THIRD SECTION
\nCASE OF GAZIZOV v. RUSSIA
\n(Application no. 30906\/06)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n24 July 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Gazizov v. 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, Having deliberated in private on 3 July 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no.\u00a030906\/06) against the Russian Federation lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Russian national, Mr\u00a0RustemRifgatovichGazizov (\u201cthe applicant\u201d), on 4\u00a0July 2006.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms\u00a0Y.\u00a0Gazizova, a lawyer practising in NaberezhnyyeChelny. The Russian Government (\u201cthe Government\u201d) were represented by their Agent, Mr\u00a0M.\u00a0Galperin, the Representative of the Russian Federation to the European Court of Human Rights.<\/p>\n 3.\u00a0\u00a0On 16\u00a0March 2017 the complaints concerning the applicant\u2019s absence from criminal proceedings and the failure to serve the other parties\u2019 written submissions on him, as well as the complaint concerning his delayed notification of the first-instance hearing in civil proceedings were communicated to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054 \u00a7\u00a03 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1978 and lives in NaberezhnyyeChelny.<\/p>\n A.\u00a0\u00a0Criminal proceedings<\/strong><\/p>\n 5.\u00a0\u00a0The applicant was a police officer. On 1\u00a0November 2004 he was arrested on suspicion of having extracted a bribe.<\/p>\n 6.\u00a0\u00a0On 10\u00a0November 2005 the Supreme Court of the Tatarstan Republicconvicted the applicant and sentenced himto imprisonment.He stayed under theobligation not to leave his place of residence in NaberezhnyyeChelny until the conviction became final. He could leave his place of residence only upon the summons from the investigator or the court.<\/p>\n 7.\u00a0\u00a0Several parties to the criminal proceedings, including the applicant, appealed against the conviction. The case was forwarded to the Russian Supreme Court in Moscow, 1,000\u00a0km away from NaberezhnyyeChelny. The applicant never received any summons to the appeal hearing due to the Supreme Court\u2019s mistake in the postal code. Neither did he receive copies of the statements of appeal filed by the prosecutor, by the co-accused, G., and the latter\u2019s lawyer.<\/p>\n 8.\u00a0\u00a0On 28\u00a0February 2006 the conviction was upheld by the Russian Supreme Court. The prosecutor and G.\u2019s lawyer attended the appeal hearing. Neither the applicant nor his lawyer was present.<\/p>\n B.\u00a0\u00a0Civil proceedings<\/strong><\/p>\n 9.\u00a0\u00a0In 2011 the applicant lodged a compensation claim for non-pecuniary damages caused by poor conditions of detention. In the text of his claim the applicant explicitly askedthe court to consider the claim in his absence. On 14\u00a0April 2011 the Bugulminskiy Town Court of the Tatarstan Republic dismissed his claim. The applicant received the notification of the time and date of the hearing after the hearing had actually taken place.<\/p>\n 10.\u00a0\u00a0The first-instance judgment was upheld on 4\u00a0July 2011 by the Supreme Court of the Tatarstan Republic.The applicant had been notified of that hearing on 29\u00a0June 2011.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 11.\u00a0\u00a0For the legal provisions, in force at the material time, regarding the criminal proceedings before an appeal court see Kozlitin v.\u00a0Russia (no.\u00a017092\/04, \u00a7\u00a7\u00a024-29, 14\u00a0November 2013).<\/p>\n 12.\u00a0\u00a0For the legal provisions, in force at the material time, regarding civil proceedingssee Gankin and Others v.\u00a0Russia (nos.\u00a02430\/06 and 3\u00a0others, \u00a7\u00a7\u00a029-32, 31\u00a0May 2016).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION WITH REGARD TO THE CRIMINAL PROCEEDINGS<\/p>\n 13.\u00a0\u00a0The applicant complained that he and his lawyer were absent from the appeal hearing on 28\u00a0February 2006 and that the other parties\u2019 appeal statements had not been served on him before that hearing.The applicant referred to Article\u00a06 of the Convention, which, as far as relevant, reads as follows:<\/p>\n \u201c1.\u00a0\u00a0In the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.<\/p>\n 3.\u00a0\u00a0Everyone charged with a criminal offence has the following minimum rights:<\/p>\n …<\/p>\n (b)\u00a0\u00a0to have adequate time and facilities for the preparation of his defence;<\/p>\n (c)\u00a0\u00a0to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 14.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article\u00a035 \u00a7\u00a03 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 15.\u00a0\u00a0The applicant stated that due to the court\u2019s mistake in the postal code he had not received the summons to the hearings before the Russian Supreme Court. He also stated that the other parties\u2019 statements of appeal had been sent to all the parties to the proceedings, except him.