AS TO THE ADMISSIBILITY OF
Application no. 15034/02
by Vitaliy Nikolayevich LARIN
The European Court of Human Rights (First Section), sitting on 8 November 2007 as a Chamber composed of:
Mr L. Loucaides, President,
Mr A. Kovler,
Mrs E. Steiner,
Mr K. Hajiyev,
Mr D. Spielmann,
Mr S.E. Jebens,
Mr G. Malinverni, judges,
and Mr A. Wampach, Deputy Section Registrar,
Having regard to the above application lodged on 11 February 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Mr Vitaliy Nikolayevich Larin, is a Russian national who was born in 1971 and detained in the Kaliningrad Region. He was represented before the Court by Mrs O. Mikhailova, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr P. Laptev, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
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.
In June 2001 Mr O. lodged a civil claim against the applicant, seeking to recover his car from the applicant.
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 detained. In a cover letter the judge instructed the administration to transmit the statement of claim to the applicant and obtain his written observations in reply.
However, for some reasons the letter was not forwarded to the applicant until 13 July 2001.
In the meantime, on 11 July 2001, the Gusevskiy 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 about the date of the hearing but had failed to appear. Mr O. was present and made oral submissions to the court.
The applicant alleged that he had been notified about the hearing only on 16 July 2001. The following day he approached the Town Court seeking the re-opening of the proceedings and reversal of the judgment on the ground that the hearing had taken place in his absence. The applicant also requested legal aid and insisted on his personal presence at the hearing.
The court set a date for hearing the applicant’s request and summoned the applicant by a written notice (повестка). On 6 September 2001 the hearing took place in the applicant’s absence. 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 prison administration to escort him to the court.
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 about the hearing and his request for legal aid were left open in the court’s decision.
Following the Town Court’s refusal to re-open 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 re-opened.
On 9 October 2001 Judge G. informed the applicant about the date of the appeal hearing, again 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”.
On 10 October 2002 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 the proceedings ending with a default judgment should be reopened if two conditions were met: (a) the party did not appear at the hearing for valid reasons, but was unable to timely inform the court about these reasons, and (b) the party presented 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. The Regional Court finally established that the applicant’s submissions about the circumstances of the deal with the car could not have 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 was unable to timely inform the court about the valid reasons for his absence, can not 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 could not inform the court that his was serving a prison sentence.”
As a consequence, the Regional Court dismissed the appeal and upheld the default judgment.
B. Relevant domestic law
Article 213-6 of the Code of Civil Procedure of 1964, in force at the material time, provided that a default judgment could be challenged either by lodging of a request for the re-opening of the case with the first instance court, or by appealing directly to the court of appeal. Under Article 213-9 of the Code, the decision of the first instance court not to re-open the case was subject to an appeal as well.
The applicant complained under Article 6 of the Convention that the civil proceedings in the dispute with Mr O. had been unfair. In particular the applicant complained that he had not been notified about the hearing of 11 July 2001 until 16 July 2001, that the hearing before the Gusevskiy Town Court and the Kaliningrad Regional Court had been held in his absence, that he had not been provided with free legal assistance and had been unable to present his arguments, examine witnesses and put questions to the plaintiff.
The applicant complained that he was unable to present his civil case on the equitable basis with the opposite party, Mr O. Article 6 § 1, referred to by the applicant in this respect, reads as follows:
“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
The Government alleged that applicant’s right to a fair hearing of his civil case had not been breached. They admitted that the notification by the Gusevskiy Town Court had been dispatched to the applicant with a certain delay. The Government further referred to information received from the Supreme Court of the Russian Federation. According to that information, the delay might have been caused by the applicant’s transferral to another penitentiary institution. Further, the applicant was duly informed about all subsequent hearings, where he could have presented his written observations. The applicant’s request for reopening did not contain any information that could have led to the reopening of the case. As a result, he was not in any way placed in an unfavourable position vis-à-vis the plaintiff, Mr O.
The applicant maintained his initial complaint that the authorities had failed to notify him about the hearing, and that he had been thus unable to present his case, personally or through his representative.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits.
André Wampach Loukis
Deputy Registrar President
LARIN v. RUSSIA DECISION
LARIN v. RUSSIA DECISION