BABUNIDZE v. RUSSIA
Inadmissible
Christos Rozakis
The applicant, Mr Bondo Archilovich Babunidze, is a Russian national who was born in 1952 and lives in Rostov-on-Don. The Russian Government (“the Government”) were represented by Mr P. Laptev, the Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. In 2002 Mr N. lodged an action against the applicant seeking repayment of a loan. The Myasnikovskiy District Court of the Rostov Region listed the first hearing for 11 March 2002. The applicant informed the District Court that he was unable to attend because he was in hospital. He asked for a stay of the proceedings. The hearing of 11 March 2002 was adjourned and rescheduled for 19 March 2002. According to the Government, the District Court sent a summons to the applicant notifying him of the hearing. According to the applicant, he was not summonsed to that hearing. On 19 March 2002 the Myasnikovskiy District Court upheld Mr N.’s action in the applicant’s absence and ordered that the applicant should repay him the loan and interest thereon. Mr N.’s representative attended the hearing and made oral submissions. On 15 May 2002 the Rostov Regional Court quashed the judgment and remitted the case for fresh examination. The President of the Rostov Regional Court lodged an application for supervisory review of the judgment of 15 May 2002. On 4 July 2002 the Presidium of the Rostov Regional Court, by way of supervisory-review proceedings, quashed the judgment of 15 May 2002 and upheld the judgment of 19 March 2002. On 14 October 2003 the Supreme Court of the Russian Federation, on a petition by the applicant for supervisory review, quashed the judgment of 4 July 2002 and upheld the judgment of 15 May 2002. The Supreme Court, in so far as relevant, held as follows: “...it appears from the case materials [that] the first-instance court examined the case in the absence of the defendant. The judgment of the Myasnikovskiy District Court of the Rostov Region was quashed on appeal, and the case was sent for re-examination. The judgment of the appellate court stated that the judgment of the [District] court was to be quashed because it had been made in violation of the requirements of Article 157 of the RSFSR Code of Civil Procedure. In particular, there was no evidence in the case file that Mr Babunidze had received a telegram containing information on the date of the hearing, which is a ground for quashing a judgment according to paragraph 2 of Article 306 of the RSFSR Code of Civil Procedure. ... The judgment of 4 July 2002 of the Presidium of the Rostov Regional Court should be quashed because it was issued in violation of the procedural legal norms. Pursuant to Article 106 of the RSFSR Code of Civil Procedure, in force at the material time, parties to the proceedings and their representatives should be informed by a court summons about the time and place of a court hearing or about other procedural actions... A summons should be served on the parties and their representatives in such a way [as to ensure] that they have enough time to prepare their case and arrive at the court. Pursuant to Article 157 of the RSFSR Code of Civil Procedure, where a party fails to appear and there is no evidence that he/she was properly summonsed, the court hearing is to be adjourned. Pursuant to Article 308 § 2 of the RSFSR Code of Civil Procedure, examination of a case in the absence of a party which was not properly notified of the date and place of the court hearing is an unconditional ground for the quashing of a judgment. There is no evidence in the file that Mr Babunidze was notified of the time and place of the court hearing, [and] thus the appeal judgment by which the District Court’s judgment, made in violation of Article 157 of the RSFSR Code of Civil Procedure, was quashed, is lawful and substantiated. The Presidium of the Rostov Regional Court had no grounds for quashing it. ” The case file was returned to the Myasnikovskiy District Court. After receiving the case file, the court fixed several hearings. According to the Government, the applicant was summonsed to the hearings but failed to appear on every occasion. In particular, the District Court fixed five hearings in June 2005, five in July 2005, three in August and four in September 2005. The applicant did not attend, motioning the District Court to stay the proceedings because he was undergoing outpatient treatment for hypertension. The District Court listed a hearing for 3 October 2005. The applicant again asked the District Court to adjourn the hearing, alleging that he had sustained an injury and could not attend. The District Court asked the hospital for information on the applicant’s state of health. On 6 October 2005 the hospital replied that the applicant had complained to a doctor about pain in a knee-joint and that that injury was not serious enough to have prevented him from participating in the hearing of 3 October 2005. The following hearing was fixed for 10 October 2005. The District Court sent a telegram to the applicant’s home address, notifying him of the hearing. The telegram could not be delivered because the applicant was not at home. A