on 4   July 2006. 2.     The applicant was represented by Ms   Y.   Gazizova, a lawyer practising in Naberezhnyye Chelny. The Russian Government (“the Government”) were represented by their Agent, Mr   M.   Galperin, the Representative of the Russian Federation to the European Court of Human Rights. 3.     On 16   March 2017 the complaints concerning the applicant’s absence from criminal proceedings and the failure to serve the other parties’ written submissions on him, as well as the complaint concerning his delayed notification of the first-instance hearing in civil proceedings were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule   54 §   3 of the Rules of Court. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1978 and lives in Naberezhnyye Chelny. A.     Criminal proceedings 5.     The applicant was a police officer. On 1   November 2004 he was arrested on suspicion of having extracted a bribe. 6.     On 10   November 2005 the Supreme Court of the Tatarstan Republic convicted the applicant and sentenced him to imprisonment. He stayed under the obligation not to leave his place of residence in Naberezhnyye Chelny until the conviction became final. He could leave his place of residence only upon the summons from the investigator or the court. 7.     Several parties to the criminal proceedings, including the applicant, appealed against the conviction. The case was forwarded to the Russian Supreme Court in Moscow, 1,000   km away from Naberezhnyye Chelny. The applicant never received any summons to the appeal hearing due to the Supreme Court’s mistake in the postal code. Neither did he receive copies of the statements of appeal filed by the prosecutor, by the co-accused, G., and the latter’s lawyer. 8.     On 28   February 2006 the conviction was upheld by the Russian Supreme Court. The prosecutor and G.’s lawyer attended the appeal hearing. Neither the applicant nor his lawyer was present. B.     Civil proceedings 9.     In 2011 the applicant lodged a compensation claim for non-pecuniary damages caused by poor conditions of detention. In the text of his claim the applicant explicitly asked the court to consider the claim in his absence. On 14   April 2011 the Bugulminskiy Town Court of the Tatarstan Republic dismissed his claim. The applicant received the notification of the time and date of the hearing after the hearing had actually taken place. 10.     The first-instance judgment was upheld on 4   July 2011 by the Supreme Court of the Tatarstan Republic. The applicant had been notified of that hearing on 29   June 2011. II.     RELEVANT DOMESTIC LAW 11.     For the legal provisions, in force at the material time, regarding the criminal proceedings before an appeal court see Kozlitin v.   Russia (no.   17092/04, §§   24-29, 14   November 2013). 12.     For the legal provisions, in force at the material time, regarding civil proceedings see Gankin and Others v.   Russia (nos.   2430/06 and 3   others, §§   29-32, 31   May 2016). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION WITH REGARD TO THE CRIMINAL PROCEEDINGS 13.     The applicant complained that he and his lawyer were absent from the appeal hearing on 28   February 2006 and that the other parties’ appeal statements had not been served on him before that hearing. The applicant referred to Article   6 of the Convention, which, as far as relevant, reads as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 3.     Everyone charged with a criminal offence has the following minimum rights: ... (b)     to have adequate time and facilities for the preparation of his defence; (c)     to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ...” A.     Admissibility 14.     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 15.     The applicant stated that due to the court’s mistake in the postal code he had not received the summons to the hearings before the Russian Supreme Court. He also stated that the other parties’ statements of appeal had been sent to all the parties to the proceedings, except him. 16.     The Government argued that the notifications had been sent to the applicant’s place of residence and registration. Moreover, as the applicant had not been deprived of liberty till the conviction became final, he could fully examine the case-file, including the other parties’ statements of appeal, and could appear before the appeal court. 17.     The Court will first consider the complaint about the applicant’s and his lawyer’s absence before the appeal court. 18.     The Court reiterates that the right of an accused to participate in person in the trial is a fundamental element of a fair trial (see Novoselov v.   Russia (dec.), no.   66460/01, 8   July 2014, with further references). However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing even where an appellate court has full jurisdiction to review the case on questions both of fact and law (see Hermi v.   Italy [GC], no. 18114/02, §   60, ECHR 2006 ‑ XII, and Vanyan v.   Russia , no.   53203/99, §   60, 15   December 2005). 19.     The Court observes that the Russian Supreme Court, acting as an appeal court, had to exercise the full review of the case. It actually re ‑ assessed the facts, evidence, trial court’s legal conclusions, as well as the applicant’s personality while determining his sentence. The prosecutor was present and insisted on upholding the conviction. Neither the applicant nor his lawyer attended. 20.     The parties did not dispute that the applicant could only leave his place of residence upon the summons from the investigator or the court, as a restraint measure not to leave the town had been imposed on him by the trial court. The appeal hearings were to be held in Moscow, about 1,000   km away from the applicant’s place of residence in Naberezhnyye Chelny. The Government failed to substantiate their argument that the summons from the appeal court had been sent to the applicant’s correct address. For the above reasons the Court rejects the Government’s arguments that the applicant had been duly summoned and had been given an opportunity to attend the appeal hearing. 21.     