Published on 10 July 2023

FIFTH SECTION

Application no. 71511/16 Sergiy Valeriyovych ODINOKOV against Ukraine lodged on 20 November 2016 communicated on 21 June 2023

SUBJECT MATTER OF THE CASE

The application concerns the right to a fair hearing. In particular, the applicant complains that on 21 April 2016 the Kirovograd Regional Commercial Court heard a case involving him in his absence and ruled against him, ordering him to reimburse UAH 55 000 to the plaintiff, an insurance company. The first-instance court stated that a registered letter with a copy of a decision to open the proceedings and a summons to the hearing had been sent to the applicant’s home address and was returned as undelivered. The court proceeded with the hearing without the applicant being present, relying on Article 64 of the Code of Commercial Procedure, which stated, inter alia , that when a letter had been sent to a home address indicated in a Unified State Register of Legal Entities and Individual Entrepreneurs and was returned undelivered, the person in question had to be considered as having been informed of the hearing.

On 11 May 2016 the applicant appealed and asked for the restoration of the time-limit for an appeal, as he had received the decision of the Kirovograd Regional Commercial Court dated 21 April 2016 – the full version of which was prepared on 25 April 2016 – only on 10 May 2016 (whereas the deadline for appeal was ten days counting from the date of the full version of the decision).

On 9 August 2016 the Dniprovskyi Commercial Court of Appeal, having restored the time-limit, refused to admit crucial evidence presented by the applicant – the expert report no. 3311-15 of 16 February 2016 – on the grounds that he had failed to submit this report to the first-instance court and not provided any compelling reason for not doing so. On 26 October 2016 the Higher Commercial Court of Ukraine upheld the decisions of the lower courts.

The applicant complains under Article 6 of the Convention that his right to a fair hearing was breached, as he was not aware of the proceedings and the hearing of 21 April 2016. He alleged that he only learned about the proceedings when he received the decision by post and that was thus prevented from participating in that hearing and presenting his case. Moreover, the Dniprovskyi Commercial Court of Appeal refused to admit crucial evidence to his case without any valid ground.

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing, in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular:

a) was the applicant afforded a reasonable opportunity to present his case ‑ including evidence – under the conditions that did not place him at a substantial disadvantage vis-à-vis his opponent before the Dniprovskyi Commercial Court of Appeal (see, mutatis mutandis, Dulaurans v. France , no. 34553/97, § 33, 21 March 2000; Suominen v. Finland , no. 37801/97, § 33, 1 July 2003; Prebil v. Slovenia , no. 29278/16, § 42, 19 March 2019)?

b) were the reasons put forward by the Dniprovskyi Commercial Court of Appeal for its decision not to admit the expert report no. 3311-15 of 16 February 2016 devoid of arbitrariness (see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015)?