<\/p>\n 16.\u00a0\u00a0The Government argued that the notifications had been sent to the applicant\u2019s place of residence and registration. Moreover, as the applicant had not been deprived of liberty till the conviction became final, he could fully examine the case-file, including the other parties\u2019 statements of appeal, and could appear before the appeal court.<\/p>\n 17.\u00a0\u00a0The Court will first consider the complaint about the applicant\u2019s and his lawyer\u2019s absence before the appeal court.<\/p>\n 18.\u00a0\u00a0The Court reiterates that the right of an accused to participate in person in the trial is a fundamental element of a fair trial (see Novoselov v.\u00a0Russia (dec.), no.\u00a066460\/01, 8\u00a0July 2014, with further references). However, the personal attendance of the defendant does not take on the same crucial significance for an appeal hearing as it does for the trial hearing even where an appellate court has full jurisdiction to review the case on questions both of fact and law (see Hermi v.\u00a0Italy [GC], no. 18114\/02, \u00a7\u00a060, ECHR 2006\u2011XII, and Vanyan v.\u00a0Russia, no.\u00a053203\/99, \u00a7\u00a060, 15\u00a0December 2005).<\/p>\n 19.\u00a0\u00a0The Court observes that the Russian Supreme Court, acting as an appeal court, had to exercise the full review of the case. Itactually re\u2011assessed the facts, evidence, trial court\u2019s legal conclusions, as well as the applicant\u2019s personality while determining his sentence.The prosecutor was present and insisted on upholding the conviction. Neither the applicant nor his lawyer attended.<\/p>\n 20.\u00a0\u00a0The parties did not dispute that the applicant could only leave his place of residence upon the summons from the investigator or the court, as a restraint measure not to leave the town had been imposed on him by the trial court. The appeal hearings were to be held in Moscow, about 1,000\u00a0km away from the applicant\u2019s place of residence in NaberezhnyyeChelny. The Government failed to substantiate their argument that the summons from the appeal court had been sent to the applicant\u2019s correct address. For the above reasons the Court rejects the Government\u2019s arguments that the applicant had been duly summoned and had been given an opportunity to attend the appeal hearing.<\/p>\n 21.\u00a0\u00a0Neither of the parties has submitted any information on the notification of the applicant\u2019s lawyer about the appeal hearing. The Court, nevertheless, notes that the appeal court did not look into the matter of the applicant\u2019s and the lawyer\u2019s notification and the reasons for their absence.<\/p>\n 22.\u00a0\u00a0For the above reasons the Court comes to the conclusion that the applicant had not been afforded an effective opportunity, either in person or through legal representation, to attend the appeal hearing and to defend his interests in the appeal court, while the prosecutor and the other party\u2019s lawyer attended and made their case. Accordingly,there has been a violation of Article\u00a06 \u00a7\u00a7\u00a01 and 3 (c) of the Convention.<\/p>\n 23.\u00a0\u00a0Having regard to the above findings the Court considers that it is not necessary to examine separately the applicant\u2019s complaint about the failure to serve the other parties\u2019 appeal statements on him.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE\u00a06 OF THE CONVENTION WITH REGARD TO THE CIVIL PROCEEDINGS<\/p>\n 24.\u00a0\u00a0The applicant complained about the delayed notification of the hearing before the first-instance court in the civil proceedings. He relied on Article\u00a06\u00a7\u00a01 of the Convention, which, as far as relevant, reads as follows:<\/p>\n \u201cIn the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n 25.\u00a0\u00a0The Government contested the arguments and submitted a copy of a notification signed by the applicant on 23\u00a0March 2011. They also insisted that the applicant had requested the civil case to be heard in his absence.<\/p>\n 26.\u00a0\u00a0The general principles and the Court\u2019s findings concerning defective notifications of parties to civil proceedings have been summarised in Gankin and Others(cited above). In that case none of the applicants had waived his or her right to be present at the appeal hearings. Due to the defective notification the applicants were unaware of the date of the appeal hearings in their cases. The Court found a violation of Article\u00a06 \u00a7\u00a01 of the Convention.<\/p>\n 27.\u00a0\u00a0In the present case the applicant had unequivocally waived his right to be present at the hearings before the courts of both instances. Neither the letter nor the spirit of Article\u00a06 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, such a waiver must, if it is to be effective for Convention purposes, be established in an unequivocal manner, must not run counter to any important public interest and must be attended by minimum safeguards commensurate with its importance (see Sejdovic v.