CASE OF GUSAK v. RUSSIA
Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
5. The applicant was born in 1940 and lives in Sochi. 6. On 13 May 2002 the applicant’s husband entered into an agreement with a building company. Under the terms of the contract the company had to build within twelve months an individual house in accordance with the approved project, and the applicant’s husband had to pay them the price of the house in monthly instalments. 7. On 25 January 2003 the applicant’s husband died. 8. The building company sued the applicant and her daughter (heirs to the applicant’s husband) seeking to recover the contract arrears and to invalidate their title to the unfinished construction project. 9. On 20 December 2004 the Tsentralniy District Court of Sochi (“the District Court”) granted the company’s claims. The applicant appealed. The appeal hearing was scheduled for 21 April 2005. 10. During the hearing of 21 April 2005 the Krasnodar Regional Court (“the Regional Court”) decided to postpone the appeal hearing at the request of the plaintiff. The applicant’s representative was present. According to the applicant, the Regional Court did not specify the date of the next hearing. 11. On 27 April 2005 the court notified the applicant that the hearing had been adjourned to 12 May 2005. The applicant received that notification on 12 May 2005, the very date of the hearing. The postmark on the envelope submitted by the applicant showed that it had reached her on 12 May 2005. The Regional Court upheld the judgment on appeal in the absence of the applicant and her representative. It follows from the appeal decision of 12 May 2005 that the other party was present at the hearing and made oral submissions. 12. On 9 June 2005 the applicant requested the Regional Court to re-examine the case, alleging that she had not been duly notified of the appeal hearing of 12 May 2005. 13. On 29 September 2005 the Regional Court dismissed the applicant’s request, finding that the materials of the case contained evidence that she had been properly notified. However, the Regional Court did not specify what evidence the case file contained. 14. In 1999 the applicant’s husband joined a building partnership with a view to acquiring a flat. From 1999 to 2002 he paid construction fees. 15. Following her husband’s death in January 2003 the applicant brought proceedings against the partnership, seeking to join it as a member in her husband’s stead. 16. On 17 October 2003 the District Court granted the applicant’s claim. On 2 December 2003 the Regional Court upheld that judgment on appeal. 17. On 10 June 2004 the Presidium of the Regional Court quashed the above decisions by way of supervisory review and remitted the case for a fresh examination. 18. On 19 April 2005 the District Court granted the applicant’s claim. However, on 21 June 2005 the Regional Court quashed the judgment on appeal and remitted the case for a fresh examination. 19. On 21 August 2006 the District Court dismissed the applicant’s claims. On 26 October 2006 the Regional Court upheld the judgment on appeal. 20. The Code of Civil Procedure of the Russian Federation (“the CCP”, in force from 1 February 2003) reads as follows: “1. Parties ... are to be summoned to court by a letter sent via registered mail with an acknowledgment of receipt, a court summons with an acknowledgment of receipt, a telegram, by phone or fax or by any other means of communication which guarantees recording of the fact that the court summons or notifications were received by the parties. 2. A court summons is one of the forms of court notification. Parties are notified by court summons of the date and place of a court hearing or of particular procedural actions ... 3. A summons or another form of notification is to be served on parties in such a way [as to ensure] that they have enough time to prepare their case and to appear at the hearing. 4. A court notification addressed to a party is to be sent to the address indicated by that party or his/her representative. If the party does not reside at the indicated address, the court summons may be sent to his or her place of work ...” “1. Court summons and other notifications are to be sent by mail or delivered by a person authorised by the court to deliver them. The time of service is to be recorded as laid down by post office regulations or on a document which is to be returned to the court. 2. With a party’s consent, a judge can serve him/her with summons or notifications to be delivered to another party. A person authorised by the judge to deliver a court summons or another notification is to return a counterfoil of the summons or a copy of the notification bearing the addressee’s signature recording receipt.” “1. A court summons ... to a person is to be served on him or her against his or her signature on a counterfoil of the summons, which is to be returned to the court ...” “1. Upon the receipt of the statement of appeal ... the judge shall: 1) send to the parties copies of the statement of appeal and the enclosed written documents not later than the day after their receipt; 2) notify the parties of the time and place of the appeal hearing ...” “1. If a party to the case fails to appear and there is no evidence that the party was duly summoned, the hearing is to be adjourned ...”