THIRD SECTION

CASE OF IGRANOV AND OTHERS v. RUSSIA

(Applications nos. 42399/13 and 8 others – see appended list)

JUDGMENT

STRASBOURG

20 March 2018

This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT 1

In the case of Igranov and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Helena Jäderblom, President,
Luis López Guerra,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 20 February 2018,
Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in nine applications 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 nine Russian nationals (“the applicants”). The application numbers and
the dates on which they were lodged with the Court, as well as the
applicants’ full names and dates of birth, are listed in the Appendix.
2. The Russian Government (“the Government”) were represented
initially by Mr G. Matyushkin, Representative of the Russian Federation to
the European Court of Human Rights, and then by his successor in that
office, Mr M. Galperin.
3. The applicants complained, in particular, that they had been denied an
opportunity to appear in person before the court in the civil proceedings to
which they were parties.
4. On 22 April 2016 the above complaint was communicated to the
Government and the remainder was declared inadmissible pursuant to
Rule 54 § 3 of the Rules of Court. The Court also informed the parties that it
was considering the suitability of applying a pilot judgment procedure and
requested the parties’ observations on the matter.
2 IGRANOV AND OTHERS v. RUSSIA JUDGMENT

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The facts of the cases, as submitted by the parties, may be

summarised as follows.
6. The applicants, who were detained at the material time in Russian
penal facilities, were claimants in separate sets of civil proceedings. Most of
the applicants were seeking compensation for various aspects of the
conditions of their detention, for unlawful criminal prosecution, or for lack
of adequate medical care.
7. None of the applicants were able to attend the hearings at which their
claims were examined. The domestic courts at both levels of jurisdiction
refused to allow them to be present. In most of the cases the courts held that
there was no domestic legal provision for bringing detainees to court and
referred to Article 77.1 of the Code on the Execution of Sentences and the
relevant provisions of the Code of Civil Procedure. They also noted that the
applicants had had the opportunity to submit written pleadings and to retain
counsel to represent them in court.
8. The applicants’ claims were refused at two levels of jurisdiction. The
dates of the final judgments are set out in the appended table.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Participation in civil proceedings

9. For relevant rules of Russian civil procedure and the practice of

Russian courts, see Yevdokimov and Others v. Russia, nos. 27236/05 and
10 others, §§ 9-15, 16 February 2016.

B. Re-examination of civil cases

10. The Code of Civil Procedure provides as follows:

Article 392. Grounds on which final judicial decisions may be re-examined

(in the light of newly discovered or new circumstances)
“1. Final judicial decisions may be re-examined in the light of newly discovered or
new circumstances.
2. The grounds on which final judicial decisions can be re-examined are:
...
2) new circumstances – the circumstances indicated in paragraph 4 of the present
Article which have appeared after the adoption of a judicial decision and which are
significant for the correct resolution of a case.
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT 3

...
4. The new circumstances are:
...
4) a finding by the European Court of Human Rights, after examination of a case in
which the final decision has been the subject of an application before it, of a violation
of the provisions of the Convention for the Protection of Human Rights and
Fundamental Freedoms.”
11. Ruling no. 31 of 11 December 2012 by the Plenary Supreme Court
on the “Application of provisions of the Code of Civil Procedure for
considering applications for re-examination of final judicial decisions in the
light of newly discovered or new circumstances” established that the list of
grounds for re-examination of a judicial decision in the light of new
circumstances, as set out in Article 392 § 4, was exhaustive and that a
judicial decision may be re-examined only if the new circumstances were
“of substantial importance for the correct examination of the case” (point 8).
12. Ruling no. 21 of 27 June 2013 by the Plenary Supreme Court on the
“Application of the Convention for the Protection of Human Rights and
Fundamental Freedoms of 4 November 1950 and its Protocols by the courts
of general jurisdiction” specified that a judicial act should be re-examined if
the applicant had continued to suffer from the negative consequences of
such an act and the Court had established a violation of the Convention or
its Protocols of a procedural nature that put in question the outcome of the
proceedings (point 17; for more details about the ruling, see Davydov
v. Russia, no. 18967/07, § 15, 30 October 2014).
13. By decision of 19 April 2017, the Presidium of the St Petersburg
City Court rejected an application for the reopening of civil proceedings
submitted by Ms Skorodumova, one of the applicants in the case of
Melnikov and Others v. Russia (nos. 40869/06 and 8 others) whose
applications had been struck out on 22 November 2016 by a decision of a
Committee of the Third Section of the Court. The Presidium held that, in the
absence of a Court judgment on the merits of the applicants’ complaints or a
finding of a violation affecting the outcome of the civil proceedings to
which Ms Skorodumova had been a party, the original judicial decision was
not amenable to re-examination under Article 392 of the Code of Civil
Procedure.
14. By an appeal decision of 4 October 2017, the Khabarovsk Regional
Court quashed the first-instance court’s decision refusing an application for
the reopening of civil proceedings submitted by Mr Resin, one of the
applicants in the Yevdokimov and Others case (cited above) in which the
Court had found a violation of Article 6 § 1 on account of the applicants’
absence from the civil proceedings. The Khabarovsk Regional Court
pointed out that the procedural rights of parties to the proceedings could not
be restricted in an arbitrary fashion and that Mr Resin’s exclusion had been
4 IGRANOV AND OTHERS v. RUSSIA JUDGMENT

incompatible with the position of the Constitutional Court. It ordered a

reopening of the civil proceedings. By contrast, the appeal judgment by the
Perm Regional Court of 31 May 2017 in case no. 33-5962 dismissed an
application for the reopening of proceedings lodged by Mr Davydov, in
respect of whom the Court found a similar violation (see Barkov and Others
v. Russia, nos. 38054/05 and 8 others, 19 July 2016). The Perm Regional
Court noted in particular that Mr Davydov had been a party to a dispute
over a debt he had owed to another person, that the materials of the case had
been destroyed, and that he had been awarded compensation by the Court
for what had been an essentially procedural violation of his rights.

