CASE OF LARIN v. RUSSIA
Violation of Art. 6-1;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
6. The applicant was born in 1971 and lives in Slavyanovka village, Kaliningrad region. 7. On 6 April 2001 the Gusevskiy Town Court of the Kaliningrad Region convicted the applicant of theft, robbery and forgery and sentenced him to seven years and six months' imprisonment. This judgment was upheld by the Kaliningrad Regional Court on 5 June 2001. The courts found, inter alia, that the applicant had paid for a car, purchased from Mr O., with counterfeit United States dollars. The court further indicated that Mr O. might bring civil proceedings against the applicant. 8. In June 2001 Mr O. lodged a civil claim against the applicant, seeking to recover his car from the applicant. It was received by the Gusevskiy Town Court on 19 June 2001. 9. On 20 June 2001 Judge G. of the Gusevskiy Town Court forwarded a copy of the statement of claim to the administration of the detention centre where the applicant was being detained (remand prison IZ-39/1). In a cover letter, the judge instructed the administration to hand the statement of claim to the applicant and obtain his written observations in reply by 11 July 2001. 10. According to the Government, on 21 June 2001 the applicant was transferred to correctional colony OM-216/13 where he was to serve his sentence. That colony was situated in Slavyanovka village, Kaliningrad region. The documents sent by Judge G. to the applicant were forwarded to his new address in that colony. The colony received them on 13 July 2001. 11. On 11 July 2001, the Gusevskiy Town Court examined the civil claim in the applicant's absence. On the same day the Town Court, by a default judgment, ordered the applicant to return the car to Mr O. The court indicated, inter alia, that the defendant (the applicant) had been properly notified of the date of the hearing but had failed to appear. Mr O. was present and made oral submissions to the court. 12. The applicant alleged that he had been notified of the hearing only on 16 July 2001. The following day he had approached the Town Court seeking the reopening of the proceedings and reversal of the judgment on the ground that the hearing had taken place in his absence. The applicant had also requested legal aid and insisted on his personal presence at the hearing. On 19 July 2001 his letters were dispatched to the Town Court by the administration of the correctional colony. They were received by the court on 25 July 2001. 13. On 17 August 2001 the court set a date for hearing the applicant's request and informed the applicant thereof. The Government maintained that the notification had been received by the applicant on 28 August 2001. 14. On 31 August 2001 the applicant wrote a letter to the Town Court asking them to examine the case in his presence and provide him with a lawyer. That letter was dispatched to the court by the head of the correctional colony. His cover-letter was dated 4 September 2001; however, according to the postal stamp, the applicant's letter was actually posted on 7 September 2001. 15. On 6 September 2001 the hearing took place in the applicant's absence. Mr. O was present and made oral submissions. The applicant alleged that he had been unable to attend the hearing for want of a court's “conveyance request” (заявка на этапирование) ordering the correctional colony administration to escort him to the court. 16. By a decision of 6 September 2001 the Gusevskiy District Court refused to re-examine the case. The court found that the applicant had not presented any new evidence that might affect the court's findings of 11 July 2001. The applicant's argument that he had not been properly notified of the hearing and his request for legal aid were left open in the court's decision. The next day, that decision was sent to the applicant. 17. Following the Town Court's refusal to reopen the proceedings, the applicant appealed to the Regional Court, complaining about the first-instance court's decisions of 11 July and 6 September 2001. He insisted that his personal presence at the hearing of 11 July 2001 had been necessary to prove that the deal with Mr. O.'s car was legal and valid, and that the proceedings should therefore be reopened. He also asked the Regional Court to order his conveyance from the correctional colony in order to take part in the hearing. 18. On 9 October 2001 Judge G. informed the applicant of the date of the appeal hearing, by way of a simple notice. The judge indicated that the applicant's personal presence at the hearing was not mandatory, and that bringing him to the court hearing was “inopportune”. 19. On 10 October 2001 the Kaliningrad Regional Court examined the appeal in absentia and upheld the judgment of 11 July and the decision of 6 September 2001. The court indicated that, under Article 213-11, proceedings ending with a default judgment should only be reopened if two conditions were met: (a) the absent party had been unable, with good reason, to attend the hearing or to inform the court in a timely fashion thereof, and (b) the absent party produced evidence that might affect the conclusions of the default judgment. The court further indicated that the default judgment of 11 July 2001 had been fully based on the courts' findings in the criminal case against the applicant. Lastly, the Regional Court established that the applicant's submissions about the circumstances of the deal with the car would not have had any impact on the findings of the default judgment. In conclusion the court stated as follows: “The argument that [the applicant's] absence in court was excusable because he had been unable to inform the court in a timely fashion of the valid reasons for his absence cannot be accepted as a sole ground for quashing the judgment since the default judgment may only be quashed if both of the above-mentioned conditions have been met. Furthermore, [the applicant] does not explain why he was not able to inform the court that he was serving a prison sentence.” 20. As a consequence, the Regional Court dismissed the appeal and upheld the default judgment. 21. Parties to civil proceedings could appear before a court in person or act through a representative (Article 43 of the Code of Civil Procedure in force until 31 January 2003 (“the old CCP”). 22. Article 106 of the old CCP provided that a summons was to be served on the parties and their representatives in such a way that they would have enough time to appear at the hearing and prepare their case. Where necessary, the parties could be summoned by a telephone call or a telegram. Pursuant to Articles 108 and 109, court summonses were to be sent by post or by courier and served on the person who was a party to the case. The party was to sign the second copy of a summons which was to be returned to the court. If a summons could not be served on a party, it was to be served on an adult family member who lived with the party. If a party was absent, the person who delivered the summons was to note on the second copy of the summons where the party could be found (Article 109). 23. Article 144 required that civil cases be heard in a court session with mandatory notification of the case to all parties. Article 151 provided that court sessions started with the court secretary informing the judge of the parties who had received summons but had failed to appear. The secretary had to inform the judge of the reasons for their absence. Pursuant to Article 157, if a party to the case failed to appear and there was no evidence that the party had been duly summoned, the hearing was to be adjourned. 24. Article 213-1 provided that if a defendant was duly notified of the hearing but failed to appear, the court might proceed with the case, provided that the plaintiff did not object. Article 213-6 provided that a default judgment could be challenged either by lodging a request for the reopening of the case with the first-instance court, or by appealing directly to the court of appeal. Under Article 213-9, a decision of the first-instance court not to reopen the case was subject to an appeal as well. Under Article 213-11, the reopening of a case was possible if two conditions were met: (a) the absent party had been unable, with good reason, to attend the hearing or to inform the court in a timely fashion thereof, and (b) the absent party produced evidence which might have affected the outcome of the case. 25. The Penitentiary Code provides that convicted persons may be transferred from a correctional colony to an investigation unit if their participation is required as witnesses, victims or suspects in connection with certain investigative measures (Article 77.1). The Code does not mention the possibility for convicted persons to take part in civil proceedings, whether as plaintiffs or defendants. 26. The USSR Advocates Act (Law of 30 November 1979), together with the RSFSR Rules on Advocates (Law of 20 November 1980), in force until 1 July 2002, provided that free legal assistance in civil cases could be provided to certain categories of litigants and for certain categories of disputes such as labour disputes, disputes concerning disability pensions, work-related accidents, etc. (sections 11 and 22 respectively). Disputes involving prisoners similar to the one at the heart of the present case were not mentioned amongst them. However, the law stipulated that free legal assistance could be provided for litigants who had no means to pay for it, on the initiative of the advocate's office, the investigator or the court (section 11(3) of the USSR Advocates Act). If free legal assistance was granted by the court, the lawyers' fees had to be paid by the State.