FIFTH SECTION

DECISION

Application no . 59927/08 Anatoliy Yosypovych BATS against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 24 January 2017 as a Chamber composed of:

Angelika Nußberger, President, André Potocki, Faris Vehabović, Síofra O ’ Leary, Carlo Ranzoni, Mārtiņš Mits, judges, Sergiy Goncharenko, ad hoc judge, and Milan Blaško, Deputy Section Registrar ,

Having regard to the above application lodged on 26 November 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Anatoliy Yosypovych Bats, is a Ukrainian national who was born in 1947 and lives in Balta.

2 . The applicant was represented by Mr V. Kutsokon, a lawyer practicing in Stara Synyava of the Khmelnytsk Region. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice.

3 . Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Fifth Section decided to appoint Mr S. Goncharenko to sit as an ad hoc judge (Rule 29 § 1(b)).

A. The circumstances of the case

4 . The facts of the case, as submitted by the parties, may be summarised as follows.

5 . Between 1993 and 2005 the applicant was dismissed several times from his position as chief forester at Balta Forestry and reinstated following court proceedings.

6 . On 22 December 2005 the applicant was again dismissed from his position for inadequate performance of his professional duties.

7 . On 17 January 2006 the applicant instituted civil proceedings in the Baltskiy District Court to be reinstated and claiming various payments in compensation.

8 . On 21 February 2007 the District Court allowed the applicant ’ s claims in part. In particular, it found that the defendant, Balta Forestry, had failed to substantiate its allegations that the applicant ’ s performance at work had been inadequate and ordered his reinstatement. It also awarded him part of the sum claimed in compensation.

9 . The defendant appealed, maintaining that the applicant had been dismissed lawfully.

10 . On an unspecified date the Odessa Regional Court of Appeal (“the Court of Appeal”) scheduled a hearing for 27 September 2007.

11 . On 13 September 2007 the Court of Appeal sent to the applicant, by registered mail with acknowledgement of receipt, an envelope which the applicant received on 15 or 16 September 2007 (see paragraph 13 below).

12 . A copy of the envelope submitted to the Court bears no indication of its contents and the parties disagree as to those contents:

(a) according to the Government, the envelope contained a summons to the hearing on 27 September 2007;

(b) according to the applicant, the envelope contained only the following two documents: (i) a letter dated 1 September 2007 from a clerk of the Court of Appeal informing the applicant that an appeal had been lodged and asking him to submit written comments by 21 September 2007. A copy of this letter has been submitted to the Court: it makes no mention of a hearing; and (ii) a copy of the defendant ’ s appeal.

13 . The applicant received the envelope on 15 or 16 September 2007. A copy of the acknowledgement slip provided to the Court by the Government contains a signature, purportedly that of the applicant, and a handwritten note, “27.09.07”, in the field of the slip for the “collect payment on delivery” arrangements. According to the applicant, even though he received the envelope, he was not familiar with the contents of the slip, did not sign it and the signature appearing on it was not his.

14 . According to an undated certificate issued by the Court of Appeal ’ s clerk, on 3 (sic) September 2007 both the applicant and the defendant were informed of the hearing, to be held at 2 p.m. on 27 September 2007.

15 . On an unspecified date the applicant lodged written comments with the Court of Appeal in reply to the appeal.

16 . On 27 September 2007 the Court of Appeal examined the case in the applicant ’ s absence but in the presence of the defendant ’ s representative, who gave oral submissions to the effect that he maintained the appeal. The court found no reason warranting an adjournment on account of the applicant ’ s absence as the applicant had not filed any such request and had been duly notified of the time of the hearing. It examined the evidence in the file and the applicant ’ s written comments.

17 . On the same date the court reversed the judgment of the trial court. Having looked again at the evidence, it concluded that the applicant had systematically failed to carry out his professional duties and had therefore been lawfully dismissed.

18 . In November 2007 the applicant appealed in cassation, arguing that he had performed his professional duties properly. The applicant also complained that the appellate court had had no basis whatsoever to state that he had been duly notified of the appeal hearing. The only judicial correspondence he had received in connection with the preparation of the appeal hearing had contained a copy of the other party ’ s appeal. He had never been served with any summonses for the hearing informing him of its date and time. As a result, he had been deprived of the opportunity to confront his adversary before the Court of Appeal, which had led to the reversal of the earlier judgment in his favour.

19 . On 11 June 2008 the Supreme Court dismissed the applicant ’ s application for leave to appeal, concluding that the Court of Appeal had complied with the substantive and procedural law in adjudicating the applicant ’ s case.

20 . On 17 March 2010 the District Court refused to provide the applicant with a copy of the summons notifying him about the appeal hearing or evidence that such a summons had been delivered, stating that there were no such documents in the case file.

21 . Following communication of the case to the respondent Government, on 15 August 2013 the District Court informed the Government Agent ’ s office that there was no summons for the hearing at the Court of Appeal in the case file because it had been sent to the applicant. The case file contained an acknowledgment slip showing that the summons in question had been served on the applicant in person.

