Last Updated on May 11, 2019 by LawEuro
Communicated on 14 November 2018
FOURTH SECTION
Application no. 32135/09
Igor Pavlovych KOSYAN
against Ukraine
lodged on 2 June 2009
STATEMENT OF FACTS
The applicant, Mr Igor PavlovychKosyan, is a Ukrainian national who was born in 1968 and lives in Mykhaylivka-Rubezhivka.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In August 2004 the applicant’s father died and the applicant inherited the right to a plot of land that had not been allotted in kind.
In March 2005 the applicant issued a power of attorney authorising Mr G. to allot a part of this plot of land in kind, privatise it and sell it.
On 2 November 2005 title to the plot of land was issued in the name of the applicant.
On 22 November 2005 Mr G., acting on behalf of the applicant, concluded a sale and purchase contract with his son and sold him the plot of land (hereinafter “the contract”).
On 10 October 2006 the applicant cancelled the power of attorney.
In August 2007 the applicant made a claim seeking to have the contract invalidated and to take possession of the plot of land. In particular, the applicant claimed that Mr G. had exceeded his authority, privatised a plot of land located in another place than stated in the power of attorney, and failed to pass on to him the money he should have received under the contract.
On 9 November 2007 the Irpin City Court, Kyiv Region, allowed the applicant’s claim.
The defendant appealed to the Kyiv Regional Court of Appeal.
On 25 February 2008 the applicant and his two representatives sent telegrams to the Court of Appeal asking for the hearing to be adjourned, on the grounds that the two representatives could not be present. One of the representatives referred to the death of a close relative and his wish to attend the funeral, while the other indicated a knee injury and her inability to move. The applicant supported his request with a statement that he was unable to adequately defend himself because he did not have legal assistance.
On 26 February 2008, at the hearing before the Kyiv Regional Court of Appeal, a judge asked the opinion of a representative of the defendant about the request for adjournment, and the representative responded “the reasons of some [representatives for their absence] were compelling”. The appellate court, on the contrary, found the reasons for absence not compelling, on the grounds that the representatives had failed to produce relevant documents in support of their requests. It then quashed the decision of the first-instance court and rejected the applicant’s claim.
On 3 December 2008 the Supreme Court of Ukraine upheld the decision of the appellate court, declaring that the impugned power of attorney was valid and referring to a statement by the applicant’s representative before the Court of Appeal to the effect that the applicant had received money under the disputed contract. The court did not comment on the applicant’s absence from the hearing before the Court of Appeal.
B. Relevant domestic law
The relevant provisions of the Code of Civil Procedure of 2004 read as follows:
Article 305 – Consequences of the failure of parties to appear
before the court at the hearing of the case
“1. The appellate court shall adjourn the hearing in the event that any of the parties fail to appear, where there is no information whether a party has been served with a summons, or upon his/her request, where the reasons for [his/her] failure to appear would be assessed by the court as serious.
2. Failure to appear by the parties or by other persons engaged in the proceedings who have been duly notified of the time and location of the examination of the case shall not preclude the [court] from examining the case.”
Article 338 – Grounds for quashing the decision and remittal
of the case for a new examination
1. A judicial decision is subject to mandatory quashing and remittal for a new examination if:
…
3) the case was examined in the absence of one of the parties, who had not been duly notified of the time and venue 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 …””
COMPLAINT
The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention that the hearing before the Kyiv Regional Court of Appealof 26 February 2008 was held in his and his representatives’ absence, and that the domestic courts failed to establish the fact that he had not received money as a result of the sale of his plot of land.
QUESTIONS TO THE PARTIES
1. 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, was the principle of equality of arms respected, given that the hearing of 26 February 2008 before the Kyiv Regional Court of Appeal was held in his and his representatives’ absence?
2. In view of the answer to question 1, was the positive obligation of Ukraine under Article 1 of Protocol No. 1 fulfilled, namely to afford judicial procedures that offer the necessary procedural guarantees enabling the domestic courts and tribunals to adjudicate disputes effectively and fairly?
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