\u00a0Italy [GC], no.\u00a056581\/00, \u00a7\u00a086, ECHR 2006-II). For a waiver to be effective it must be shown that the applicant could reasonably have foreseen the consequences of his conduct (see Sejdovic, cited above, \u00a7\u00a087;Idalov v.\u00a0Russia [GC], no.\u00a05826\/03, \u00a7\u00a0173, 22\u00a0May 2012; and Jones v.\u00a0the United Kingdom (dec.), no.\u00a030900\/02, 9\u00a0September 2003). Turning to the facts of the present case, the Court finds no reason to doubt that the waiver have been done by the applicant voluntarily, knowingly and intelligently.<\/p>\n 28.\u00a0\u00a0The Court does not lose sight of the fact that despite the waiver, such as the one made by the applicant in the present case,the Russian law imposed on courts an obligation to notify a party of the hearings. Even assuming that the first-instance court had failed to properly comply with that requirement in the applicant\u2019s case, it did not overstep the boundaries of the waiver when it subsequently carried out the examination of the case in his absence and on the basis of his written submissions.As to the hearing before the appeal court, the Court notes, and it has not been contested by the parties, that the applicant was duly and timely notified thereof, but did not express any wish to take part in the appeal hearing in person, thus once again having confirmed his initial wish to have the case examined without his personal attendance. He effectively presented his case before the appeal court through written submissions. These facts have not been contested by the parties.<\/p>\n 29.\u00a0\u00a0For the above reasons the Court comes to the conclusion that the defective notification of the hearing before the first-instance court has not prejudiced the overall fairness of the civil proceedings. It follows that there is no appearance of a violation of Article\u00a06 \u00a7\u00a01 of the Convention, and that this part of the application is accordingly manifestly ill-founded and must be rejected, in accordance with Article\u00a035 \u00a7\u00a7\u00a03 (a) and 4 of the Convention.<\/p>\n III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 30.\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 A.\u00a0\u00a0Damage<\/strong><\/p>\n 31.\u00a0\u00a0The applicant claimed 20,000\u00a0euros in respect of non-pecuniary damage.<\/p>\n 32.\u00a0\u00a0The Government argued that the applicant\u2019s claims were excessive, unreasonable and did not correspond to the Court\u2019s case-law.<\/p>\n 33.\u00a0\u00a0The Court concludes that the reopening of the proceedings is the most appropriate form of redress for the established violation of the applicant\u2019s rights, should he request it (see Zadumov v.\u00a0Russia, no.\u00a02257\/12, \u00a7\u00a7\u00a080-81, 12\u00a0December 2017, with further references, and Shvedov and Others v.\u00a0Russia [Committee], nos.\u00a07148\/06 and 16\u00a0others, \u00a7\u00a029, 27\u00a0February 2018). Therefore, the finding of a violation constitutes sufficient just satisfaction in the present case.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 34.\u00a0\u00a0The applicant claimed 20,000\u00a0Russian roubles (RUB) for the costs and expenses incurred before the domestic courts and RUB 100,000 for those incurred before the Court.<\/p>\n 35.\u00a0\u00a0The Government argued that the applicant had failed to prove that those expenses had been actually and necessarily incurred and had been reasonable as to quantum.<\/p>\n 36.\u00a0\u00a0Regard being had to the documents in its possession and to its case\u2011law, the Court rejects the claim for costs and expenses as unsubstantiated.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe complaints related to the criminal proceedings against the applicant admissible and the remainder of his application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article\u00a06 \u00a7\u00a7\u00a01 and 3 (c) of the Convention with regard to the applicant\u2019s absence from the appeal court in the criminal proceedings;<\/p>\n 3.\u00a0\u00a0Holdsthat there is no need to examine the complaint under Article\u00a06 of the Convention about the failure to serve the other parties\u2019 appeal statements on the applicant in the criminal proceedings;<\/p>\n 4.\u00a0\u00a0Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;<\/p>\n 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 24 July 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Fato\u015f Arac\u0131\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Alena Pol\u00e1\u010dkov\u00e1
\nDmitry Dedov,
\nJolien Schukking, judges,
\nand Fato\u015f Arac\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n