B. Relevant domestic law

22 . The relevant provisions of the Code of Civil Procedure of 2004 as worded at the material time read as follows:

Article 74. Judicial summonses

“1. Parties to proceedings shall be summoned via judicial summonses ( повістками про виклик ) ...

4. A judicial summons shall be served in a manner that provides the persons summoned with sufficient time to appear before the court and to prepare for taking part in the judicial examination of the case, but it shall be served no later than seven days before the court session ...

5. A judicial summons and a slip acknowledging receipt ... shall be delivered by registered mail ... or via couriers to the address declared by the party or another person engaged in the proceedings. A party or his/her representative upon their consent may be given a judicial summons to be served on the respective participants of civil proceedings ...”

Article 76. Rules concerning the service of judicial summonses

“1. A judicial summons addressed to an invidual shall be handed to them against their signature ...

2. The slip acknowledging receipt of a summons with a mention of the date of service shall be returned ... to the court on the same day ... ”

Article 305. Consequences of failure to appear at a hearing

“1. The appellate court shall adjourn should a party fail to appear, where there is no information about whether he/she has been served with the summons ...

2. Failure to appear by the parties or other persons engaged in the proceedings who have been duly notified of the time and place of the examination of the case shall not prevent the [the court] from examining the case.”

Article 338. Grounds for quashing a decision and remittal of case for fresh examination

“1. A court decision must definitely be quashed and the case remitted for fresh examination if: ...

3) the case was examined in the absence of any person engaged in the proceedings who was not duly notified of the time and place of the hearing; ...

2. Other instances of a breach or incorrect application of procedural rules may only be grounds for quashing a court decision where the breach has resulted in incorrect adjudication of the case ...”

23 . By Resolution no. 1155 of 17 August 2002 the Cabinet of Ministers enacted a set of Postal Rules, which were in effect at the material time and which were repealed on 5 March 2009. Point 20 of the Rules provided that summonses were to be accepted for delivery by registered mail, with an acknowledgement of receipt, in envelopes which bore the words “Judicial summons”.

COMPLAINTS

24 . The applicant complained under Article 6 of the Convention that the proceedings concerning his reinstatement had been unfair. In particular, he had not been duly notified of the time of the appeal hearing and had not been able to confront his adversary in the appeal proceedings.

25 . The applicant additionally complained under Article 3 that being subjected to numerous dismissals and reinstatements had been inhuman and degrading.

THE LAW

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

26 . The applicant complained that the proceedings concerning his reinstatement had been unfair in that he was not duly notified of the time of the appeal hearing and had not been able to confront his adversary in the appeal proceedings. He relied on 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 ...”

1. The parties ’ submissions

27 . The Government submitted copies of the acknowledgment of receipt slips from the domestic case file showing that correspondence had been sent to the applicant and the defendant on 13 September 2007 and had been received by them on 15 and 18 September 2007 respectively. According to them, the slips were proof that the applicant, like the defendant, had been informed about the Court of Appeal ’ s hearing in due time . That was additionally corroborated by the fact that the defendant ’ s representative, who had been summoned at the same time and in the same manner, had appeared at the hearing. The District Court had correctly informed the applicant on 17 March 2010 that there was no copy of the summons in the case file. That was because the summons had been sent to the applicant. At the hearing the Court of Appeal had examined the question of whether the applicant had been duly notified of the hearing and had concluded that he had been so notified. The applicant had raised the same arguments before the Supreme Court. However, that court, having examined the case file, found no reasons to doubt the conclusions of the Court of Appeal on that point. The Government maintained, accordingly, that the applicant ’ s complaint was manifestly ill-founded.

28 . The applicant stated that he had only received one letter from the Court of Appeal, which had just contained a copy of the defendant ’ s appeal, and that he had never been informed about the date and time of the hearing. He pointed out that the District Court ’ s letter of 17 March 2010 supported his account. He further stressed the fact that contrary to the regulations on the posting of summonses there had been no “judicial summons” note on the envelope he had received from the Court of Appeal. In his view that showed that there had been no summons in the envelope sent by the Court of Appeal. He also stressed that the signature on the acknowledgment slip was not his and he had not known what was on the slip.

2. The Court ’ s assessment

29 . The Court reiterates that the principle of equality of arms, which forms a component of the broader concept of a fair hearing, requires that each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis ‑ Ã ‑ vis his opponent (see Dombo Beheer B.V. v. the Netherlands , 27 October 1993, § 33, Series A no. 274). The principle of equality of arms would be devoid of substance if a party to a case were not notified of a hearing in such a way as to have an opportunity to attend it (see Zagorodnikov v. Russia , no. 66941/01, § 30, 7 June 2007). However, Article 6 cannot be construed as conferring on litigants an automatic right to obtain a specific form of service of court documents (see Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004).