postman left a notice in the applicant’s mail box, informing him about the telegram and noting that it had been sent by the District Court. The applicant failed to retrieve the telegram. On 10 October 2005 the Myasnikovskiy District Court held a hearing. The applicant did not attend. The District Court considered that he had been properly summonsed and delivered judgment in Mr N.’s favour. The District Court held, in particular: “By virtue of Article 113 of the RF Code of Civil Procedure, parties to the proceedings are to be summonsed to a hearing by a letter sent by registered mail with an acknowledgment of receipt, by a court summons with an acknowledgment of receipt, by a telegram, by phone or fax or by any other means which can guarantee the recording of the fact that the summons was sent and was received by the party. Parties must inform the court of changes to their address during the proceedings. If a party fails to notify the court of such a change, a court summons is to be sent to the addressee’s last known address and is considered to be delivered even if the addressee no longer lives or resides there (Article 118 of the Code of Civil Procedure). At the last court hearing in which the defendant participated on 23 May 2005, he indicated the following address as his residence... This circumstance is also confirmed by the address certificate of 12 September 2005, enclosed in the case file. Under Article 118 of the Code of Civil Procedure, the applicant was under an obligation to inform the court of any change in his address during the proceedings, but did not do this. Having regard to the above considerations, the court finds that under Article 118 of the Code of Civil Procedure, the summons in the form of the telegram which was sent to the defendant’s last known address, was delivered to him and considers it possible to examine the case in Mr Babunidze’s absence, in accordance with Article 167 of the Code of Civil Procedure.” The applicant appealed against the judgment, alleging defective notification of the hearing of 10 October 2005. The Rostov Regional Court accepted the statement of appeal and fixed a hearing for 30 November 2005. The applicant was summonsed. However, he asked the Regional Court to adjourn the appeal hearing on account of his ill-health. On 30 November 2005 the Rostov Regional Court upheld the judgment of 10 October 2005 in the applicant’s absence. It addressed in detail the applicant’s complaint about the defective notifications to the hearings before the District Court. The Regional Court again confirmed that the telegram had been sent to the applicant, notifying him of the hearing on 10 October 2005. It had not been delivered because the applicant had not been at home. He had not responded to the note about the telegram. Furthermore, the applicant had been aware that the hearing of 3 October 2005 had been adjourned at his request, submitted on the same day. He had had an opportunity to ask the District Court about the date of the following hearing but had failed to do so. Furthermore, the Regional Court pointed out that, during the re-examination of the case following the quashing of the judgment of 4 July 2002, the applicant had failed to attend more than fifteen hearings over the previous five months. He had been properly summonsed to every one of them and had had an opportunity to appoint a representative. However, he had persistently lodged motions for adjournment on the ground that he had been undergoing outpatient treatment. At the same time, he had not submitted any evidence showing that he had been unable to take part in the hearings due to his state of health. Furthermore, the applicant had not attended the hearing on 3 October 2005, complaining about an injury, although it subsequently became clear that he had been fit to take part. The Regional Court concluded that the applicant had abused his procedural rights and had procrastinated in the proceedings. The District Court had had no choice but to issue the judgment in his absence. The Regional Court dismissed the request for an adjournment of the appeal hearing, holding as follows: “On 30 November 2005 Mr Babunidze did not attend the appeal hearing before the Rostov Regional Court. He filed a written petition for an adjournment of the appeal proceedings on the ground that he was ill. He submitted a certificate issued on 29 November 2005 by Rostov town hospital no. 9, confirming that Mr Babunidze had several illnesses, including hypertension, stenocardia, etc., on the basis of which he was recommended for outpatient treatment. The representative [of the plaintiff] objects to the adjournment, insisting that the defendant systematically defaults, referring to various illnesses from which he suffers, and that he intentionally procrastinates in the examination of the present case. In accordance with Article 354 of the Code of Civil Procedure, by virtue of which the absence of a party properly notified of the date and place of a court hearing does not prevent an appellate court from examining the case, and having regard to the fact that there is no evidence that [Mr Babunidze’s] illnesses and the state of his health on 30 November 2005 prevented him or his representative from participating in the hearing (under Article 48 of the Code of Civil Procedure the defendant has a right to participate in the appeal proceedings himself or through some form of representation, including an advocate, but [the applicant] did not consider it necessary to make use of such a right), the [Regional] court decides to reject the request [for an adjournment].” 