CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 13 octobre 2020

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sB853CD2D { font-family:Arial; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s58699FB5 { margin-top:14pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .sDAD2B73A { margin-top:14pt; margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s76334B44 { margin-top:14pt; margin-left:36.55pt; margin-bottom:6pt; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-style:italic } .s12CB6876 { margin-left:28.6pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; padding-left:0.6pt; font-family:Arial; font-weight:bold } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s403582AA { width:8.67pt; display:inline-block } .sD462BB4 { width:125.51pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     THIRD SECTION DECISION Applications nos. 56335/10 and 23228/14 Larisa Viktorovna KOVALEVA against Russia   The European Court of Human Rights (Third Section), sitting on 13   October 2020 as a Committee composed of:   Georgios A. Serghides, President,   Georges Ravarani,   María Elósegui, judges, and Olga Chernishova, Deputy Section Registrar , Having regard to the above applications lodged on 2 September 2010 and 28 February 2014 respectively, Having regard to the observations submitted by the Russian Government (“the Government”) and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Larisa Viktorovna Kovaleva, is a Russian national who was born in 1948 and lives in Moscow. 2.     The Government were initially represented 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. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. Sale of a flat and related civil proceedings 4.     On 25 December 2007 the applicant bought a flat at public auction. The price was set at 9,379,870 Russian roubles (RUB), the equivalent then of 263,633 euros. The flat had belonged to a private individual, Mr F., and had been seized by virtue of a court decision in relation to his debts. 5.     On 14 July 2008 the Moscow Department of the Federal Bailiff Service carried out an investigation in respect of a bailiff, Mr M., at the request of Mr   F., the former owner of the flat. The department found that Mr M. had sold the flat, which had been the only registered place of residence of Mr F. and his family, in breach of the law on enforcement proceedings. 6.     On 17 November 2008 the Kuzminskiy District Court held, on an application by Mr F., that the public auction had been invalid. 7.     On 12 October 2009 the Kuzminskiy District Court allowed Mr F.’s claim against the applicant and annulled the sale agreement. 8.     On 21 October 2009 the Kuzminskiy District Court of Moscow convicted Mr M. of abuse of power and sentenced him to three years’ imprisonment. 9.     On 23 March 2010 the Moscow City Court upheld the decision of 12   October 2009 on appeal. Proceedings against the Federal Bailiff Service 10.     In 2014, after a number of unsuccessful attempts to recover the price of the flat bought at auction from the Federal Agency for State Property (“the Agency”), the applicant decided to initiate civil proceedings against the Federal Bailiff Service and the Ministry of Finance. On the basis of the legal provisions on invalid transactions, she asked for them to pay her a sum corresponding to the price of the flat with interest. 11.     On an unspecified date, the Meshchanskiy District Court scheduled a hearing for 17 April 2014. 12.     On 17 April 2014 the Meshchanskiy District Court adjourned the hearing because the applicant’s lawyer was engaged in other proceedings. A new hearing was scheduled for 22 October 2014. 13.     On 21 October 2014 the applicant informed the court that she could not attend the hearing on health grounds and asked the court to adjourn the hearing. She enclosed a copy of a medical certificate and stated that she would provide the original at the next hearing. 14.     On 22 October 2014 the Meshchanskiy District Court dismissed her claim. The court stated that the applicant had been duly informed of the hearing but did not attend it. The hearing had already been adjourned on 17   April 2014. The court concluded that the applicant had abused her rights and had violated the right of the other party to have the proceedings conducted within a reasonable time. 15 .     On 20 March 2015 the Moscow City Court dismissed an appeal by the applicant against the decision of 22 October 2014, in her presence. Events after communication of the application 16.     On 15 February 2019 the Government informed the Court in their observations that before they had been given notice of the case on 7   September 2018, the applicant had initiated civil proceedings relating to unjust enrichment against the Agency on account of the loss of the flat. 17 .     On 22 May 2018 the Tverskoy District Court of Moscow allowed her claim and awarded her RUB 9,379,870, being the price paid by the applicant at auction for the flat. 18.     In October 2018 the Agency and the Ministry of Finance lodged appeals against that decision and asked for the time-limit for an appeal to be restored. 19.     On 19 November 2018 the Tverskoy District Court of Moscow allowed the time-limit for an appeal to be restored. 20.     On 2 April 2019 the Ministry of Finance withdrew its appeal. 21.     