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FIRST
SECTION
CASE OF FOKIN v. RUSSIA
(Application
no. 75893/01)
JUDGMENT
STRASBOURG
18
September 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Fokin v. Russia,
The
European Court of Human Rights (First Section), sitting as a Chamber
composed of:
Christos Rozakis,
President,
Anatoly Kovler,
Elisabeth
Steiner,
Dean Spielmann,
Sverre Erik
Jebens,
Giorgio Malinverni,
George Nicolaou,
judges,
and Søren
Nielsen, Section
Registrar,
Having
deliberated in private on 28 August 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 75893/01) 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 Aleksandr Pavlovich
Fokin (“the applicant”), on 6 August 2001.
- The
Russian Government (“the Government”) were represented by
Mr P. Laptev, former Representative of the Russian Federation at the
European Court of Human Rights.
- On
15 December 2004 the Court decided to give notice of the application
to the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Insar, Republic of Mordoviya.
- On
20 April 1999 the applicant was dismissed from his job as a security
guard in a private company. He sued his former employer for
reinstatement, payment of wage arrears and compensation for
non-pecuniary damage.
- On
19 November 1999 the Insarskiy District Court of the Republic of
Mordoviya granted his claim in part and ordered his reinstatement in
the job. This judgment was reversed on appeal by the Supreme Court of
the Republic of Mordoviya, which remitted the case for fresh
examination by the first-instance court.
- On
9 January 2001 the Insarskiy District Court of the Republic of
Mordoviya found the applicant’s dismissal justified and
rejected the claims in full.
- The
applicant filed his statement of appeal on 18 January 2001. According
to him, in the following months he regularly enquired with the court
secretariat about the state of proceedings in his case but was
informed each time that the date of the appeal hearing had not yet
been fixed.
- According
to the Government, on 1 February 2001 the applicant was notified
about the pending appeal hearing in his case. The applicant contested
that he had received any notification.
- In
June 2001 the applicant went to the court in person and found out
that the appeal hearing in his case had already taken place on
13 February 2001. He learned that his claim had been dismissed
at the final instance.
- After
that, on 14 June 2001 the applicant received the appeal decision of
the Supreme Court of the Republic of Mordoviya, which, inter alia,
read as follows: “At the [appeal] hearing Mr Fokin maintained
his claims and asked the court to grant them”. The decision
also indicated that the other party to the proceedings was present at
the hearing and maintained its objections to the claim.
II. RELEVANT DOMESTIC LAW
- The
RSFSR Code of Civil Procedure of 11 June 1964 (in force at the
material time):
Article 106. Court summonses
“Parties and their representatives are to be
notified with court summonses of the date and place of a court
hearing or certain procedural actions ...
A summons is to be served on parties and their
representatives in such a way that they have enough time to appear at
a hearing and prepare their case ...
Where necessary, parties and their representatives ...
may be summonsed by a phone call or a telegram.”
Article 108. Service of summonses
“Summonses are to be sent by mail or by courier.
The time when a summons was served on an addressee is to be recorded
on the summons and its copy, which is to be returned to the court
...”
Article 109. Receipt of summonses
“A summons is to be served on a person against
his/her signature made on a copy of the summons, which is to be
returned to the court ...”
Article 144. Court hearing
“A civil case is to be heard in a court session
with mandatory notification to all parties to the case ...”
Article 157. Consequences of a party’s or
representative’s failure
to attend a court hearing
“If a party to the case fails to appear and there
is no evidence that the party was duly summonsed, the hearing is to
be adjourned ...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The
applicant complained that the examination of the appeal without
giving him an effective opportunity to attend the hearing had
violated his right to a fair hearing under Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...”
A. Admissibility
- The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government argued that the applicant had been duly notified of the
appeal hearing on 1 February 2001. They contended that the usual
practice in the town of Insara was to send notification by a court
courier, who
would report to the court President any difficulty in finding the
person concerned. The Government provided the Court with a copy of
the notification letter and contended that the case file did not
contain any report by the courier of a failure to deliver the
notification. In any event, the applicant’s presence had not
been necessary, as his written submissions before the appeal court
reiterated the arguments that had already been examined at the
first-instance hearing, at which he had presented them in person.
- The
applicant contested the Government’s allegations. He claimed
that he had not received the notification although the courier, had
there been one, would have had no trouble finding him at his address.
- The
Court notes that the notification letter allegedly delivered to the
applicant contains his correct address and states that the hearing
before the appeal instance was scheduled for 9 a.m. on 13 February
2001. However, the Government did not present any evidence, such as
an acknowledgment of receipt, showing that it had reached the
applicant, and that it had done so in good time. Having regard to the
provisions of the Russian law on service of courts summonses (see
paragraph 12 above), the Court considers that the Government should
have been in possession of such evidence, or at least reasons should
be given why the court courier could not have had the applicant sign
for the receipt of the letter. The failure on the Government’s
part to submit evidence without a satisfactory explanation gives rise
to the drawing of inferences as to the ill-foundedness of their
allegations. In these circumstances, the Court is not persuaded that
the domestic authorities had notified the applicant of the appeal
hearing in such a way as to provide him with an opportunity to attend
it and present his case.
- The
Court reiterates that it has frequently found violations of Article 6
§ 1 of the Convention in cases raising issues similar to the one
in the present case (see Yakovlev v. Russia, no. 72701/01, §§
19 et seq., 15 March 2005; Groshev v. Russia, no.
69889/01, §§ 27 et seq., 20 October 2005; Mokrushina v.
Russia, no. 23377/02, §§ 20 et seq., 5 October 2006;
and Prokopenko v. Russia, no. 8630/03, §§ 15 et
seq., 3 May 2007).
- Having
examined the materials submitted to it, the Court notes that the
Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
The Court has established that owing to the missing notification the
applicant was deprived of the opportunity to attend the appeal
hearing. The Court also notes that there is nothing in the appeal
judgment to suggest that the appeal court examined the question
whether the applicant had been duly summonsed and, if he had not,
whether the examination of the appeal should have been adjourned. On
the contrary, it erroneously stated in the decision that the
applicant was in fact present at the hearing.
- It
follows that there was a violation of the applicant’s right to
a fair hearing enshrined in Article 6 § 1 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Relying
on Articles 3, 14 and 17 of the Convention, the applicant complained
that his dismissal from the job constituted inhuman and degrading
treatment. Under Article 10 of the Convention he complained that he
had been unable to express his arguments at a public hearing before
the appeal instance. He also complained under Article 34 of the
Convention that the authorities’ failure to notify him of the
appeal proceedings interfered with his right of individual petition.
- Having
regard to all the material in its possession, and in so far as these
complaints fall within its competence ratione materiae, the
Court 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 this part of the application must be
rejected as being manifestly ill-founded, pursuant to Article 35 §§
3 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
- The
applicant did not submit a claim for just satisfaction within the
time-limit indicated by the Court. Accordingly, the Court considers
that there is no call to award him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the domestic
authorities’ failure to apprise the applicant of the appeal
hearing admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention.
Done in English, and notified in writing on 18 September 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Christos Rozakis
Registrar President