30 . The Court observes that the applicant in the present case was able to present his case in person before the first-instance court and to comment on the defendant ’ s submissions. The applicant did not, however, attend the hearing before the Court of Appeal at which both questions of fact and law were examined in the presence of the defendant ’ s representative who made oral submissions at the hearing. Therefore, the Court must determine whether the applicant was duly informed about that hearing.

31 . The Court notes at the outset that, contrary to many other cases examined by the Court where there was no evidence in the case file that any correspondence had been sent to the applicants by domestic courts (see, for example, Strizhak v. Ukraine , no. 72269/01, § 39, 8 November 2005; Pirali Orujov v. Azerbaijan , no. 8460/07, §§ 19 and 41, 3 February 2011; Fyodorov and Fyodorova v. Ukraine , no. 39229/03, § 100, 7 July 2011; Gankin and Others v. Russia, nos. 2430/06, 1454/08, 11670/10 and 12938/12, § 42, 31 May 2016 ), in the present case it is not in dispute that the applicant received an envelope by post from the Court of Appeal.

32 . However, the parties are in disagreement as to whether the envelope contained a summons to the Court of Appeal ’ s hearing of 27 September 2007. The Government say it did, while the applicant asserts that it did not.

33 . It is true that some elements of the case file tend to support the applicant ’ s allegations and throw some doubt on the Government ’ s account.

(i) Firstly, under domestic postal regulations a letter containing a summons had to bear the words “judicia l summons” on the envelope (see paragraph 2 3 above). A copy of the envelope which the applicant provided to the Court, the authenticity of which the Government did not contest, does not contain any such mark. There is no explanation for that omission.

(ii) Secondly, in its letter of 17 March 2010 the first-instance court informed the applicant that the domestic case file did not contain any summons to the appellate hearing or acknowledgement slips. After communication of the present application to the Government, the same court sought to explain the absence of the summons in the case file by stating that it had been sent to the applicant and that no copy had been kept. However, the court did not explain why its letter of 17 March 2010 had also stated that there were no acknowledgment slips in the case file at that point.

(iii) Thirdly, the applicant alleged and the Government did not specifically deny that the envelope dispatched on 13 September 2007 contained a copy of appeal and the letter dated 1 September 2007 which invited the applicant to submit comments on the appeal (see paragraph 12 (b) (i) above). However, the Government asserted that it also contained summons to the hearing of 27 September 2007. It appears surprising that the cover letter supposedly sent in the same envelope with the summons failed to mention the summons or, indeed, the hearing itself.

(iv) Fourthly, there are contradictions in various official documents as to the exact date on which the applicant was notified of the hearing of the Court of Appeal. According to a certificate issued by that court ’ s clerk, the applicant was summoned to the hearing on 3 September 2007 while the postal slip indicates that the summons was sent on 13 Se ptember 2007 (see paragraphs 14 and 1 3 respectively).

34 . Despite those elements, the Government furnished some documents in support of its account, most importantly an acknowledgment of receipt slip. The question of notice was examined at the hearing by the domestic Court of Appeal, which was satisfied that the applicant had been duly notified. The applicant was also able to raise his complaint concerning the allegedly defective notice of the hearing before the Supreme Court. It also appears that some contradictions, in particular the contradiction in the dates (see paragraph 3 3 (iv) above) could conceivably be explained by a simple typing error.

35 . In weighing the two contradictory accounts, the Court is aware of the subsidiary nature of its role. It is not normally within the province of the Court to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them (see, mutatis mutandis , Klaas v. Germany , 22 September 1993, § 29, Series A no. 269). Moreover, t he Court should not act as a court of fourth instance and will not question under Article 6 § 1 the judgment of national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08 , § 61, ECHR 2015 ).

36 . The Court is not convinced that the evidence in the present case is sufficient to consider the domestic courts ’ findings on the question of notice arbitrary or manifestly unreasonable.

38 . In view of the above, the Court concludes that it has not been shown that the respondent State can be held responsible for the applicant ’ s absence from the appellate hearing.

39 . Furthermore, the Court reiterates that when determining whether Article 6 of the Convention has been complied with, it must take account of the proceedings as a whole, including the appeal procedures (see, for example, Shtukaturov v. Russia , no. 44009/05, § 75, ECHR 2008, and Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey , no. 21377/03 , § 40, 21 January 2014 ). In this connection, the Court observes that the applicant was able to submit written comments in reply to the defendant ’ s appeal which were examined by the Court of Appeal. Moreover, he was able to put forward his arguments in his appeal in cassation to the Supreme Court, which had the competence to review the case, particularly the question of effective notice (see paragraph 22 above). In view of the above, the Court considers that the applicant had an adequate opportunity to advance his arguments before the domestic courts.

40 . In those circumstances the Court cannot find that the applicant was denied a fair hearing. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

B. Other complaints

41 . The Court has examined the applicant ’ s complaint under Article 3 of the Convention set out in paragraph 2 5 above. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that it does 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 is also manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 February 2017 .

Milan Blaško Angelika Nußberger Deputy Registrar President