THE LAW

I. JOINDER OF THE APPLICATIONS

15. The Court notes that all the applicants complained that they had been
unable to attend the hearings in the civil proceedings to which they were
parties. Having regard to the similarity of the applicants’ grievances, the
Court is of the view that, in the interest of the proper administration of
justice, the applications should be joined in accordance with Rule 42 § 1 of
the Rules of Court.

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

16. The applicants complained that their right to a fair hearing under
Article 6 § 1 of the Convention had been breached on account of the
domestic courts’ refusal of their requests to appear in court. The relevant
part of Article 6 § 1 reads as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a
fair and public ... hearing ... by [a] ... tribunal ...”

A. The Government’s request that certain applications be struck out

on the basis of a unilateral declaration

17. With the exception of Mr Khvorostyanoy and Mr Resin, whose

complaints they considered inadmissible (see paragraph 28 below), the
Government submitted unilateral declarations in respect of the other seven
applicants. They acknowledged a violation of their right to a fair trial under
Article 6 § 1 of the Convention, offered to pay them a sum of
1,500 euros (EUR) each, covering any pecuniary and non-pecuniary damage
as well as costs and expenses, and invited the Court to strike their cases out
of its list in accordance with Article 37 § 1 (c) of the Convention. They
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT 5

undertook to effect the payment within three months of the date of

notification of the Court’s decision and, in the event of failure to pay that
sum within the three-month period, to pay simple interest on that amount
until the date of settlement at a rate equal to the marginal lending rate of the
European Central Bank plus three percentage points.
18. The applicants concerned were invited to indicate whether or not
they accepted the terms of the declaration and, in the event of refusal, to
state their reasons for refusing it.
19. Mr Kuznetsov, Mr Siverkov and Mr Sulimov did not reply.
Mr Igranov, Mr Zhundo, Mr Malygin and Mr Lupanskiy rejected the terms
of the Government’s declaration. They stated that the proper redress for the
violation of their right to a fair trial would be a full review of their civil
cases, which would only be possible on the basis of a judgment of the
Court.
20. The Court reiterates that the applicant’s consent to the terms of the
declaration is not required in order to strike out an application under
Article 37 § 1 (c) of the Convention, for such a decision may be taken even
if the applicant wishes the examination of the case to be continued. The
elements on the basis of which the Court determines whether or not the
declaration offers a sufficient basis for finding that respect for human rights
does not require it to continue examination of the case are well-established
in its case-law. They include in particular the nature of the complaints made,
the acknowledgment of a violation of the Convention and the undertaking to
pay adequate compensation for such violation, the existence of clear and
extensive case-law in similar cases, and the manner in which the
Government intend to provide redress to the applicant and whether this
makes it possible to eliminate the effects of an alleged violation (see
Tahsin Acar v. Turkey (preliminary objections) [GC], no. 26307/95, § 75,
ECHR 2003-VI, and for a recent restatement of applicable principles,
Jeronovičs v. Latvia [GC], no. 44898/10, §§ 64-71, ECHR 2016).
21. The instant case concerns the allegedly unfair nature of civil
proceedings in which Russian courts failed to secure the attendance of
imprisoned applicants wishing to take part in hearings on their claims. The
Court has found a violation of Article 6 in a large number of similar Russian
cases and has recently consolidated its approach in the leading judgment of
Yevdokimov and Others (cited above, §§ 30-48). It follows that the central
issue of this case is based on clear and extensive case-law of the Court. The
Court is also satisfied that the Government acknowledged a violation of
Article 6 of the Convention and undertook to pay compensation in an
amount which was not unreasonable in relation to the Court’s awards in
similar cases (ibid., § 58).
22. On the issue of adequate redress, the Court considers that a
distinction must be drawn between the situation of those applicants who did
not react to the Government’s declaration and those who raised specific
6 IGRANOV AND OTHERS v. RUSSIA JUDGMENT

objections to it. The distinction hinges on the fact that the assessment of
whether or not the proposed redress is adequate involves a degree of
subjectivity relating to the applicant’s individual situation. The applicant’s
position is therefore relevant and important, even if not decisive. By inviting
applicants to submit their comments on the declaration, the Court provides
them with an opportunity to alert it to any deficiencies in the proposed
redress, such as a manifestly insufficient amount or an outstanding
undertaking to re-examine the issue at domestic level. Just as with claims
under Article 41 of the Convention, the Court normally looks only to the
items actually claimed and will not of its own motion consider whether the
applicant has been otherwise prejudiced (see Nagmetov v. Russia [GC],
no. 35589/08, § 68, 30 March 2017). This approach is capable of preventing
situations such as the one before the Court in the Jeronovičs case, in which
the applicant initially rejected the declaration solely because of an
insufficient amount of compensation, but later raised a complaint about the
absence of a clause requiring the respondent State to reopen the criminal
investigation (see Jeronovičs v. Latvia (dec.), no. 547/02, § 47, 10 February
2009, and Jeronovičs [GC], cited above, §§ 23 and 37).
23. The applicants Mr Kuznetsov, Mr Siverkov and Mr Sulimov did not
submit any comments on the Government’s declarations. They must
therefore be presumed to have taken cognisance of their terms and to have
no objections to them. Accordingly, the Court finds that payment of the
specified amount constitutes adequate redress in the particular situation of
these applicants. In the light of the above considerations, and in particular
given the clear and extensive case-law on the issue, the Court is satisfied
that respect for human rights as defined in the Convention and the Protocols
thereto does not require it to continue the examination of the applications
(Article 37 § 1 in fine), and the applications lodged by Mr Kuznetsov,
Mr Siverkov and Mr Sulimov should be struck out of its list. Should the
Government fail to comply with the terms of the declarations, the
applications could be restored to the list in accordance with Article 37 § 2 of
the Convention.
24. By contrast, the other four applicants disagreed with the terms of the
declaration on the grounds that a striking-out decision, unlike a Court
judgment finding a violation, would bar their applications for
re-examination of their cases at national level. Accordingly, the Court needs
to examine, first, whether a possibility to apply for the reopening of civil
proceedings constitutes appropriate redress in the circumstances of the
present case, and secondly, whether the right to apply for the reopening of
proceedings was secured in domestic law in the event of the case being
struck out by a Court decision on the basis of a unilateral declaration (see
Aviakompaniya A.T.I., ZAT v. Ukraine, no. 1006/07, § 34, 5 October 2017).
25. On the first issue, the Court reiterates that when an applicant has
suffered an infringement of his right to a fair hearing guaranteed by
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT 7

