The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.
CASE OF KHARLAMOV AND SHCHERBATENKO v. RUSSIA
(Applications nos. 40959/19 and 19258/20)
23 June 2022
This judgment is final but it may be subject to editorial revision.
In the case of Kharlamov and Shcherbatenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Darian Pavli, President,
Mikhail Lobov, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,
Having deliberated in private on 2 June 2022,
Delivers the following judgment, which was adopted on that date:
1. The case originated in applications against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.
2. The Russian Government (“the Government”) were given notice of the applications.
3. The list of applicants and the relevant details of the applications are set out in the appended table.
4. The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties.
I. JOINDER OF THE APPLICATIONS
5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
6. The applicants complained that their right to a fair hearing had been breached on account of the domestic courts’ failure to properly and timeously notify them of hearings in the civil proceedings to which they were parties. They relied on Article 6 § 1 of the Convention, which reads as follows:
Article 6 § 1
“In the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …”
7. The Court observes that the general principles regarding the right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59-60, ECHR 2005-II).
8. The applicants alleged that they had not received the summonses and/or were not informed in due time of the date and place of hearings in their cases. The Court reiterates that domestic courts must make reasonable efforts to summon the parties to a hearing (see Kolegovy v. Russia, no. 15226/05, § 42, 1 March 2012, and Babunidze v. Russia (dec.), no. 3040/03, 15 May 2007). Litigants must also take appropriate measures to ensure effective receipt of correspondence the domestic courts may send them (see Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey, no. 21377/03, § 38, 21 January 2014; Boyko v. Ukraine (dec.), no. 17382/04, 23 October 2007; and Darnay v. Hungary, no. 36524/97, Commission decision of 16 April 1998). Moreover, the Court has noted that a lack or deficiency of reasons in domestic decisions as regards the proof of receipt of summonses by the applicants, as well as the domestic courts’ failure to assess the necessity to adjourn hearings pending the applicants’ proper notification or to delve on the nature of their legal claims which could have rendered the applicants’ presence unnecessary cannot be made up ex post facto in the Court proceedings, for it cannot take the place of the national courts which had the evidence before them (see Gankin and Others v. Russia, nos. 2430/06 and 3 others, §§ 41-42, 31 May 2016).
9. In the leading case of Gankin and Others, cited above, the Court already found a violation in respect of issues similar to those in the present case.
10. Having examined all the material submitted to it and lacking any evidence of proper notification of the applicants, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court finds that by proceeding to consider the merits of the applicants’ cases without attempting to ascertain whether they had been or should have been at least aware of the date and time of the hearings, and, if they had not, whether the hearings should have been adjourned, the domestic courts deprived the applicants of the opportunity to present their cases effectively and fell short of their obligation to respect the principle of fair trial enshrined in Article 6 of the Convention.
11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
12. 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.”
13. Regard being had to the documents in its possession and to its case‑law (see, in particular, Igranov and Others v. Russia, nos. 42933/13 and 8 others, § 40, 20 March 2018), the Court considers it reasonable to award the sums indicated in the appended table.
14. The Court further 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,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the unfairness of the civil proceedings;
(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State 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 the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default during the default period plus three percentage points.
Done in English, and notified in writing on 23 June 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Viktoriya Maradudina Darian Pavli
Acting Deputy Registrar President
List of applications raising complaints under Article 6 § 1 of the Convention
(applicant’s absence from civil proceedings)
Date of introduction
Year of birth
|Representative’s name and location||Nature of the dispute
|First-instance hearing date
|Appeal hearing date
|Final decision date
|Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
|Konstantin Vladimirovich KHARLAMOV
|Shkurko Leonid Genrikhovich
Kuzminskiy District Court of Moscow
Moscow City Court
Supreme Court of the Russian Federation
|Larisa Nikolayevna SHCHERBATENKO
|Compensation dispute between private parties||08/02/2019
Justice of the Peace of the 10th Court Circuit of the Promyshlennyy District of Stavropol
Promyshlennyy District Court of Stavropol
Stavropol Regional Court, decision served at a later date
[i] Plus any tax that may be chargeable to the applicants.