{"id":1102,"date":"2019-04-17T16:31:39","date_gmt":"2019-04-17T16:31:39","guid":{"rendered":"https:\/\/laweuro.com\/?p=1102"},"modified":"2019-11-02T05:49:50","modified_gmt":"2019-11-02T05:49:50","slug":"case-of-shepelev-and-bukin-v-russia","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=1102","title":{"rendered":"CASE OF SHEPELEV AND BUKIN v. RUSSIA (European Court of Human Rights)"},"content":{"rendered":"

THIRD SECTION
\nCASE OF SHEPELEV AND BUKIN v. RUSSIA
\n(Applications nos. 56859\/13 and 15646\/17)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n21 February 2019<\/p>\n

This judgment is final but it may be subject to editorial revision.<\/p>\n

In the case of Shepelevand Bukinv. Russia,<\/strong><\/p>\n

The European Court of Human Rights (Third Section), sitting as a Committee composed of:<\/p>\n

Alena Pol\u00e1\u010dkov\u00e1, President,
\nDmitry Dedov,
\nJolien Schukking, judges,
\nand Liv Tigerstedt Acting Deputy Section Registrar,<\/p>\n

Having deliberated in private on 31 January 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in applications against Russia lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on the various dates indicated in the appended table.<\/p>\n

2.\u00a0\u00a0Notice of the applications was given to the Russian Government (\u201cthe Government\u201d).<\/p>\n

THE FACTS<\/strong><\/p>\n

3.\u00a0\u00a0The list of applicants and the relevant details of the applications are set out in the appended table.<\/p>\n

4.\u00a0\u00a0The applicants complained of the domestic courts\u2019 failure to ensure their participation in hearings in the civil proceedings to which they were parties.<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0JOINDER OF THE APPLICATIONS<\/p>\n

5.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n

II.\u00a0\u00a0THE GOVERNMENT\u2019S REQUEST TO STRIKE OUT AN APPLICATION UNDER ARTICLE 37 \u00a7 1 OF THE CONVENTION<\/p>\n

6.\u00a0\u00a0The Government submitted a unilateral declaration in application no. 15646\/17 which did not offer a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (Article 37 \u00a7 1 in fine). The Court rejects the Government\u2019s request to strike the application out and will accordingly pursue its examination of the merits of the case (see Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307\/95, \u00a7 75, ECHR 2003\u2011VI, and Igranov and Others v. Russia, nos. 42399\/13 and 8 others<\/a>, \u00a7\u00a7\u00a025-27, 20 March 2018).<\/p>\n

III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE\u00a06 \u00a7 1 OF THE CONVENTION<\/p>\n

7.\u00a0\u00a0The applicants complainedthat their right to a fair hearing had been breached on account of the domestic courts\u2019 failure to properly and timely notify them of hearings in the civil proceedings to which they were parties. They relied on Article\u00a06 \u00a7 1 of the Convention, which reads as follows:<\/p>\n

\u201cIn the determination of his civil rights and obligations … everyone is entitled to a …hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n

8.\u00a0\u00a0The Court observes that the general principles regarding the right to present one\u2019s case effectively before the court and to enjoy equality of arms with the opposing side, as guaranteed by Article\u00a06 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Steel and Morris v.\u00a0the United Kingdom, no.\u00a068416\/01, \u00a7\u00a7\u00a059\u201160, ECHR 2005-II).<\/p>\n

9.\u00a0\u00a0The 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.\u00a0Russia, no.\u00a015226\/05, \u00a7\u00a042, 1\u00a0March 2012, and Babunidze v.\u00a0Russia (dec.), no.\u00a03040\/03, 15\u00a0May 2007). Litigants must also take appropriate measures to ensure effective receipt of correspondence the domestic courts may send them (see Perihan and Mezopotamya Bas\u0131n Yay\u0131n A.\u015e.v.\u00a0Turkey, no.\u00a021377\/03, \u00a7\u00a038, 21\u00a0January 2014; Boyko v.\u00a0Ukraine (dec.), no.\u00a017382\/04, 23\u00a0October 2007; and Darnay v.\u00a0Hungary, no.\u00a036524\/97, Commission decision of 16\u00a0April 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\u2019 failure to assess the necessity to adjourn hearings pending the applicants\u2019 proper notification or to delve on the nature of their legal claims which could have rendered the applicants\u2019 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.\u00a02430\/06 and 3\u00a0others, \u00a7\u00a7\u00a041-42,31\u00a0May 2016).<\/p>\n