Article 6 of the Convention, he should, as far as possible, be put in the

position in which he would have been, had the requirements of that
provision not been disregarded. The re-examination of the case would be the
most appropriate form of redress in the situation where the violation
stemmed from procedural errors or shortcomings of such gravity that a
serious doubt was cast on the outcome of the domestic proceedings
complained of (see Moreira Ferreira v. Portugal (no. 2) [GC],
no. 19867/12, §§ 48-49, ECHR 2017 (extracts), and Davydov, cited above,
§ 27, both citing the Committee of Ministers’ Recommendation
No. R(2000)2 to member States on the re-examination or reopening of
certain cases at domestic level following judgments of the European Court
of Human Rights). The complete exclusion of the applicant from the
proceedings to which he was a party without putting in place any
counterbalancing arrangements amounts to a breach of the principle of a fair
trial and casts doubt on the outcome of the proceedings (see
Yevdokimov and Others, cited above, § 52). Russian courts appear to have
endorsed that view by acceding to an applicant’s request for the reopening
of proceedings following the Court’s finding of a violation (see the
Khabarovsk Regional Court’s appeal judgment in paragraph 14 above). The
Court finds no reason to hold otherwise and finds that, were a violation of
the Convention alleged in the present case to be established, the appropriate
form of redress would be to provide the applicants with a possibility to
apply for the reopening of proceedings. It is however important to reiterate
that making use of that possibility does not prejudge a domestic court’s
decision on whether such a reopening should be granted on the facts of the
specific case, having regard to the principle of res judicata or legal certainty
in civil litigation, in particular where such litigation concerned private
parties with their own legitimate interests to be protected (see Davydov,
cited above, § 29; Bochan v. Ukraine (no. 2) [GC], no. 22251/08, §§ 57-58,
ECHR 2015, and Yevdokimov and Others, cited above, § 59, and compare
with the Perm Regional Court’s judgment in paragraph 14 above).
26. This conclusion takes the Court to the second question of whether a
procedure by which such a reopening can be requested is available. The
Court has previously refused unilateral declarations if the right to apply for
reopening of domestic proceedings was not guaranteed in domestic law (see
Hakimi v. Belgium, no. 665/08, § 29, 29 June 2010; Šarić and Others
v. Croatia, nos. 38767/07 et al., §§ 26-29, 18 October 2011; Rozhin
v. Russia, no. 50098/07, §§ 23-25, 6 December 2011; Vojtěchová
v. Slovakia, no. 59102/08, §§ 26-28, 25 September 2012; Davydov, cited
above, §§ 23-32, and Aviakompaniya A.T.I., ZAT, cited above, § 37). The
Court is satisfied that the finding of a violation in a Court judgment is
considered under Russian law of civil procedure a “new circumstance”
warranting examination of an application for the reopening of civil
proceedings (see Article 392 § 4(4) of the Code of Civil Procedure cited in
8 IGRANOV AND OTHERS v. RUSSIA JUDGMENT

paragraph 10 above). It is also satisfied that there appears to be an

established practice of considering applications for the reopening of
proceedings after the Court has found a violation in cases similar to the
present one (see the case-law cited in paragraph 14 above). The situation is
different, however, with regard to unilateral declarations or a decision by
the Court to strike a case out of its list. Russian law contains no provision
allowing for the reopening of domestic proceedings further to a declaration
by the Government or a Court decision striking the case out of its list (see
Rozhin, cited above, § 23). The domestic courts accordingly consider
applications for the reopening of proceedings inadmissible in the absence of
a Court judgment on the merits or a finding of a violation (see paragraph 13
above). The Government conceded as much, indicating that unilateral
declarations would not be an acceptable way of settling similar cases, as
they do not furnish a legal basis for applying for the reopening of
proceedings (see paragraph 44 below). In these circumstances, the Court
finds that a unilateral declaration or a Court decision approving it does not
provide the same assured access to a procedure allowing for examination of
the question of the reopening of domestic proceedings as a Court judgment
would (see Aviakompaniya A.T.I., ZAT, cited above, § 38).
27. In view of the foregoing, the Court, without prejudging its decision
on the admissibility and merits of the case, accepts the four applicants’
objection to the Government’s request and holds that respect for human
rights as defined in the Convention and its Protocols requires the continued
examination of the case. The Government’s request for the applications to
be struck out of the list of cases under Article 37 of the Convention is
rejected.

