THIRD SECTION

CASE OF ARTEMENKO v. RUSSIA

(Application no. 24948/05)

JUDGMENT

STRASBOURG

22 November 2016

This judgment is final but it may be subject to editorial revision.
In the case of Artemenko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
	Helena Jäderblom, President,
	Dmitry Dedov,
	Branko Lubarda, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having deliberated in private on 3 November 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 24948/05) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Eduard Rostislavovich Artemenko (“the applicant”), on 3 June 2005.
2.  The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3.  The applicant complained, in particular, that his detention from 2 to 26 April 2004 had been unlawful and that the domestic courts had refused his compensation claim. He also complained that the domestic courts had failed to ensure his effective participation in the proceedings for compensation.
4.  On 18 February 2009 and on 12 May 2014 the application was communicated to the Government.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1966 and lives in Roslavl, the Smolensk Region.
Section 1.01	A.  Criminal proceedings against the applicant
6.  On 15 June 2003 the applicant was arrested on suspicion of unintentional manslaughter. On 30 September 2003 he was committed to stand trial before the Leninskiy District Court of Smolensk. On 10 October 2003 the District Court fixed the first trial hearing and ordered that the applicant should remain in custody.
7.  On 26 April 2004 the Leninskiy District Court found the applicant guilty as charged and sentenced him to twelve years’ imprisonment. The judgment became final on 10 July 2004 when the Smolensk Regional Court upheld it on appeal.
Section 1.02	B.  Proceedings for compensation for non-pecuniary damage
8.  In February 2005 the applicant lodged an action with the Leninskiy District Court, arguing that his detention from 2 to 26 April 2004 had been unlawful as there had been no legal order authorizing his detention during that period. He sought compensation for non-pecuniary damage.
9.  On 23 September 2005 the Leninskiy District Court, in the presence of a defendant’s representative, dismissed the applicant’s action, finding that the applicant’s conviction precluded him from claiming compensation in respect of non-pecuniary damages. Its operative part reads as follows:
“Given that Mr Artemenko was found guilty of the crime in relation to which he had been detained since 17 June 2003, he did not acquire the right to exoneration and to compensation in respect of non-pecuniary damage.
Therefore, there exist no grounds for satisfying Mr Artemenko’s claim for compensation in respect of his unlawful detention pending trial.”
10.  The applicant appealed, complaining, inter alia, that the District Court had refused to secure his attendance and had not provided him with copies of materials presented by the defendants. He also maintained his initial claim for compensation.
11.  On 29 November 2005 the Smolensk Regional Court upheld the judgment of 23 September 2005 in the applicant’s absence.
Article II.	II.  RELEVANT DOMESTIC LAW AND PRACTICE
12.  Domestic provisions governing participation of detainees in civil proceedings are described in Yevdokimov and Others v. Russia, (nos. 27236/05 and 10 others, §§ 9-15, 16 February 2016).
THE LAW
Article III.	I.  THE GOVERNMENT’S REQUEST TO STRIKE OUT A PART OF THE APPLICATION UNDER ARTICLE 37 OF THE CONVENTION
13.  On 26 November 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised under Article 5 of the Convention. They acknowledged that the applicant had been detained unlawfully from 2 to 26 April 2004 and that there was a violation of Article 5 § 5 of the Convention in that the applicant had not obtained compensation for his unlawful detention. They stated their readiness to pay the applicant a sum of 6,500 euros (EUR) as just satisfaction covering any pecuniary and non-pecuniary damage, as well as costs and expenses. The sum was payable free of any applicable taxes within three months of the date of notification of the decision taken by the Court under Article 37 § 1 of the Convention. In the event of failure to pay within that period, the Government undertook to pay simple interest on the sum from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The Government requested the Court to strike it out of the list of cases in accordance with Article 37 of the Convention.
14.  The applicant did not comment on the terms of the unilateral declaration.
15.  The Court reiterates that Article 37 § 1 (c) of the Convention enables it to strike a case out of its list if:
“... for any other reason established by the Court, it is no longer justified to continue the examination of the application.”
16.  It also points out that, in certain circumstances, it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued.
17.  To this end, the Court will examine the declaration carefully in the light of the principles established in its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
18.  The Court is satisfied that the Government explicitly acknowledged that the applicant’s detention from 2 to 26 April 2004 was in breach of Article 5 § 1 of the Convention, and that the failure to secure his right to compensation violated Article 5 § 5 of the Convention. As to the intended redress to be provided to the applicant, the proposed sum does not appear to be unreasonable in comparison with the awards made by the Court in similar cases (see Cocchiarella v. Italy [GC], no. 64886/01, § 105, ECHR 2006‑V, and case-law cited in paragraph 19 below). The Government have committed themselves to effecting the payment of that sum within three months of the Court’s decision, with default interest to be payable in case of delay of settlement.
19.   The Court further notes that it has found a violation of Article 5 § 1 of the Convention in many Russian cases where the applicant’s detention was not covered by any legal order (see Yevgeniy Bogdanov v. Russia, no. 22405/04, § 116, 26 February 2015, and Yudayev v. Russia, no. 40258/03, § 56, 15 January 2009). Similarly, the Russian authorities’ failure to grant compensation for unlawful detention gave rise to a finding of a violation of Article 5 § 5 of the Convention on many occasions (see Abashev v. Russia, no. 9096/09, §§ 39-43, 27 June 2013, and Makhmudov v. Russia, no. 35082/04, §§ 99-105, 26 July 2007). Accordingly, the complaints raised by the applicant are based on clear and extensive Court’s case-law.
20.  The Court is satisfied that respect for human rights as defined in the Convention (Article 37 § 1 in fine) does not require it to continue the examination of this part of the application. The Court’s decision is without prejudice to any decision it might take to restore the application to its list of cases, pursuant to Article 37 § 2 of the Convention, should the Government fail to comply with the terms of their unilateral declaration (see Aleksentseva and 28 Others v. Russia (dec.), nos. 75025/01 et al., 23 March 2006, and Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
21.  In view of the above, it is appropriate to strike this part of the application out of the list in accordance with Article 37 § 1 (c) of the Convention.
