CEDH · CASELAW;COMMUNICATEDCASES;ENG — 3 août 2020

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .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 } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .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 } .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 } .sA36B60A1 { font-family:Arial; font-style:italic } Communicated on 3 August 2020 Published on 24 August 2020   THIRD SECTION Application no. 20191/18 Sana Validovna TEREKHINA against Russia lodged on 11 April 2018 STATEMENT OF FACTS The applicant, Ms Sana Validovna Terekhina, is a Russian national, who was born in 1978 and lives in Moscow. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 11 January 2013 the applicant’s mother died. After her death Mr D., the applicant’s step-father, suffered panic attacks and lack of concentration. On 24 June 2013 Ms T., Mr D.’s second daughter, asked the Cheremushkinskiy District Court of Moscow (the “District Court”) to incapacitate Mr D. Since September 2013 Mr D. was treated for psychosis in the Alekseyev Psychiatric Hospital No. 1 in Moscow (the “Hospital”). On 11 December 2013 Mr D. checked out from the Hospital. On 11 January 2014 he made a will to give his flat to the applicant and Ms T. On 16 January 2014 Mr D. had a voluntary psychiatric examination which showed that he had psychological problems related to the death of his wife but he was able to understand the consequences of and control his actions. On 18 March 2014 the District Court dismissed Ms T.’s claim to incapacitate Mr D. having established that Mr D. did not suffer of any psychiatric disease which could influence his mental capacity. On 9 November 2015 Mr D. died. On 26 February 2016 Ms T. asked the District Court to hold Mr D.’s will void. The District Court requested the Hospital to conduct a post mortem forensic examination to establish whether Mr D. was a person of unsound mind as of the date of the will. On 30 June 2016 the experts of the Hospital found that Mr D. suffered of psychological disorder which prevented him from controlling his actions in January 2014. The applicant submitted a report of experts from the Serbskiy State Scientific Centre of Social and Forensic Psychiatry made on 16 January 2014. On 12 May and 27 July 2016 the District Court heard Mr D.’s acquaintances who stated that Mr D. had had some psychological problems after his wife’s death. On 27 September 2016 one of the above experts confirmed that Mr D. had suffered from psychological problems which however had not affected his memory and mental capacities. On 29 November 2016 the District Court allowed Ms T.’s claim holding based on the report provided by the Hospital experts that Mr D. could not understand the consequences of his actions on 11 January 2014 and therefore the will executed by him on this date was void. It heard Mr S. and Ms Ch., psychiatrists who had analysed the Hospital experts’ report and had stated that it was not adequate, comprehensive and contained incorrect conclusions on Mr D.’s state of health in violation of the law on expert examination. The applicant and her representative asked the court to conduct additional forensic examination. The District Court dismissed their request stating that the Hospital experts had been reminded of possible criminal prosecution for false expert report. The expert report submitted by the applicant had been prepared at her lawyer’s private request. The report provided by the Hospital experts contained answers to all questions asked by the court and experts’ conclusions were based on scientific data and documents relating to Mr D.’s health. The reports submitted by the applicant could not be taken into account because the applicant’s experts had not studied all evidence and documents examined by the court, and therefore their conclusions were inaccurate. The applicant and her representative lodged an appeal stating that the Hospital experts had not been impartial because they had treated Mr D. and Mr D. had been in conflict with them. Therefore, the court could not ground its decision on their report. On 10 March 2017 the Moscow City Court dismissed her appeal. On 23 June 2017 the judge of the Moscow City Court refused to remit the applicant’s cassation appeal for examination on merits. Relevant domestic law If a question requiring knowledge in a specific area of science, technology, arts or crafts arises, the court may order and charge an expert institution, a particular expert or experts to conduct an expert examination. The parties to the proceedings may submit to the court questions for the experts. They may ask the court to charge a particular expert institution or expert to conduct an expert examination, to lodge a challenge against the experts, ask them questions, to study the court’s decision on the expert examination and the expert report, and ask the court to conduct an expert re ‑ examination or an additional expert examination. If one of the parties refuses to participate in the expert examination (provide material and documents for examination and so forth), and if in such a case the expert examination is impossible, the court may acknowledge or refute the facts to be established by the expert (Article 79 of the Code of Civil Procedure (“the CCP”)). The court is not bound by the expert report and must assess its contents in accordance with the rules established for examination of evidence. If the court does not agree with the report, it shall provide reasons in its decision (Article 86 of the CCP). In a case where the expert report does not provide clear results, the court may ask the same or another expert to conduct an additional expert examination. In a case of doubt as to accuracy or reasoning of the expert report, discrepancies in expert reports prepared by several experts, the court may ask another expert or experts to carry out a re-examination of the same issues (Article 87 of CCP). Under Article 18 of the CCP, an expert may be recused on the same grounds as a judge, i.e. if he or she has previously acted in the case, whether as a prosecutor, courtroom secretary, representative, witness, expert, specialist or interpreter; has a parental or other close family relationship with any of the parties or their representatives; has a personal direct or indirect interest in the case or if for any other reason, his or her impartiality may be called into doubt. Furthermore, an expert may not engage in examination of a case if he or she is subordinated to one of the parties to the proceedings or their representatives or in any other way depends on them. COMPLAINTS The applicant complains under Article 6 of the Convention that the civil proceedings relating to succession were unfair because the expert examination procedure was defective. She also complains under Article 1 of Protocol No. 1 that the domestic courts’ decision to hold void the will was based on a defective expert report. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing in the determination of her civil rights and obligations, in accordance with Article 6 § 1 of the Convention? As regards the equality of arms, were the experts in the present case appointed according to a fair procedure? Were they independent? Did the applicant have the possibility to take part in the expert examination, comment on the expert report and provide alternative reports (see Mantovanelli v. France , 18 March 1997, §§ 30-36, Reports of Judgments and Decisions 1997 ‑ II; Sara Lind Eggertsdóttir v. Iceland , no. 31930/04, §§   28-53, 5 July 2007; Shulepova v. Russia , no. 34449/03, §§ 61-70, 11   December 2008; and, mutatis mutandis , Lashin v. Russia , no. 33117/02, §   87, 22 January 2013)? 2.     Was the applicant deprived of her possession in accordance with the conditions provided for by law, within the meaning of Article 1 of Protocol No. 1? If so, was that deprivation necessary to control the use of property in accordance with the general interest? In particular, did that deprivation impose an excessive individual burden on the applicant (see Molla Sali v.   Greece [GC], no. 20452/14, §§ 133-162, 19 December 2018, and Vulakh and Others v. Russia , no. 33468/03, §   44, 10 January 2012)?