B. Admissibility

28. The Government submitted that the applications by

Mr Khvorostyanoy and Mr Resin had been lodged more than six months
after the final judgments in their cases and were therefore belated.
29. Mr Resin submitted in reply that he had first become aware of the
appeal court’s decision on 20 October 2014 when he had received a copy of
it from the prison authorities. He enclosed a copy of the document which he
had signed for its receipt on that date. Mr Khvorostyanoy replied that he had
handed over a completed application form to the prison authorities already
on 25 June 2014. He produced a copy of the covering letter of that date.
30. The Court reiterates its constant approach that it is in line with the
object and purpose of Article 35 § 1 for the six-month time-limit to start
running on the date of service of a copy of a final domestic decision
delivered in the context of exhaustion of domestic remedies (see
Sabri Güneş v. Turkey [GC], no. 27396/06, § 53, 29 June 2012, with further
references). Mr Resin was not present or represented at the appeal hearing
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT 9

before the Khabarovsk Regional Court and he first became aware of the
existence of the appeal judgment and of its contents on 20 October 2014
when the prison authorities passed that judgment on to him. Having regard
to the elements provided by Mr Resin, the Court establishes 20 October
2014 as the starting date of the six-month time-limit and finds that the
application was not belated, having been submitted as it was on 17 April
2015.
31. The situation of Mr Khvorostyanoy is rather unusual. It appears from
the documents in the case file that he handed over a completed application
form to the prison authorities for despatch on 25 June 2014, but for reasons
he did not elaborate upon, he put the date of 26 June 2014 on its last page.
Whether he post-dated it on purpose or in error, what is important is that the
application was ready to be mailed on 25 June 2014. Any further delays
were attributable to the prison authorities and were outside
Mr Khvorostyanoy’s control. In these circumstances, the Court takes
25 June 2014 as the date of introduction and holds that Mr Khvorostyanoy’s
application concerning the proceedings that ended with the Kaliningrad
Regional Court’s judgment of 25 December 2013 was not belated.
32. The Court notes that the complaints by Mr Igranov, Mr Zhundo,
Mr Khvorostyanoy, Mr Resin, Mr Malygin and Mr Lupanskiy are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.

C. Merits

33. With the exception of Mr Khvorostyanoy and Mr Resin, the

Government acknowledged a violation of Article 6 § 1 of the Convention in
respect of the other applicants on account of the domestic courts’ refusal of
their requests for leave to appear in court.
34. In the leading case of Yevdokimov and Others (cited above), the
Court found a violation of Article 6 § 1 of the Convention in respect of a
similar set of circumstances. The incarcerated applicants in that case were
not afforded an opportunity to attend hearings in the civil proceedings to
which they were parties. The Court held that the Russian courts had failed,
firstly, to carry out a proper assessment of the nature of the civil claims with
a view to deciding whether the applicants’ presence was necessary, and
secondly, to consider appropriate procedural arrangements enabling the
applicants to be heard, thereby depriving them of the opportunity to present
their cases effectively (ibid., § 52).
35. Likewise in the instant case, the courts did not verify whether the
nature of the disputes called for the applicants’ personal testimony and
whether their attendance was essential to ensure the overall fairness of the
proceedings. The courts denied the applicants the opportunity to attend the
10 IGRANOV AND OTHERS v. RUSSIA JUDGMENT

hearings by reference to deficiencies in Russian law, irrespective of the

subject matter of the proceedings. Even though the applicants’ involvement
could have been ensured by making alternative procedural arrangements, for
example, by using video-link facilities or conducting an off-site hearing, the
courts did not consider those options. As a result, the applicants were
deprived of an opportunity to present their cases effectively before the
courts, in breach of the principle of a fair trial under Article 6 § 1 of the
Convention.
36. There has therefore been a violation of that provision.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

37. 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.”
38. The Government submitted that Article 41 was to be applied in
accordance with the established case-law.
39. The Court has found above, as it did in similar cases previously, that
the reopening of proceedings, if requested, would be the most appropriate
form of redress for the established violation of the applicants’ right to a fair
hearing guaranteed by Article 6 of the Convention (see
Yevdokimov and Others, cited above, § 59, with further references).
Pursuant to Article 392 §§ 2(2) and 4(4) of the Code of Civil Procedure, the
above finding of a violation constitutes grounds for considering an
application for the reopening of civil proceedings to which the applicants
were parties (see paragraphs 10 and 14 above).
40. The Court further considers that the applicants have suffered
non-pecuniary damage on account of their exclusion from the proceedings
to which they were parties. That damage cannot be sufficiently compensated
for by the finding of a violation or the possibility to apply for the reopening
of proceedings, even though the latter possibility must be taken into account
for determining the amount of the award. Making its assessment on an
equitable basis, the Court awards EUR 1,500 in respect of non-pecuniary
damage, plus any tax that may be chargeable, to each of the applicants
Mr Igranov, Mr Zhundo, Mr Khvorostyanoy, Mr Resin, Mr Malygin and
Mr Lupanskiy.
41. Lastly, the Court rejects the claim for costs and expenses, finding
that it has not been shown that the applicants have made, or are liable to
make, any disbursements to their representatives before the Court.
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT 11

IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION

42. The relevant parts of Article 46 of the Convention read:

“1. The High Contracting Parties undertake to abide by the final judgment of the
Court in any case to which they are parties.
2. The final judgment of the Court shall be transmitted to the Committee of
Ministers, which shall supervise its execution.
...
5. If the Court finds a violation of paragraph 1, it shall refer the case to the
Committee of Ministers for consideration of the measures to be taken. ...”
43. The Court reiterates that a judgment in which it finds a breach of the
Convention imposes on the respondent State a legal obligation not just to
pay those concerned the sums awarded by way of just satisfaction, but also
to choose, subject to supervision by the Committee of Ministers, general
measures to be adopted in its domestic legal order to put an end to the
violation found by the Court and to redress as far as possible its effects. It is
primarily for the State concerned to choose, subject to supervision by the
Committee of Ministers, the means to be used in its domestic legal order to
discharge its obligation under Article 46 of the Convention. However, with
a view to helping the respondent State to fulfil that obligation, the Court
may seek to indicate the type of general measures that might be taken in
order to put an end to the situation it has found to exist (see Centre for
Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC],
no. 47848/08, §§ 158-59, ECHR 2014; Stanev v. Bulgaria [GC],
no. 36760/06, §§ 254-55, ECHR 2012; Scoppola v. Italy (no. 2) [GC],
no. 10249/03, § 148, 17 September 2009; and Broniowski v. Poland [GC],
no. 31443/96, § 194, ECHR 2004-V).

