EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF GROSHEV v. RUSSIA
(Application No. 69889/01)
JUDGMENT <*>
(Strasbourg, 20.X.2005)
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<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
In the case of Groshev v. Russia,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Mr C.L. Rozakis, President,
Mr L. Loucaides,
Mrs F. Tulkens,
Mr P. Lorenzen,
Mrs {N. Vajic} <*>,
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<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Mrs S. Botoucharova,
Mr A. Kovler, judges,
and Mr S. Nielsen, Section Registrar,
Having deliberated in private on 29 September 2005,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 69889/01) 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 Yuriy
Vasilyevich Groshev, on 31 January 2001.
2. The Russian Government ("the Government") were represented
by their Agent, Mr P. Laptev, Representative of the Russian
Federation at the European Court of Human Rights.
3. On 27 September 2004 the Court decided to communicate the
application to the Government. Under the provisions of Article 29
з 3 of the Convention, it decided to examine the merits of the
application at the same time as its admissibility.
4. The Government objected to the joint examination of the
admissibility and merits of the application. The Court examined
their objection and dismissed it.
THE FACTS
I. The circumstances of the case
5. The applicant was born in 1941 and lives in Klimovsk in the
Moscow Region.
6. In February 1999 the applicant brought an action against the
Moscow Region health department, seeking to declare invalid some
data in his medical records. The disputed information related to
the applicant's degree of disability and affected his pension
entitlement and fitness for work.
7. On 1 September 1999 the Presnenskiy District Court of Moscow
dismissed the applicant's claims.
8. On 10 September 1999 the applicant filed an appeal. The
appeal hearing was listed for 28 March 2000.
9. On 20 March 2000 the applicant was admitted to a hospital
for inpatient treatment. On 27 March 2000 his acquaintance asked
the Moscow City Court, by a telegram sent on the applicant's
behalf, for an adjournment of the hearing. The Government denied
that the telegram had been sent.
10. On 28 March 2000 the Moscow City Court adjourned the appeal
hearing until 4 April 2000. The Government submitted that the
hearing had been adjourned because there had been no information
that the applicant had been duly summoned.
11. On 30 March 2000 the Moscow City Court mailed to the
applicant a new summons for the hearing listed for 4 April.
According to the postmark, it reached the applicant's address on 5
April.
12. On 4 April 2000 the Moscow City Court examined the appeal
and rejected it. Neither party was present.
13. On 7 April 2000 the applicant left the hospital.
14. On 31 August 2000 the Moscow City Court informed the
applicant that his appeal had been rejected on 4 April 2000.
II. Relevant domestic law
15. The RSFSR Code of Civil Procedure of 11 June 1964 (in force
at the material time) 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 phone
call or a telegram (Article 106).
16. Court summonses were to be sent by mail or by courier and
served on the person who was a party to the case (Articles 108 and
109).
17. If a party to the case failed to appear and there was no
evidence that the party had been duly summoned, the hearing had to
be adjourned (Article 299).
18. The appeal court delivered its judgment in accordance with
the rules established for the first-instance courts (Article 304).
The court was required to announce the operative part of its
decision in the final hearing and to indicate the date when the
parties would be able to take cognisance of the entire text of the
judgment (Article 203).
THE LAW
I. Alleged violation of Article 6 з 1 of the Convention
19. The applicant complained that the examination of the appeal
without giving him an effective opportunity to attend violated his
right to a fair hearing under Article 6 з 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
20. The Government submitted that the applicant had failed to
introduce the application before 4 October 2000, that is within
six months after the final judgment had been made. Even assuming
that he only took cognisance of the City Court's decision on 31
August 2000, he still had more than a month to lodge the
application. In any event, the failure to take cognisance of the
City Court's decision is entirely attributable to the applicant's
own conduct. He left the hospital on 7 April 2000 but made no
inquiries about the contents of the decision until August 2000.
21. The applicant responded that the Moscow City Court had
failed in its duty to inform him of the developments in the
proceedings.
