BATS v. UKRAINE
Inadmissible
André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Sergiy Goncharenko;Síofra O’Leary
1. The applicant, Mr Anatoliy Yosypovych Bats, is a Ukrainian national who was born in 1947 and lives in Balta. 2. The applicant was represented by Mr V. Kutsokon, a lawyer practicing in Stara Synyava of the Khmelnytsk Region. The Ukrainian Government (“the Government”) were represented, most recently, by their Agent, Mr I. Lishchyna, of the Ministry of Justice. 3. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Fifth Section decided to appoint Mr S. Goncharenko to sit as an ad hoc judge (Rule 29 § 1(b)). 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Between 1993 and 2005 the applicant was dismissed several times from his position as chief forester at Balta Forestry and reinstated following court proceedings. 6. On 22 December 2005 the applicant was again dismissed from his position for inadequate performance of his professional duties. 7. On 17 January 2006 the applicant instituted civil proceedings in the Baltskiy District Court to be reinstated and claiming various payments in compensation. 8. On 21 February 2007 the District Court allowed the applicant’s claims in part. In particular, it found that the defendant, Balta Forestry, had failed to substantiate its allegations that the applicant’s performance at work had been inadequate and ordered his reinstatement. It also awarded him part of the sum claimed in compensation. 9. The defendant appealed, maintaining that the applicant had been dismissed lawfully. 10. On an unspecified date the Odessa Regional Court of Appeal (“the Court of Appeal”) scheduled a hearing for 27 September 2007. 11. On 13 September 2007 the Court of Appeal sent to the applicant, by registered mail with acknowledgement of receipt, an envelope which the applicant received on 15 or 16 September 2007 (see paragraph 13 below). 12. A copy of the envelope submitted to the Court bears no indication of its contents and the parties disagree as to those contents: 13. The applicant received the envelope on 15 or 16 September 2007. A copy of the acknowledgement slip provided to the Court by the Government contains a signature, purportedly that of the applicant, and a handwritten note, “27.09.07”, in the field of the slip for the “collect payment on delivery” arrangements. According to the applicant, even though he received the envelope, he was not familiar with the contents of the slip, did not sign it and the signature appearing on it was not his. 14. According to an undated certificate issued by the Court of Appeal’s clerk, on 3 (sic) September 2007 both the applicant and the defendant were informed of the hearing, to be held at 2 p.m. on 27 September 2007. 15. On an unspecified date the applicant lodged written comments with the Court of Appeal in reply to the appeal. 16. On 27 September 2007 the Court of Appeal examined the case in the applicant’s absence but in the presence of the defendant’s representative, who gave oral submissions to the effect that he maintained the appeal. The court found no reason warranting an adjournment on account of the applicant’s absence as the applicant had not filed any such request and had been duly notified of the time of the hearing. It examined the evidence in the file and the applicant’s written comments. 17. On the same date the court reversed the judgment of the trial court. Having looked again at the evidence, it concluded that the applicant had systematically failed to carry out his professional duties and had therefore been lawfully dismissed. 18. In November 2007 the applicant appealed in cassation, arguing that he had performed his professional duties properly. The applicant also complained that the appellate court had had no basis whatsoever to state that he had been duly notified of the appeal hearing. The only judicial correspondence he had received in connection with the preparation of the appeal hearing had contained a copy of the other party’s appeal. He had never been served with any summonses for the hearing informing him of its date and time. As a result, he had been deprived of the opportunity to confront his adversary before the Court of Appeal, which had led to the reversal of the earlier judgment in his favour. 19. On 11 June 2008 the Supreme Court dismissed the applicant’s application for leave to appeal, concluding that the Court of Appeal had complied with the substantive and procedural law in adjudicating the applicant’s case. 20. On 17 March 2010 the District Court refused to provide the applicant with a copy of the summons notifying him about the appeal hearing or evidence that such a summons had been delivered, stating that there were no such documents in the case file. 21. Following communication of the case to the respondent Government, on 15 August 2013 the District Court informed the Government Agent’s office that there was no summons for the hearing at the Court of Appeal in the case file because it had been sent to the applicant. The case file contained an acknowledgment slip showing that the summons in question had been served on the applicant in person. 22. The relevant provisions of the Code of Civil Procedure of 2004 as worded at the material time read as follows: “1. Parties to proceedings shall be summoned via judicial summonses (повістками про виклик) ... 4. A judicial summons shall be served in a manner that provides the persons summoned with sufficient time to appear before the court and to prepare for taking part in the judicial examination of the case, but it shall be served no later than seven days before the court session ... 5. A judicial summons and a slip acknowledging receipt ... shall be delivered by registered mail ... or via couriers to the address declared by the party or another person engaged in the proceedings. A party or his/her representative upon their consent may be given a judicial summons to be served on the respective participants of civil proceedings ...” “1. A judicial summons addressed to an invidual shall be handed to them against their signature ... 2. The slip acknowledging receipt of a summons with a mention of the date of service shall be returned ... to the court on the same day ...” “1. The appellate court shall adjourn should a party fail to appear, where there is no information about whether he/she has been served with the summons ... 2. Failure to appear by the parties or other persons engaged in the proceedings who have been duly notified of the time and place of the examination of the case shall not prevent the [the court] from examining the case.” “1. A court decision must definitely be quashed and the case remitted for fresh examination if: ... 3) the case was examined in the absence of any person engaged in the proceedings who was not duly notified of the time and place 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 ...” 23. By Resolution no. 1155 of 17 August 2002 the Cabinet of Ministers enacted a set of Postal Rules, which were in effect at the material time and which were repealed on 5 March 2009. Point 20 of the Rules provided that summonses were to be accepted for delivery by registered mail, with an acknowledgement of receipt, in envelopes which bore the words “Judicial summons”.