A. The parties’ arguments as to the suitability of the pilot-judgment

procedure

44. The Government submitted that recourse to the pilot-judgment

procedure was not necessary. As regards general measures, they affirmed
their commitment to abide by many of the Court’s judgments in which a
similar violation of the Convention had been found. They emphasised that
the recent Yevdokimov and Others judgment had set out in detail the
possible practical arrangements for ensuring prisoners’ effective
participation in civil proceedings. The Government had an obligation to
execute that judgment under the supervision of the Committee of Ministers
and a separate pilot judgment was not necessary for that purpose. On the
issue of individual relief, the Government considered that they would be
unable to settle follow-up cases in the same way as they had done in other
pilot-judgment proceedings. Their capacity to settle similar cases was
12 IGRANOV AND OTHERS v. RUSSIA JUDGMENT

limited by reason of the fact that the Court did not consider paying a sum of
money to be sufficient redress, while a re-hearing of a civil case was
possible only on the basis of a Court judgment finding a violation.
45. The applicants submitted that Russian law provided no framework
governing the personal participation of prisoners in civil proceedings. The
higher courts left the first-instance courts a discretionary power to decide
whether the prisoner should be granted leave to appear. However, in
practice, the first-instance courts refused such leave to 99.9 per cent of
prisoners, whether plaintiffs or defendants, in order to avoid the cost of
bringing them to hearings. Nor did they offer any alternative arrangements
allowing prisoners to take part in civil proceedings. In the applicants’ view,
the absence of clear statutory provisions relating to the participation of
prisoners in civil proceedings amounted to a systemic problem, giving rise
to repetitive violations of the right to a fair trial.

B. The Court’s assessment

46. The Court reiterates that in the context of systemic or structural

violations, the potential inflow of future cases is an important consideration
in terms of preventing the accumulation of repetitive cases on the Court’s
list, which hinders effective processing of other cases giving rise to
violations, sometimes serious, of the rights it is responsible for
safeguarding. A systemic or structural problem stems or results not just
from an isolated incident or a particular turn of events in individual cases,
but from defective legislation, when actions and omissions based thereon
have given rise, or may give rise, to repetitive applications (see Gülmez
v. Turkey, no. 16330/02, § 60, 20 May 2008; Urbárska Obec Trenčianske
Biskupice v. Slovakia, no. 74258/01, § 148, 27 November 2007; and
Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 235-37,
ECHR 2006-VIII).
47. The Convention issue in the present case is an unjustified restriction
on the applicants’ right to present their cases effectively before civil courts
because of their position as remand or convicted prisoners. This issue is not
new and has been the subject of well-established case-law. Since one of the
first judgments finding a violation of Article 6 § 1 (see Kovalev v. Russia,
no. 78145/01, §§ 30-38, 10 May 2007), the Court has highlighted the
widespread nature of the problem in more than a hundred cases in which
Russian courts had refused to secure the attendance of imprisoned
applicants wishing to take part in hearings on their civil claims (see the
cases listed in Yevdokimov and Others, cited above, § 32). Russia’s highest
courts – the Constitutional Court and the Plenary Supreme Court – have
directed their attention to the issue on several occasions, providing specific
indications on how to secure the rights of incarcerated litigants within the
framework of the existing legislation and how to comply with the
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT 13

requirements of Article 6 § 1 (ibid., §§ 12-15). In 2016, the Court adopted a

leading judgment consolidating its approach to the problem and traced its
origin to an apparent deficiency in the Russian legal system, which makes
no provision for detainees’ participation in civil proceedings (see
Yevdokimov and Others, cited above, § 60). The number of incoming
applications that are prima facie admissible went down in 2016 and 2017.
However, the main reason for that development appears to be the Court’s
decision to recognise that the two-tier cassation in civil proceedings is an
effective remedy that needs to be exhausted (see Abramyan and Others
v. Russia (dec.), nos. 38951/13 and 59611/13, 12 May 2015). Nevertheless,
in the last two years the Court has processed approximately fifty such
applications, of which two thirds were lodged in 2017. Noting that the
legislative framework has not evolved at the domestic level and that Russian
courts have not followed the directions given by the Constitutional Court
and the Supreme Court, the Court finds that the actions based on defective
legislation and inconsistent judicial practice amount to a structural problem
which gives rise to repetitive applications.
48. That being said, the Court observes that it has provided a
comprehensive outline of the issues that need to be addressed by the
Russian courts, and of the counterbalancing measures that they need to put
in place, in order to secure the incarcerated litigants’ right to a fair trial (see
Yevdokimov and Others, cited above, §§ 33-48). It has also reiterated that
the existing situation calls for the adoption of general measures by the
respondent State, which remains, subject to monitoring by the Committee of
Ministers, free to choose the means by which it will discharge its legal
obligation under Article 46 of the Convention, provided that such means are
compatible with the conclusions set out in the Court’s judgment (ibid.,
§ 60). Since that judgment was adopted less than two years ago, the Court
will abstain at the present time from formulating general measures or
applying the pilot-judgment procedure, considering that the indications
provided above will help to ensure the proper execution of the present
judgment under the supervision of the Committee of Ministers
(see Savriddin Dzhurayev v. Russia, no. 71386/10, § 264,
ECHR 2013 (extracts)). It is for the Committee of Ministers to assess the
effectiveness of the measures proposed by the Russian Government and to
follow up on their subsequent implementation in line with the Convention
requirements (see Lindheim and Others v. Norway, nos. 13221/08 and
2139/10, § 137, 12 June 2012).
49. Should the efforts made by the Government to tackle the underlying
Convention problem prove to be insufficient, the Court may reassess the
need to apply the pilot-judgment procedure to this type of cases (see
Rutkowski and Others v. Poland, nos. 72287/10 and 2 others,
§§ 203-06, 219 et passim, 7 July 2015; Gazsó v. Hungary, no. 48322/12,
14 IGRANOV AND OTHERS v. RUSSIA JUDGMENT