22. The Court recalls its constant case-law, according to which
the object and purpose of Article 35 з 1 of the Convention are
best served by counting the six-month period as running from the
date of service of the written judgment in cases where the
applicant is entitled, pursuant to domestic law, to be served ex
officio with a written copy of the final domestic decision,
irrespective of whether that judgment was previously delivered
orally (see Soares Fernandes v. Portugal, No. 59017/00, зз 15 and
17, 8 April 2004; Sukhorubchenko v. Russia (dec.), No. 69315/01,
15 January 2004).
23. The Court notes that the date of delivery of the complete
text of the appeal judgment was to be determined at the appeal
hearing (see paragraph 18 above). The Government did not indicate
the date that had been fixed as the delivery date. Nor did they
claim that a copy of the appeal judgment had been served on the
applicant before 31 August 2000 or that it had been available for
inspection at the registry on an earlier date. The Court accepts
therefore that the applicant first obtained the appeal judgment of
the Moscow City Court on 31 August 2000. As he lodged the
application with the Court within six months of that date, the
application was introduced in time. For these reasons, the Court
dismisses the Government's objection.
24. The Court notes that the complaint is not manifestly ill-
founded within the meaning of Article 35 з 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
25. The Government claimed that the applicant's points of
appeal had not contained any information that could have led to
the quashing of the first-instance judgment. The applicant's
presence was not indispensable as the appeal court could decide on
the basis of the case-file and his written submissions.
26. The applicant maintained that he had been apprised of the
appeal hearing before the City Court in a belated fashion and that
he had been denied an effective opportunity to be heard.
27. The Court reiterates that the obligation under Article 6 з
1 to hold a public hearing is not an absolute one. Thus, a hearing
may be dispensed with if a party unequivocally waives his or her
right thereto and there are no questions of public interest making
a hearing necessary. A waiver can be done explicitly or tacitly,
in the latter case for example by refraining from submitting or
maintaining a request for a hearing (see, among other authorities,
{Hakansson} and Sturesson v. Sweden, judgment of 21 February 1990,
Series A No. 171-A, з 66; and Schuler-Zgraggen v. Switzerland,
judgment of 24 June 1993, Series A No. 263, з 58).
28. The Court observes that at the material time the Russian
rules of civil procedure provided for an oral hearing before the
appeal court. However, the parties' attendance was not mandatory
and, if a party did not appear at the hearing without a valid
reason after it had been duly notified thereof, the court could
proceed with the examination of the appeal. The Court considers
that these provisions were not, in themselves, incompatible with
the fair trial guarantees of Article 6 з 1 (see Yakovlev v.
Russia, No. 72701/01, з 20, 15 March 2005).
29. The Court further recalls that the Convention is intended
to guarantee not rights that are theoretical or illusory but
rights that are practical and effective. It considers that the
right to a fair and public hearing would be devoid of substance if
a party to the case were not apprised of the hearing in such a way
so as to have an opportunity to attend it, should he or she decide
to exercise the right to appear guaranteed in the domestic law
(see Yakovlev, cited above, з 21).
30. Turning to the present case, the Court observes that,
according to the postmark, the applicant received the summons for
the appeal hearing one day after it had taken place. The
Government did not deny that the summons had not reached the
applicant on time. 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 summoned and, if he
had not, whether the examination of the appeal should have been
adjourned.
31. It follows that there was a violation of the applicant's
right to a fair hearing enshrined in Article 6 з 1 of the
Convention.
II. Other alleged violations of the Convention
32. The applicant also complained under Article 6 з 1 of the
Convention that the domestic courts had not complied with the
procedural time-limits at all stages of the proceedings and that
they had given an arbitrary assessment of evidence and of his
arguments.
33. The Court recalls that the observance of domestic time-
limits is only one of the aspects for its assessment of compliance
with the "reasonable time" requirement of Article 6 з 1. In the
present case the global duration of the proceedings, which lasted
one year and six months, cannot be said to have exceeded a
"reasonable time". As to the complaint concerning the assessment
of evidence, the Court reiterates that Article 6 does not lay down
any rules on the admissibility of evidence or the way it should be
assessed, which are therefore primarily matters for regulation by
national law and the national courts. Having regard to the facts,
as submitted by the applicant, the Court finds no appearance of a
violation of that provision.
34. It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 зз
3 and 4 of the Convention.
III. Application of Article 41 of the Convention
35. 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."
36. The applicant did not submit a claim for just satisfaction.
Accordingly, the Court considers that there is no call to award
him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning the domestic authorities'
failure to apprise the applicant of the appeal hearing in good
time, admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of Article 6 з 1 of
the Convention;
3. Decides not to make an award under Article 41 of the
Convention.
Done in English, and notified in writing on 20 October 2005,
pursuant to Rule 77 зз 2 and 3 of the Rules of Court.
Christos ROZAKIS
President
{Soren} NIELSEN
Registrar
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