Neither of the parties has submitted any information on the notification of the applicant’s lawyer about the appeal hearing. The Court, nevertheless, notes that the appeal court did not look into the matter of the applicant’s and the lawyer’s notification and the reasons for their absence. 22.     For the above reasons the Court comes to the conclusion that the applicant had not been afforded an effective opportunity, either in person or through legal representation, to attend the appeal hearing and to defend his interests in the appeal court, while the prosecutor and the other party’s lawyer attended and made their case. Accordingly, there has been a violation of Article   6 §§   1 and 3 (c) of the Convention. 23.     Having regard to the above findings the Court considers that it is not necessary to examine separately the applicant’s complaint about the failure to serve the other parties’ appeal statements on him. II.     ALLEGED VIOLATION OF ARTICLE   6 OF THE CONVENTION WITH REGARD TO THE CIVIL PROCEEDINGS 24.     The applicant complained about the delayed notification of the hearing before the first-instance court in the civil proceedings. He relied on Article   6 §   1 of the Convention, which, as far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 25.     The Government contested the arguments and submitted a copy of a notification signed by the applicant on 23   March 2011. They also insisted that the applicant had requested the civil case to be heard in his absence. 26.     The general principles and the Court’s findings concerning defective notifications of parties to civil proceedings have been summarised in Gankin and Others (cited above). In that case none of the applicants had waived his or her right to be present at the appeal hearings. Due to the defective notification the applicants were unaware of the date of the appeal hearings in their cases. The Court found a violation of Article   6 §   1 of the Convention. 27.     In the present case the applicant had unequivocally waived his right to be present at the hearings before the courts of both instances. Neither the letter nor the spirit of Article   6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner, must not run counter to any important public interest and must be attended by minimum safeguards commensurate with its importance (see Sejdovic v.   Italy [GC], no.   56581/00, §   86, ECHR 2006-II). For a waiver to be effective it must be shown that the applicant could reasonably have foreseen the consequences of his conduct (see Sejdovic , cited above, §   87; Idalov v.   Russia [GC], no.   5826/03, §   173, 22   May 2012; and Jones v.   the United Kingdom (dec.), no.   30900/02, 9   September 2003). Turning to the facts of the present case, the Court finds no reason to doubt that the waiver have been done by the applicant voluntarily, knowingly and intelligently. 28.     The Court does not lose sight of the fact that despite the waiver, such as the one made by the applicant in the present case, the Russian law imposed on courts an obligation to notify a party of the hearings. Even assuming that the first-instance court had failed to properly comply with that requirement in the applicant’s case, it did not overstep the boundaries of the waiver when it subsequently carried out the examination of the case in his absence and on the basis of his written submissions. As to the hearing before the appeal court, the Court notes, and it has not been contested by the parties, that the applicant was duly and timely notified thereof, but did not express any wish to take part in the appeal hearing in person, thus once again having confirmed his initial wish to have the case examined without his personal attendance. He effectively presented his case before the appeal court through written submissions. These facts have not been contested by the parties. 29.     For the above reasons the Court comes to the conclusion that the defective notification of the hearing before the first-instance court has not prejudiced the overall fairness of the civil proceedings. It follows that there is no appearance of a violation of Article   6 §   1 of the Convention, and that this part of the application is accordingly manifestly ill-founded and must be rejected, in accordance with Article   35 §§   3 (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 30.     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 31.     The applicant claimed 20,000   euros in respect of non-pecuniary damage. 32.     The Government argued that the applicant’s claims were excessive, unreasonable and did not correspond to the Court’s case-law. 33.     The Court concludes that the reopening of the proceedings is the most appropriate form of redress for the established violation of the applicant’s rights, should he request it (see Zadumov v.   Russia , no.   2257/12, §§   80-81, 12   December 2017, with further references, and Shvedov and Others v.   Russia [Committee], nos.   7148/06 and 16   others, §   29, 27   February 2018). Therefore, the finding of a violation constitutes sufficient just satisfaction in the present case. B.     Costs and expenses 34.     The applicant claimed 20,000   Russian roubles (RUB) for the costs and expenses incurred before the domestic courts and RUB 100,000 for those incurred before the Court. 35.     The Government argued that the applicant had failed to prove that those expenses had been actually and necessarily incurred and had been reasonable as to quantum. 36.     Regard being had to the documents in its possession and to its case ‑ law, the Court rejects the claim for costs and expenses as unsubstantiated. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaints related to the criminal proceedings against the applicant admissible and the remainder of his application inadmissible;   2.     Holds that there has been a violation of Article   6 §§   1 and 3 (c) of the Convention with regard to the applicant’s absence from the appeal court in the criminal proceedings;   3.     Holds that there is no need to examine the complaint under Article   6 of the Convention about the failure to serve the other parties’ appeal statements on the applicant in the criminal proceedings;   4.     Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 July 2018, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Fatoş Aracı   Alena Poláčková Deputy Registrar   President