FIFTH SECTION

Application no. 59927/08 Anatoliy Yosypovych BATS against Ukraine lodged on 26 November 2008

STATEMENT OF FACTS

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

A. The circumstances of the case

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

Between 1993 and 2005 the applicant was dismissed several times from his position as the Chief Forester in the Balta Forestry and reinstated following court proceedings.

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

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

On 21 February 2007 the District Court allowed the applicant ’ s claims in part. In particular, having found that the Balta Forestry had failed to substantiate its inadequate performance allegations, the court ordered the applicant ’ s reinstatement and awarded him part of the sum claimed in compensation.

The Balta Forestry appealed, maintaining that the applicant had been rightly dismissed.

On 27 September 2007 the Odessa Regional Court of Appeal examined the case in the applicant ’ s absence, but in presence of the Balta Forestry representative, who gave oral submissions. The court found it unwarranted to adjourn the hearing on account of the applicant ’ s absence, as the applicant had not filed any such requests, having been duly notified about the time of the hearing.

On the same date the court reversed the judgment of the trial court. It found that the applicant had systematically failed to comply with his professional duties and had therefore been lawfully dismissed.

In November 2007 the applicant appealed in cassation, arguing that he had properly performed his professional duties. The applicant also complained that the appellate court 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 in his case contained a copy of the other party ’ s appeal. No summonses for the hearing informing him of its date and time had ever been served. As a result, the applicant had been deprived of a possibility to confront his adversary before the court of appeal, which led to the reversal of the judgment given in his favour.

On 11 June 2008 the Supreme Court of Ukraine rejected the applicant ’ s request for leave to appeal in cassation, having concluded that the court of appeal had complied with the substantive and procedural law in adjudicating the applicant ’ s case.

On 17 March 2010 the District Court refused to provide the applicant with a copy of the summons notifying him about the appeal hearing, having informed him that there was no such summons in his case-file.

B. Relevant domestic law

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

Article 74. Judicial notices ( судові повістки )

“1. Summonses to court shall be effected via judicial notices-summonses ( повістками про виклик )...

4. A judicial notice-summons shall be served in a manner, providing 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 no later than seven days before the court session...

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

Article 76. Rules concerning serving judicial notices

“1. Judicial notices addressed to a physical person shall be handed to them against their signature...

2. The slip acknowledging receipt of a judicial notice with the mention of the date of service shall be returned by the persons, who handed them, to the court on the same day.

3. Should a person, to whom the judicial notice is addressed, not be found at the place of his/her residence, the notice shall be handed to any adult member of his/her family sharing the household against their signature, and, should they be absent – to the relevant housing authority or executive committee of the local self-governance authority.

4. Should the addressee be absent, the person, who delivered the judicial notice, shall immediately return it to the court with a record of the reasons why the delivery failed. ...”

Article 305. Consequences of failure to appear to the court session by persons engaged in the proceedings

“1. The appellate court shall adjourn examination of the case should a person engaged in the proceedings fail to appear, where there is no information whether he/she had been served with the judicial notice, or upon his/her request, where the reasons for [his/her] failure to appear would be recognised by the court as serious.

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

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

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

3) the case was examined in absence of any person engaged in the proceedings, who was not duly notified about the time and location of the court session; ...

2. Other instances of breaching or incorrect application of the procedural norms may be the ground for quashing of the court decision only where the breach resulted in incorrect adjudication of the case...”

COMPLAINTS

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

The applicant additionally complains under Article 3 of the Convention that living through numerous dismissals and reinstatements was inhuman and degrading.

QUESTION TO THE PARTIES

Were the requirements of a fair trial as envisaged by Article 6 § 1 of the Convention observed in the applicant ’ s case? In particular, was the examination of the applicant ’ s case on appeal in his absence compatible with the principle of equality of arms within the meaning of Article 6 § 1 of the Convention regard being had to his allegations that he had not been served a summons notifying him of the time of the appeal hearing (see e.g. Dombo Beheer B.V. v. the Netherlands , judgment of 27 October 1993, Series A no. 274, p. 19, § 33, Strizhak v. Ukraine , no. 72269/01, §§ 38-41, 8 November 2005 and Zagorodnikov v. Russia , no. 66941/01, § 30, 7 June 2007)?