Постановление Европейского суда по правам человека от 17.12.2009 «Дело Шилбергс (Shilbergs) против России» [англ.]

a fair and public... hearing... by [a]... tribunal..."

A. Submissions by the parties

101. The Government argued that the applicant's absence had been objectively justified by the fact that he had been serving his prison sentence in a correctional colony and that it had been impossible to transport him to the hearings due to the absence of an established legal procedure for the transfer of detainees to hearings in civil cases. However, he had been informed of his procedural rights including the right to be represented, of which he did not make use.
102. The applicant averred that he had not been brought to the hearings because Russian law on civil procedure did not guarantee such a right. He further stated that he had been unable to appoint counsel because he had limited financial resources. At the same time Russian law did not provide for free legal aid in similar cases.

B. The Court's assessment

1. Admissibility

103. The Court considers that the applicant's complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that they are not inadmissible on any other grounds. They must therefore be declared admissible.

2. Merits

(a) Absence from the hearings
104. 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 his case under conditions that do not place him or her at a substantial disadvantage {vis-a-vis} his or her opponent (see {Krcmar} and Others v. the Czech Republic, No. 35376/97, § 39, 3 March 2000, and Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 33, Series A No. 274). The Court has previously found a violation of the right to a "public and fair hearing" in a case where a Russian court, after having refused leave to appear to the imprisoned applicants, who had wished to make oral submissions on their defamation claim, failed to consider other legal possibilities for securing their effective participation in the proceedings (see Khuzhin and Others v. Russia, No. 13470/02, §§ 53 et seq., 23 October 2008). It also found a violation of Article 6 in a case where a Russian court refused leave to appear to an imprisoned applicant who had wished to make oral submissions on his claim that he had been ill-treated by the police. Despite the fact that the applicant in that case was represented by his wife, the Court considered it relevant that his claim had been largely based on his personal experience and that his submissions would therefore have been "an important part of the plaintiff's presentation of the case and virtually the only way to ensure adversarial proceedings" (see Kovalev v. Russia, No. 78145/01, § 37, 10 May 2007).
105. The Court observes that the Russian Code of Civil Procedure provides for the plaintiff's right to appear in person before a civil court hearing his claim (see paragraph 53). However, neither the Code of Civil Procedure nor the Penitentiary Code makes special provision for the exercise of that right by individuals who are in custody, whether they are in pre-trial detention or are serving a sentence. In the present case the applicant's requests for leave to appear were denied precisely on the ground that the domestic law did not make provision for convicted persons to be brought from correctional colonies to the place where their civil claim was being heard. The Court reiterates that Article 6 of the Convention does not guarantee the right to personal presence before a civil court but rather a more general right to present one's case effectively before the court and to



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