1. The RSFSR Code of Civil Procedure of 11 June 1964 (in force until 1 February 2003): “Parties and their representatives are to be notified by court summonses of the date and place of a court hearing or certain procedural actions ... A summons is to be served on parties and their representatives in such a way [as to ensure] that they have enough time to appear at the hearing and prepare their case... Where necessary, parties and their representatives... may be summonsed by a phone call or a telegram.” “Summonses are to be sent by mail or by courier. The time when the summons was served on an addressee is to be recorded on the summons and on its copy, which is to be returned to the court...” “The summons is to be served on a person against his/her signature, made on a copy of the summons, which is to be returned to the court...” “A civil case is to be heard in a court session with mandatory notification to all parties to the case...” “If a party to the case fails to appear and there is no evidence that the party was duly summonsed, the hearing is to be adjourned. If the party was duly notified of the date and place of the court hearing, the hearing is to be adjourned if the court considers that the reason for the absence is valid. A party is to inform the court of the reasons for his/her absence and provide evidence confirming the validity of the excuse. A court may examine a case in the defendant’s absence if he/she did not provide information concerning the reasons for his/her absence, if the court considers that the excuse for the absence is invalid or if the defendant intentionally delays examination of the case. A party may ask the court to examine the case in his/her absence and to provide him/her with a copy of the judgment...” “Grounds for the quashing of a court judgment on appeal and for remittance of a case for fresh examination by a first-instance court are: ... (4) violation or incorrect application of substantive and procedural legal norms...” “Violation or incorrect application of procedural legal norms shall only serve as a ground for the quashing of a judgment if such a violation led or could have led to incorrect determination of the case. A judgment is to be quashed if: ... (2) a court examined a case in the absence of a party which had not been notified of the date and place of a hearing...” 2. The Code of Civil Procedure of the Russian Federation (in force from 1 February 2003): “1. Parties... are to be summonsed 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 guarantee recording of the fact that the court summonses or notifications were received by the parties. 2. A court summons is a form of court notification. Parties are notified by court summonses of the date and place of a court hearing or of particular procedural actions... 3. A summons 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 an address indicated by that party or his/her representative. If a party does not reside at the indicated address, the court summons may be sent to his or her place of work...” “1. Court summonses and notifications are to be sent by mail or delivered by a person whom the court authorises 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 summonses 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... ... 4. If the current place of residence of an addressee is unknown, an entry to this effect is to be made on the court summons, showing the date and time of the attempted service and the source of the information.” “Parties are to inform the court of any change in their address in the course of the proceedings. If no such notification is provided, court summonses or notifications are to be sent to the addressee’s last known address and are considered to be delivered even if the addressee no longer lives or resides there.” “When a defendant’s place of residence is unknown, the court begins examination of a case once it has received information to that effect from the defendant’s last known place of residence.” “1. Parties are to inform the court about the reasons for their absence and provide evidence confirming the validity of the reasons. 2. If a party to the case fails to appear and there is no evidence that the party was duly summonsed, the hearing is to be adjourned. If a party was duly notified of the date and place of a court hearing, the hearing is to be adjourned if the court considers that the reason for the absence is valid. ... 4. A court can examine a case in the absence of a defendant duly notified of the date and place of a court hearing if he/she did not provide valid reasons for his/her absence and did not ask the court to adjourn the examination of the case. 5. Parties can ask a court to examine a case in their absence...”