Last Updated on May 11, 2019 by LawEuro
Communicated on 14 November 2018
FOURTH SECTION
Application no. 795/09
Oleksandr Sergiyovych OSIPOV
against Ukraine
lodged on 10 December 2008
STATEMENT OF FACTS
The applicant, Mr OleksandrSergiyovychOsipov, is a Ukrainian national, who was born in 1959 and lives in Kherson.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 6 March 2005 the applicant’s car was stolen.
On the same day an investigator from a local police station opened a criminal investigation in this connection.
In August 2005 the applicant filed a civil claim with the Suvorivskyy District Court of Kherson seeking compensation for pecuniary damages from the State, relying on Article 1177 of the Civil Code of Ukraine, which provides for compensation for pecuniary damage to be paid by the State to victims of crime if the perpetrator of the offence is not identified or is insolvent.
On 20 October 2005 the Suvorivskyy District Court of Kherson rejected the applicant’s claim on the ground that the pre-trial criminal proceedings were still pending and there was a chance that the perpetrator would be found. In addition, the court pointed to the absence of a special law establishing a mechanism for enforcing the provisions of Article 1177.
On 26 December 2005 the Kherson Regional Court of Appeal upheld the decision of the first-instance court.
The applicant appealed in cassation, complaining that he had not received notification of the hearing at the appellate court.
On 11 March 2008 the Kirovograd Regional Court of Appeal, acting as a court of cassation, quashed the decision of 26 December 2005, having found that the case-file materials did not contain evidence confirming that the applicant had been notified of the hearing before the appellate court. The same court remitted the case to the Kherson Regional Court of Appeal for reconsideration.
On 7 May 2008 the applicant filed a request seeking the adjournment of the hearing due to his prospective in-patient treatment at a local hospital.
On 27 May 2008 the Kherson Regional Court of Appeal held a hearing in the absence of the applicant but in the presence of the defendant’s representatives, and upheld the decision of 20 October 2005.
The applicant appealed in cassation. He complained, inter alia, that because of his in-patient treatment from 13 to 24 May 2008 and his out‑patient treatment from 25 May to 6 June 2008 he was unable to participate in the hearing at the appellate court, and that he had not received notification of the time, date and venue of the hearing.
On 9 September 2008 the Supreme Court of Ukraine rejected the applicant’s cassation appeal as unsubstantiated.
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 participants 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 participants fail to appear, where there is no information as to whether he/she had been served with a summons, or upon his/her request, where the reasons for [his/her] failure to appear are recognised by the court as serious.
2. Failure to appear by parties or other persons involved in the proceedings who have been 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 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; …”
COMPLAINT
The applicant complains under Article 6 of the Convention that the hearing of the Kherson Regional Court of Appeal of 27 May 2008 was held in his absence, in breach of the principle of equality of arms, and that the Supreme Court of Ukraine failed to remedy this procedural violation.
QUESTIONs TO THE PARTIES
1. Did the Kherson Regional Court of Appeal respond to the applicant’s request to adjourn the hearing of 7 May 2008 and, if it did, how?
2. In the light of the answer to the question above, 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 27 May 2008 before the Kherson RegionalCourt of Appeal was held in his absence, whereas the defendant’s representatives were present?
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