§§ 32-33 and 35, 16 July 2015, and Novruk and Others v. Russia,
nos. 31039/11 and 4 others, § 135, 15 March 2016).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Decides to strike the applications lodged by Mr Kuznetsov, Mr Siverkov

and Mr Sulimov out of its list of cases in accordance with
Article 37 § 1 (c) of the Convention;

3. Declares the complaints lodged by Mr Igranov, Mr Zhundo,

Mr Khvorostyanoy, Mr Resin, Mr Malygin and Mr Lupanskiy
admissible;

4. Holds that there has been a violation of Article 6 § 1 of the Convention;

5. Holds
(a) that the respondent State is to pay, within three months of the date on
which the judgment becomes final in accordance with Article 44 § 2 of
the Convention, EUR 1,500 (one thousand five hundred euros) in respect
of non-pecuniary damage, plus any tax that may be chargeable, to each
of the applicants Mr Igranov, Mr Zhundo, Mr Khvorostyanoy, Mr Resin,
Mr Malygin and Mr Lupanskiy, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement, simple interest shall be payable on such amounts at a rate
equal to the marginal lending rate of the European Central Bank during
the default period, plus three percentage points;

6. Rejects the remainder of the applicants’ claims.

Done in English, and notified in writing on 20 March 2018, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Helena Jäderblom

Registrar President
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT 15

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of

the Rules of Court, the separate opinion of Judge Keller is annexed to this
judgment.

H.J.
J.S.P.
16 IGRANOV AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINION

CONCURRING OPINION OF JUDGE KELLER

I. Introduction

1. For the reasons set out in paragraphs 33–36 of the present judgment I
am in full agreement with the majority of my colleagues that there has been
a breach of the principle of a fair trial under Article 6 § 1 of the Convention
as a result of the applicants’ inability to present their cases effectively
before the national courts. However, I am unable to agree with my
colleagues’ conclusion that the pilot-judgment procedure is not suited to the
current case.
2. Despite observing a structural problem which has given rise to
repetitive applications, my colleagues conclude that there is no need to
adopt a pilot-judgment procedure because the Court has already provided, in
a previous case, an outline of the issues that need to be addressed and the
counterbalancing measures that need to be adopted. The Court also holds
that the situation in the present case does not call for the adoption of general
measures. I respectfully disagree with this conclusion and argue that this
case was a missed opportunity to adopt a pilot-judgment approach, through
which the Court could have provided the respondent Government with
concrete indications on how the structural and systemic problem should be
resolved. Adopting a pilot judgment would have been in line with previous
case-law, would have helped the Court to deal with the large number of
pending and incoming cases and would have aided the Committee of
Ministers in examining the execution of these judgments.
3. This opinion sketches the general principles of the pilot-judgment
procedure (II.), provides context to this case (III.), and highlights the main
reasons why the Court should have adopted a pilot judgement in this
case (IV.). I argue that given the systemic and structural problem in the
respondent State, which has consistently given rise to a violation of the
Convention, the Court should have used this case to indicate what general
measures must be taken by the Russian Government to fix the systemic
defect and to give current and future applicants a domestic remedy.

II. General principles

4. Article 46 of the Convention “imposes on the respondent State a legal

obligation to implement, under the supervision of the Committee of
Ministers, appropriate general and/or individual measures to secure the right
of the applicants which the Court has found to be violated” (see Kurić and
Others v. Slovenia (just satisfaction) [GC], no. 26828/06, § 132, ECHR
2014). Such measures must be taken “in respect of other persons in the
applicants’ position, notably by solving the problems that have led to the
Court’s findings” (ibid., § 132). Where structural problems give rise to
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINION 17

repetitive applications (in other words, where a large group of identical

cases derive from the same underlying problem), the Court has previously
adopted the pilot-judgment procedure, which allows it to “clearly identify in
a judgment the existence of structural problems underlying the violations
and to indicate specific measures or actions to be taken by the respondent
State to remedy them” (ibid., § 133; see also Broniowski v. Poland [GC],
no. 31443/96, §§ 190 and 191, ECHR 2004-V)1. The case chosen for the
pilot-judgment procedure must cover all of the factual and legal aspects of
the systemic problem.
5. After adopting the pilot-judgment procedure the respondent State is
subsequently required to eliminate the source of the violation for the future
and provide a remedy for the past prejudice suffered by both the applicants
in the pilot case and all other victims of the same type of violation (see
Burmych and Others v. Ukraine [GC], nos. 46852/13 et al., § 161, ECHR
2017). The pilot-judgment procedure allows “the speediest possible redress
to be granted at domestic level to the large number of people suffering from
the general problem identified in the pilot judgment, thus implementing the
principle of subsidiarity which underpins the Convention system” (see
Kurić and Others, cited above, § 134). It also reduces the threat to the
effective functioning of the Convention system, by reducing the number of
similar applications before the Court (see Burmych and Others, cited above,
§ 159).
6. Since Broniowski, the Court has delivered a number of pilot
judgments where it has directed States to take general measures to solve
systemic problems, such as legislative dysfunctions or defective practices
affecting property rights2, excessive length of proceedings3, inadequate
conditions of detention4, non-enforcement of final domestic judgments and
decisions5, and other issues6. In Burdov v. Russia (no. 2) (no. 33509/04,
§ 122, ECHR 2009), for example, the applicants claimed that long delays in
the enforcement of judgments awarded in their favour violated the
Convention. At the outset of that case, the Court noted that “non-
enforcement or delayed enforcement of domestic judgments constitute[d] a
recurrent problem in Russia that ha[d] led to numerous violations of the
Convention” and remarked further that the Court had “already found such
violations in more than two hundred judgments since the first such finding
in the Burdov case in 2002” (ibid.). The Court considered it appropriate to
1
The procedural framework of the pilot-judgment procedure is set out in Rule 61 of the
Rules of Court.
2
See, for example, Hutten-Czapska v. Poland [GC], no. 35014/97, § 238, ECHR 2006-
VIII.
3
See, for example, Lukenda v. Slovenia, no. 23032/02, ECHR 2005-X.
4
See, for example, Torreggiani and Others v. Italy, nos. 43517/09 and 6 others, 8 January
2013.
5
See, for example, Burdov v. Russia (no. 2), no. 33509/04, ECHR 2009.
6
See, for example, Kurić and Others, cited above.
18 IGRANOV AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINION

apply the pilot-judgment procedure given the “recurrent and persistent

nature of the underlying problems, a large number of people affected by
them in Russia and the urgent need to grant them speedy and appropriate
redress at the domestic level” (ibid., § 130).
7. Once the Court has instituted a pilot-judgment procedure, it has some
flexibility with regard to the other cases arising from the same problem.
Where general measures include a new legal remedy capable of providing
sufficient and adequate redress at a domestic level, the Court has declared
follow-up cases stemming from the same systemic issue inadmissible for
non-exhaustion of local remedies and “repatriated” them to the respondent
States (see, for instance, Xynos v. Greece, no. 30226/09, 9 October 2014).
Where States have introduced domestic legislation that provided existing
and potential victims with relief at the domestic level, the Court has simply
struck out cases already on its list (see, for instance, E.G. v. Poland and 175
Other Bug River applications v. Poland (dec.), no. 50425/99, §§ 22-25,
ECHR 2008 (extracts)).

III. Context

8. The Court has already established that there is a “deficiency in the

Russian legal system, which makes no provision for detainees’ participation
in civil proceedings” in Yevdokimov and Others v. Russia (nos. 27236/05
and 10 others, § 60, 16 February 2016), the leading judgment dealing with
the issues presented before the Court today (see paragraph 47 of the
judgment). That decision came after the Court had already “highlighted the
widespread nature of the problem in many previous cases that [had] come
before it” (see Yevdokimov and Others, cited above, § 60). The Court also
noted that the situation “call[ed] for the adoption of general measures by the
respondent State”, although it agreed that the State was “free to choose the
means by which it will discharge its legal obligations under Article 46 of the
Convention” (ibid.).
9. Since Yevdokimov and Others, the Court has processed approximately
fifty applications alleging the same deficiency (see paragraph 47 of the
judgment), and it does not look as though this influx of cases will stop any
time soon. According to the information in the Court’s Registry database,
three to five new and prima facie admissible cases are coming before the
Court each month on this exact same issue, amounting potentially to about
60 cases per year. Furthermore, Russia currently has over 600,000
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINION 19

prisoners7, making the potential of additional incoming cases quite

substantial8.

IV. Application of principles to the present case

10. The Court, in the present case, noted that “the legislative framework
has not evolved at the domestic level and that Russian courts have not
followed the directions given by the Constitutional Court and the Supreme
Court” on how to remedy this issue (see paragraph 47 of the judgment). The
actions of the respondent State, the Court further held, “[are] based on a
defective legislation and inconsistent judicial practice [and therefore]
amount to a structural problem which gives rise to repetitive applications”
(ibid.).
11. This case highlighted the deficiency in the Russian legal system, the
widespread and long-term nature of the problem and the defective
legislation and inconsistent judicial practice. Coupled with the numerous
applications that have already come and will continue to come before the
Court, this case created a perfect opportunity for the Court to have adopted a
pilot-judgment procedure. This would have been in line with the Court’s
case-law and would have afforded the Court a practical benefit in dealing
with the large number of repetitive cases. The judgment seems to lead to the
same conclusion, noting that there are structural deficiencies within the
Russian system, that these deficiencies have led to the issues alleged by
numerous applicants before the Court, that it has been years since the first
case on this issue was decided by the Court and that the Court continues to
receive dozens of applications on this exact same issue.
12. However, the Court stops short of adopting a pilot-judgment
procedure, stating that it has already “provided a comprehensive outline of
the issues that need to be addressed by the Russian courts, and of the
counterbalancing measures that they need to put in place, in order to secure
the incarcerated litigants’ rights to a fair trial”, and that “the existing
situation calls for the adoption of general measures by the respondent State”
(see paragraph 48 of the judgment). The Court also holds that because
Yevdokimov and Others was adopted only two years ago, it will abstain
from “formulating general measures or applying the pilot-judgment
procedure” (ibid.). It considers that the indications already provided will aid

7
As of 1 January 2018, the total number of prisoners in Russia, according to the national
prison administration, is 602,176. See World Prison Data Brief – Russian Federation,
http://www.prisonstudies.org/country/russian-federation.
8
As was held in Hutten-Czapska (cited above, § 236), and later restated in Kurić and
Others v. Slovenia ((merits) [GC], no. 26828/06, § 414, ECHR 2012), “the potential inflow
of future cases is also an important consideration in terms of preventing the accumulation
of repetitive cases on the Court’s docket”.
20 IGRANOV AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINION

in “ensur[ing] the proper execution of the present judgment” with the help
of supervision from the Committee of Ministers (ibid.).
13. While it is true that Yevdokimov and Others was decided only two
years ago, this was not the first case of its kind on this issue and not much
seems to have changed since then. The Court accepted that before its
judgment in Yevdokimov and Others (cited above, § 32) there were already
“a large number of cases” in which Russian courts had refused to secure the
attendance of imprisoned applicants wishing to take part in hearings on their
civil claims. Since then, as mentioned above, about fifty additional
applications on the same issue have been lodged with the Court, two-thirds
of them in the last year alone (see paragraph 47 of the judgment). It is clear
that “the legislative framework has not evolved at the domestic level” and
that Russia has not been able or willing to implement the changes needed to
give these individuals a proper domestic remedy (ibid.). By failing to
implement a pilot-judgment procedure in this case, the Court is avoiding a
problem it will inevitably find itself faced with time and time again in the
future.
14. Had the Court adopted a pilot judgment, it would have had the
opportunity to provide concrete indications on how this structural problem
should be resolved by suggesting what general measures the respondent
State should implement. This would also have helped the Committee of
Ministers in examining the execution of these judgments. The Court need
not have invented solutions to this problem. Not only has the Court itself
already “provided a comprehensive outline of the issues that need to be
addressed”, it has also already noted “the counterbalancing measures [the
Russian courts] need to put in place” to resolve the issue (see paragraph 48
of the judgment, citing Yevdokimov and Others, cited above, §§ 33-48). As
in previous pilot judgments, the Court could have asked the respondent
State for an action plan of measures to be implemented that would be able to
address the issues that such widespread problems have created. The Court
could then have adjourned for a set period of time (for example, one year)
all proceedings in cases not yet communicated to the respondent
Government, to give the State the opportunity to prepare such a plan and to
begin to implement the required measures (see, for instance, Torreggiani
and Others v. Italy, nos. 43517/09 and 6 others, points 4 and 5 of the
operative provisions, 27 May 2013).
15. The Court could have also looked to the Russian judiciary for
guidance on what measures were required. Both the Constitutional Court
and Supreme Court have provided lower courts with directions on how to
solve the structural problem (see paragraph 47 of the judgment). The pilot
judgment would simply have turned these suggestions into concrete
indications that the Russian Government would then have been required to
implement. Rather than waiting and hoping that the respondent Government
would follow the suggestions, the Court could have indicated more concrete
 IGRANOV AND OTHERS v. RUSSIA JUDGMENT – SEPARATE OPINION 21

solutions. A particular feature of the Russian legal system is that the rules of
civil procedure stipulate that proceedings must be concluded orally
(Article 157 of the Code of Civil Procedure), and make no provision for
dispensing with an oral hearing or conducting the proceedings in writing
(Articles 155, 327 (currently in force) and 350 (formerly in force) of the
Code of Civil Procedure; see also Yevdokimov and Others, cited above,
§ 27). The right to be present in person is not, in principle, subject to any
formalities and parties need not seek leave from the court to appear in order
to attend a hearing (see Yevdokimov and Others, cited above, § 28). These
rules prevent Russian courts from adjudicating any claims or disputes
without holding a hearing and grant all parties a right to attend and to make
submissions to the bench orally (ibid., § 30). Nevertheless, despite this
structural feature of the Russian legal system, it would not be impossible to
find a practical solution to ensure that all individuals have an opportunity to
present their case orally. Making oral submissions before a court does not
necessarily mean that a party must physically be present in the courtroom.
Alternative measures, such as video-conferencing where distance or security
issues make hearings in person particularly difficult, could ensure that the
applicants’ rights are upheld and could provide some flexibility to the
domestic courts.

V. Conclusion

16. The Court’s hesitation in adopting a pilot judgment in this case is

ultimately detrimental to both the Court itself and the numerous applicants
that will continue to appeal to it for relief they are unable to obtain in their
domestic courts as a result of a system-wide shortcoming in the Russian
judicial system. Had the Court formulated concrete general measures
through the application of the pilot-judgment procedure, it would have
lightened its load by dismissing repetitive applications and ensured speedier
and appropriate redress at the domestic level. The Court was in a perfect
position to require concrete measures from the respondent Government to
ameliorate the systemic issues, while still providing the Government with
time and flexibility. By failing to do so, the Court has allowed the systemic
problems to continue and has created a heavier workload of repetitive
incoming cases on this issue.
 22 IGRANOV AND OTHERS v. RUSSIA JUDGMENT – APPENDIX

APPENDIX

No Application Lodged on Applicant’s name First-instance First-instance court Appeal hearing Appeal court
no. Date of birth hearing date date
Representative

1. 42399/13 20/05/2013 Dmitriy Aleksandrovich 24 January 2013 Leninskiy District 16 May 2013 Vladimir Regional
IGRANOV Court of the Court
21/06/1975 Vladimir Region

2. 24051/14 23/05/2014 Yuriy Aleksandrovich 13 November 2013 Promyshlennyy 1 April 2014 Smolensk Regional
ZHUNDO District Court of Court
28/01/1973 Smolensk
Represented by
Ms O. Druzhkova
3. 36747/14 25/06/2014 Dmitriy Aleksandrovich 5 August 2013 Bagrationovskiy 25 December Kaliningrad
KHVOROSTYANOY District Court of the 2013 Regional Court
10/07/1979 Kaliningrad Region

4. 60710/14 12/11/2014 Igor Valeryevich 29 January 2014 Leninskiy District 19 June 2014 Voronezh Regional
KUZNETSOV Court of Voronezh Court
23/07/1971
 IGRANOV AND OTHERS v. RUSSIA – APPENDIX 23

No Application Lodged on Applicant’s name First-instance First-instance court Appeal hearing Appeal court
no. Date of birth hearing date date
Representative

5. 3741/15 21/12/2014 Sergey Aleksandrovich 8 August 2014 Chernyakhovsk 24 September Kaliningrad

SIVERKOV Town Court of the 2014 Regional Court
28/05/1965 Kaliningrad Region

6. 7615/15 23/03/2015 Anton Aleksandrovich 8 April 2014 Zavodskoy District 30 September Saratov Regional
SULIMOV Court of Saratov 2014 Court
07/12/1983

7. 24303/15 17/04/2015 Andrey Igorevich 11 November 2013 Tsentralnyy District 24 September Khabarovsk
RESIN Court of Khabarovsk 2014 Regional Court
29/07/1974
Represented by
Mr A. Molostov
8. 24307/15 30/04/2015 Sergey Vasilyevich 8 October 2014 Medvezhyegorskiy 12 December Supreme Court of
MALYGIN District Court of the 2014 the Kareliya
26/08/1973 Kareliya Republic Republic
Represented by
Ms N. Radnayeva
9. 24605/15 13/04/2015 Dmitriy Gennadyevich 7 August 2014 Gvardeyskiy District 12 November Kaliningrad
LUPANSKIY Court of Kaliningrad 2014 Regional Court
07/07/1975
Represented by
Ms V. Bokareva