Постановление Европейского суда по правам человека от 04.03.2010 «Дело Мохов (Mokhov) против России» [англ.]

nce with regard to the applicant.
33. There has therefore been a violation of Article 6 § 2 of the Convention.

II. Alleged violation of Article 6 § 1 of the Convention

34. The applicant complained that the first-instance and appeal hearings in his defamation case had been held in his absence and that the court proceedings had thus been generally unfair. He relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
"1. In the determination of his civil rights and obligations..., everyone is entitled to a fair and public hearing... by an independent and impartial tribunal established by law..."

A. The parties' submissions

35. The Government contested that argument. They claimed that the applicant had been present at the hearing of 13 June 2001. Furthermore, the Constitutional Court did not find that the absence of a convicted person at a hearing in a civil case instituted on his or her request violated the Constitution. The applicant's right to equality of arms had not been breached because he had presented his arguments in writing and the domestic courts had meticulously examined them. The Government also claimed that the applicant had not requested the domestic authorities to reopen the civil proceedings because of newly discovered circumstances and thus had failed to exhaust effective domestic remedies.
36. The applicant maintained his complaint.

B. The Court's assessment

1. Admissibility

37. The Court reiterates that it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Selmouni v. France [GC], No. 25803/94, § 76, ECHR 1999-V, and Mifsud v. France (dec.), No. 57220/00, § 15, ECHR 2002-VIII). The Court further reiterates that the domestic remedies must be "effective" in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see {Kudla} v. Poland [GC], No. 30210/96, § 158, ECHR-XI).
38. In the present case, the Government vaguely asserted that the applicant could have applied for a reopening of the civil proceedings in his defamation case in the context of exhaustion of domestic remedies. The Court observes that the Government have not indicated which facts, in their view, could have given grounds for a reopening of the proceedings on the basis of newly discovered circumstances. In particular they did not specify how the remedy referred to could have provided the applicant with adequate redress for the alleged violations of Article 6 § 1. The Court finds that the Government failed to substantiate their claim that it was effective (see, among other authorities, Kranz v. Poland, No. 6214/02, § 23, 17 February 2004, and Skawinska v. Poland (dec.), No. 42096/98, 4 March 2003).
39. Therefore, the Government's objection as to the non-exhaustion of domestic remedies must be dismissed.
40. The Court further 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.

2. Merits

41. The Court reiterates that the principle of adversarial proceedings and equality of arms, which is one of the elements of the broader concept of a fair hearing, requires that each party be given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present its

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