{"id":13863,"date":"2021-02-10T08:04:09","date_gmt":"2021-02-10T08:04:09","guid":{"rendered":"https:\/\/laweuro.com\/?p=13863"},"modified":"2021-02-10T08:04:09","modified_gmt":"2021-02-10T08:04:09","slug":"case-of-shigalev-v-russia-european-court-of-human-rights-application-no-56911-14","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=13863","title":{"rendered":"CASE OF SHIGALEV v. RUSSIA (European Court of Human Rights) Application no. 56911\/14"},"content":{"rendered":"

PROCEDURE<\/strong>. The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on 16 July 2014.<\/p>\n

THIRD SECTION
\nCASE OF SHIGALEV v. RUSSIA<\/strong>
\n(Application no. 56911\/14)
\nJUDGMENT
\nSTRASBOURG
\n21 January 2021<\/p>\n

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

In the case of Shigalev v. Russia,<\/strong><\/p>\n

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

Darian Pavli, President,
\nDmitry Dedov,
\nPeeter Roosma, judges,
\nand Liv Tigerstedt, ActingDeputy Section Registrar,<\/p>\n

Having deliberated in private on 17 December 2020,<\/p>\n

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

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

1. The case originated in an application 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 16 July 2014.<\/p>\n

2. The Russian Government (\u201cthe\u00a0Government\u201d) were given notice of the application.<\/p>\n

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

3. The applicant\u2019s details and information relevant to the application are set out in the appended table.<\/p>\n

4. The applicant complained under Article\u00a06 \u00a7 1 of the Convention that he had been denied an opportunity to appear in person before the court in the civil proceedings to which he was party. He also raised other complaints under the provisions of the Convention.<\/p>\n

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

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

5. The Government submitted a unilateral declaration 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 cases (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\u00a0Tahsin\u00a0Acar v. Turkey (preliminary objections) [GC], no. 26307\/95, \u00a7\u00a075, ECHR 2003\u2011VI, and in particular for cases concerning fairness of court proceedings under Article 6 of the Convention, see Igranov and Others v. Russia, nos. 42399\/13 and 8 others, \u00a7\u00a7 24-27, 20 March 2018).<\/p>\n

II. ALLEGED VIOLATION OF ARTICLE\u00a06 \u00a7 1 OF THE CONVENTION<\/p>\n

6. The applicant complained principally that his right to a fair hearing had been breached on account of the domestic courts\u2019 refusal of his requests to appear in court. He relied on Article\u00a06 \u00a7 1 of the Convention, which reads as follows:<\/p>\n

Article\u00a06\u00a0\u00a7\u00a01<\/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

7. The Court reiterates that the applicant, detainee at the time of the events, was not afforded an opportunity to attend hearings in civil proceedings to which he was party. The details of those domestic proceedings are indicated in the appended table. The 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\u00a059-60, ECHR 2005-II). The Court\u2019s analysis of an alleged violation of the right to a fair trial where an incarcerated applicant complain about his absence from hearings in civil proceedings includes the following elements: examination of the manner in which domestic courts assessed the question whether the nature of the dispute required the applicant\u2019s personal presence and determination whether domestic courts put in place any procedural arrangements aiming at guaranteeing his effective participation in the proceedings (see Yevdokimov and Others v.\u00a0Russia, nos.\u00a027236\/05 and 10 others, \u00a7\u00a048, 16\u00a0February 2016).<\/p>\n

8. In the leading case of Yevdokimov and Others, cited above, the Court already found a violation in respect of issues similar to those in the present case.<\/p>\n

9. Having examined all the material submitted to it, 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 considers that in the instant case the domestic courts deprived the applicant of the opportunity to present his case effectively and failed to meet their obligation to ensure respect for the principle of a fair trial.<\/p>\n

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

III. REMAINING COMPLAINTS<\/p>\n

11. The applicant also complained under Articles 3 and 13 of the Convention about poor conditions of his detention in a pre-trial detention facility in Nizhniy Novgorod in 2014 and the lack of an effective remedy in this respect.<\/p>\n

12. With regard to these complaints, the applicant should avail himself of the new compensatory remedy introduced in the Russian Federation, which the Court declared effective in its recent decision of Shmelev and Others v. Russia ((dec.), nos.41743\/17 and 16 others, 17 March 2020).<\/p>\n

It follows that this part of the application must be rejected in accordance with Article\u00a035\u00a0\u00a7\u00a7\u00a01 and 4 of the Convention.<\/p>\n

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

13. Article 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. Regard being had to the documents in its possession and to its case\u2011law (see, in particular, Igranov and Others v. Russia, nos. 42933\/13 and 8 others, \u00a7 40, 20 March 2018), the Court considers it reasonable to award the sum indicated in the appended table.<\/p>\n

15. The 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. Rejects the Government\u2019s request to strike the application out of its list of cases under Article 37 \u00a7 1 of the Convention on the basis of the unilateral declaration which they submitted;<\/p>\n

2. Declares the complaints concerning the applicant\u2019s absence from civil proceedings admissible\u00a0and the remainder of the application inadmissible;<\/p>\n

3. Holds that there has been a breach of Article\u00a06 \u00a7 1 of the Convention concerning the applicant\u2019s absence from civil proceedings;<\/p>\n

4. Holds<\/p>\n

(a) that the respondent State is to pay the applicant, within three months, the amount 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) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount 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 January 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n

Liv Tigerstedt \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Darian Pavli<\/p>\n

Acting Deputy Registrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 President<\/p>\n

______________<\/p>\n

APPENDIX<\/strong>
\nApplication raising complaints under Article 6 \u00a7 1 of the Convention
\n(applicant\u2019s absence from civil proceedings)<\/p>\n\n\n\n\n\n
Application no.<\/strong><\/p>\n

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

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

Year of birth<\/strong><\/p>\n

\u00a0<\/strong><\/td>\n

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

\u00a0<\/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

56911\/14<\/p>\n

16\/07\/2014<\/td>\n

Ilya Aleksandrovich SHIGALEV<\/strong><\/p>\n

1973<\/td>\n

Tort action related to conditions of detention.<\/td>\n27\/12\/2013<\/p>\n

 <\/p>\n

Vadskiy District Court of the Nizhny Novgorod Region<\/td>\n

24\/03\/2014<\/p>\n

 <\/p>\n

Nizhniy Novgorod Regional Court<\/td>\n

1,500<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[1]<\/a> Plus any tax that may be chargeable to the applicant.<\/p>\n