On 16 April 2019 the Moscow City Court overturned the decision of 19   November 2018 and rejected the appeal without a hearing owing to the expiry of the deadline for an appeal. Relevant domestic law 22.     Domestic provisions governing the notification of litigants in civil proceedings are described in Gankin and Others v. Russia (nos. 2430/06, and 3 others, §§ 16-17, 31 May 2016). COMPLAINTS 23.     The applicant complained under Article 6 of the Convention of a violation of her right to a fair hearing. 24.     She further complained under Article 1 of Protocol No. 1 that she had been deprived of her flat owing to the mistake of a bailiff. THE LAW Joinder of the applications 25.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. Complaint under Article 6 § 1 of the Convention (application no.   23228/14) 26.     The applicant complained, under Article   6 of the Convention, that she had not attended the hearing at Meshchanskiy District Court of Moscow held on 22 October 2014. The relevant parts of Article 6 §   1 provide: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 27.     The Government submitted that the applicant had been duly informed of the hearing and that the hearing had been adjourned once. The domestic court had refused to adjourn the hearing any further to avoid procrastination. 28.     The Court reiterates that Article 6 of the Convention does not guarantee the 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 of the Convention leaves to the State a free choice of the means to be used in guaranteeing litigants these rights. The Court should establish whether an applicant who was a party to civil proceedings was given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present his case under conditions that did not place him or her at a substantial disadvantage vis ‑ à ‑ vis his or her opponent. In determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, it must consider the proceedings as a whole, including the decision of the appellate court (see Gankin and Others v. Russia , nos.   2430/06 and 3 others, § 25, 31   May 2016, with further references). 29.     In the present case, the applicant was indeed absent from the hearing in her case on 22 October 2014. However, she was present during the examination of the case on appeal and made oral submissions (see paragraph 15 above). Having regard to the broad scope of the review of judgments by the appellate courts provided for by the Russian Code of Civil Procedure, the Court is satisfied that any breach of the fair-trial guarantees enshrined in Article 6 of the Convention caused by the applicant’s absence from the hearing of her case on 22 October 2014 was remedied during the examination of her case on appeal on 20 March 2015 (see Krapivin v.   Russia , no.   45142/14, §   82, 12   July 2016). 30.     It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Complaint under Article   1 of Protocol No.   1 (application no.   56335/10) 31.     The applicant alleged a violation of Article 1 of Protocol No.   1 in connection with the breach of her right to the peaceful enjoyment of her possessions. 32.     The Government stated that the violation had been remedied at domestic level. Having regard to the applicant’s failure to inform the Court of that fact, they argued that the applicant had abused her right of petition and asked the Court to declare her application inadmissible. 33.     The applicant stated that she had not informed the Court of the decision of 22 May 2018, because the authorities had lodged appeals against that decision. 34.     The Court reiterates that in accordance with Rule 47 § 6 of the Rules of Court, applicants must keep the Court informed of all circumstances relevant to the application. It further notes that an application may be rejected as an abuse of the right of application under Article 35 § 3 of the Convention, among other reasons, if it was knowingly based on untrue facts (see Varbanov v. Bulgaria , no. 31365/96, § 36, ECHR 2000 ‑ X; Řehák v. the Czech Republic (dec.), no.   67208/01, 18 May 2004; Popov v.   Moldova (no.   1) , no.   74153/01, § 48, 18 January 2005; Kerechashvili v. Georgia (dec.), no. 5667/02, ECHR 2006 ‑ V; and Predescu v.   Romania , no.   21447/03, §§ 24-27, 2 December 2008). 35.     Incomplete and therefore misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Poznanski and Others v. Germany (dec.), no. 25101/05, 3 July 2007, and Hadrabová and Others v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007). 36.     In the present case, the applicant was aware of the court decision delivered on 22 May 2018 (see paragraph 17 above). Notice of the case was given on 7   September 2018. The applicant did not inform the Court of that decision either before or after notice was given. The fact that the decision of 22 May 2018 was amenable to appeal does not release the applicant from the duty to inform the Court about important changes in her case. 37.     Having regard to the importance of the information in issue for the proper determination of the present case, the Court finds that the applicant’s conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention. 38.     In view of the above, it is appropriate to reject the application as an abuse of the right of application pursuant to Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 5 November 2020.   Olga Chernishova   Georgios A. Serghides   Deputy Registrar   President