10.\u00a0\u00a0In the leading case of Gankin and Others v. Russia, nos. 2430\/06 and\u00a03 others, 31 May 2016, the Court already found a violation in respect of issues similar to those in the present case.<\/p>\n

11.\u00a0\u00a0Having 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\u2019 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\u00a06 of the Convention.<\/p>\n

12.\u00a0\u00a0These complaints are therefore admissible and disclose a breach of Article\u00a06 \u00a7 1 of the Convention.<\/p>\n

IV.\u00a0\u00a0APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n

13.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

14.\u00a0\u00a0Regard being had to the documents in its possession and to its case\u2011law, the Court considers it reasonable to award the sums indicated in the appended table.<\/p>\n

15.\u00a0\u00a0The Court 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Decides to join the applications;<\/p>\n

2.\u00a0\u00a0Rejects the Government\u2019s request to strike application no. 15646\/17 out of its list of cases under Article 37 of the Convention on the basis of the unilateral declaration which they submitted;<\/p>\n

3.\u00a0\u00a0Declares the applications admissible;<\/p>\n

4.\u00a0\u00a0Holds that these applications disclose a breach of Article\u00a06 \u00a7 1 of the Convention concerning the unfairness of the civil proceedings;<\/p>\n

5.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that 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 at the rate applicable at the date of settlement;<\/p>\n

(b)\u00a0\u00a0that 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.<\/p>\n

Done in English, and notified in writing on 21 February 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

LivTigerstedt\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 AlenaPol\u00e1\u010dkov\u00e1
\nActingDeputyRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

 <\/p>\n

APPENDIX<\/p>\n

List of applications raising complaints under Article 6 \u00a7 1 of the Convention<\/p>\n

(applicant\u2019s absence from civil proceedings)<\/p>\n\n\n\n\n\n\n
No.<\/strong><\/td>\nApplication no.<\/strong><\/p>\n

Date of introduction<\/strong><\/td>\n

Applicant\u2019s name<\/strong><\/p>\n

Date of birth<\/strong><\/td>\n

Nature of the dispute<\/strong><\/p>\n

Final decision<\/strong><\/td>\n

First-instance hearing date<\/strong><\/p>\n

Court<\/strong><\/td>\n

Appeal hearing date<\/strong><\/p>\n

Court<\/strong><\/td>\n

Amount awarded for non-pecuniary damage and costs and expenses per applicant<\/strong><\/p>\n

(in euros)[1]<\/a><\/strong><\/td>\n<\/tr>\n<\/thead>\n

1.<\/td>\n56859\/13<\/p>\n

31\/01\/2013<\/td>\n

Andrey Dmitriyevich Shepelev<\/strong><\/p>\n

03\/09\/1967<\/td>\n

I.\u00a0\u00a0Proceedings concerning the refusal of the request for annual leave<\/p>\n

 <\/p>\n

 <\/p>\n

 <\/p>\n

II.\u00a0Proceedings concerning non\u2011pecuniary damages for allegedly forged pay slip.<\/p>\n

 <\/p>\n

 <\/td>\n

05\/06\/2012<\/p>\n

 <\/p>\n

Moscow Garrison Military Court<\/p>\n

 <\/p>\n

 <\/p>\n

28\/11\/2011<\/p>\n

 <\/p>\n

Moscow Garrison Military Court<\/td>\n

23\/08\/2012<\/p>\n

 <\/p>\n

Moscow District Military Court<\/p>\n

 <\/p>\n

 <\/p>\n

02\/08\/2012<\/p>\n

 <\/p>\n

Moscow District Military Court.<\/td>\n

2,600<\/td>\n<\/tr>\n
2.<\/td>\n15646\/17<\/p>\n

04\/02\/2017<\/td>\n

Maksim Germanovich Bukin<\/strong><\/p>\n

30\/06\/1989<\/td>\n

Civil proceedings concerning alimony payments<\/td>\n19\/05\/2016<\/p>\n

 <\/p>\n

Justice of the Peace<\/td>\n

15\/08\/2016<\/p>\n

 <\/p>\n

Leninskiy District Court of Krasnodar<\/td>\n

2,000<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[1]<\/a>.\u00a0\u00a0Plus any tax that may be chargeable to the applicants.<\/p>\n