Article IV.	II.  ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
22.  The applicant also complained that his right to a fair hearing under Article 6 § 1 of the Convention had been breached on account of the domestic courts’ refusal to ensure his effective participation in the appeal hearing of 29 November 2005. Article 6 § 1 of the Convention reads in the relevant part as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair and public ... hearing ... by [a] ... tribunal ...”
Section 4.01	A.  Admissibility
23.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 4.02	B.  Merits
24.  The Government submitted that the applicant had been duly notified of the hearing dates and had received copies of all procedural documents. The Code on the Execution of Sentences does not provide for escorting detainees to court hearings in civil proceedings, and the contrary would be inconsistent with the very concept of custodial restraint. The applicant maintained his complaint.
25.  The Court reiterates that when one of the litigants is in custody and unable to attend the hearings independent of his or her wishes, domestic courts must verify, prior to embarking on the examination of the merits, whether the nature of the case is such as to require the incarcerated litigant’s personal testimony and whether he or she has expressed a wish to attend. The reasoned decision must be communicated to the litigant sufficiently in advance so that he or she may dispose of adequate time for deciding on a further course of action for the defence of his or her rights. Finally, if the courts decide that the litigant’s presence is not necessary, they must consider putting in place procedural arrangements aimed at guaranteeing his or her effective participation in the proceedings (see Yevdokimov and Others, cited above, § 33-48).
26.  The applicant in the present case was absent from the hearings before the appeal court. The Court notes, as it did in Yevdokimov and Others, that the appeal judgment discloses no consideration of the issue whether the nature of the dispute was such as to require the applicant’s attendance. Nor did the appeal court consider any procedural arrangements aimed at ensuring the applicant’s right to effective participation in the appeal hearing. Contrary to the Government’s claim that the applicant could have effectively presented his case to the court because he had been duly informed of the hearings, merely informing the applicant of the appeal hearing date was clearly insufficient in a situation where the current state of the domestic law prevented him from attending. Nor can the Court accept the Government’s argument about the absence of any legal norm making the applicant’s presence mandatory, for the applicant cannot be expected to bear the burden of the legislator’s failure to provide for the special situation of incarcerated parties to civil proceedings (see Yevdokimov and Others, cited above, § 50, and Gryaznov v. Russia, no. 19673/03, § 50, 12 June 2012). In sum, the Court does not see any argument in the Government’s submissions that might warrant a conclusion different from that reached in Yevdokimov and Others.
27.  Having regard to its previous case-law and the circumstances of the present case, the Court finds that by denying the applicant the opportunity to be present at the appeal hearing in civil proceedings to which he was a party on the sole grounds of deficiencies in the domestic law, and by failing to consider appropriate procedural arrangements enabling the applicant to be heard, the domestic courts failed to meet their obligation to ensure respect for the principle of a fair trial enshrined in Article 6 of the Convention.
28.  There has accordingly been a violation of Article 6 § 1 of the Convention.
Article V.	III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
29.  The Court has also examined the other complaints submitted by the applicant. However, having regard to all the material in its possession and in so far as those complaints fall within the Court’s competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that these parts of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
Article VI.	IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
30.  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.”
Section 6.01	A.  Damage
31.  The applicant claimed 12,600 euros (EUR) in respect of non‑pecuniary and pecuniary damage. The Government considered his claim to be excessive.
32.  The Court does not discern any causal link between the violation found under Article 6 of the Convention and the pecuniary damage alleged by the applicant; it therefore rejects this claim. On the other hand, it awards EUR 1,500 in respect of non-pecuniary damage to the applicant, plus any tax that may be chargeable.
33.  The Court holds that when an applicant has suffered an infringement of his right to a fair hearing guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position in which he would have been had the requirements of that provision not been disregarded. The most appropriate form of redress would, in principle, be the possibility for the applicant to request a reopening of the proceedings. In a recent case the Court laid down the principles applicable to the reopening of terminated civil proceedings on the basis of a judgment by the Court (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 57-58, ECHR 2015).
34.  In this connection, the Court reiterates that in Russia a finding by the Court of a violation of the Convention or its Protocols is a ground for reopening civil proceedings, under Article 392 §§ 2 (2) and 4 (4) of the Code of Civil Procedure, and for reviewing the domestic judgments in the light of the Convention principles established by the Court (see Davydov v. Russia, no. 18967/07, §§ 10-15, 30 October 2014).
Section 6.02	B.  Costs and expenses
35.  The applicant also claimed costs and expenses in an unspecified amount. The Government did not submit comments on this claim.
36.  According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court notes, regard being had to the documents in its possession and the above criteria, that the applicant failed to specify and substantiate his claim for costs and expenses, and therefore no award can be made under this head (see Goriany v. Austria, no. 31356/04, § 39, 10 December 2009).
Section 6.03	C.  Default interest
37.  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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Decides having regard to the terms of the Government’s declaration, and the modalities for ensuring compliance with the undertakings referred to therein, to strike the part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it concerns the complaints under Article 5 §§ 1 and 5 of the Convention about the applicant’s detention from 2 to 26 April 2004 and the right to compensation;

2.  Declares the complaint concerning the unfairness of the civil proceedings admissible and the remainder of the application inadmissible;

3.  Holds that there has been a violation of Article 6 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 November 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Fatoş Aracı	Helena Jäderblom
	Deputy Registrar	President