CASE OF SIVUKHIN v. RUSSIA
Violation of Article 6 - Right to a fair trial
Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
5. The applicant was born in 1946 and lives in Krasnodar. 6. In 1986 the applicant took part in the cleaning-up operation at the Chernobyl nuclear disaster site. He was subsequently granted Category 2 disability status and became entitled to various social benefits, including a 50% discount on housing charges. 7. In March 2004 the municipal housing maintenance authority lodged a claim against the applicant, seeking to recover unpaid housing charges. 8. On 31 March 2004 the applicant counterclaimed, seeking compensation in respect of non-pecuniary damage. He insisted that he had paid the housing charges on time and in full. The amount of the charges paid had been calculated to include the 50% discount to which he and his family were entitled. 9. On 26 July 2004 the Justice of the Peace of the 47th Court Circuit of the Prikubanskiy District of Krasnodar partly found against the applicant and ordered him to pay outstanding housing charges. It rejected the applicant’s counterclaim, finding that by law only he, but not his family members, was entitled to the discount. 10. The applicant appealed against the judgment. He challenged the first-instance court’s assessment of the facts and application of the legal provisions. 11. On 1 October 2004 the applicant’s representative requested the Prikubanskiy District Court of Krasnodar to bring the Social Protection Department into the proceedings as a third party. The court granted this request and suspended the proceedings. 12. The appeal hearings were subsequently scheduled for 24 December 2004 and 21 January 2005 but did not take place due to the presiding judge’s illness. 13. On 2 February 2005 the Prikubanskiy District Court of Krasnodar upheld the judgment. The applicant received the summons on 3 February 2005 and therefore neither he nor his representative could attend the hearing. The judgment (определение) contained a notice to the effect that no appeal lay against it. 14. On 9 February 2005 the applicant requested the court to resume the appeal proceedings since he had been summoned to the appeal hearing on 2 February 2005 belatedly. 15. On 6 April 2005 the Prikubanskiy District Court of Krasnodar heard the parties and rejected the applicant’s request. The court established that the summons had been sent to the applicant on 1 February 2005, and there had been no evidence showing that the summons had reached him before the hearing on 2 February. Nevertheless, according to civil procedural law, improper summoning is not a ground for a review of the case. 16. On 5 July 2005 the Krasnodarsk Regional Court rejected the applicant’s request for supervisory review proceedings. 17. Under Article 113 of the Code of Civil Procedure of 2002, in force at the material time, parties to the proceedings are to be summoned to a hearing by a letter sent by registered mail with an acknowledgment of receipt, by court summons with an acknowledgment of receipt, by telegram, by phone or fax or by any other means which can guarantee a record of the fact that the summons was sent and was received by the party. Summons shall be served on the parties and their representatives in such a way that they have enough time to appear at the hearing and prepare their case. 18. According to Article 327 §§ 2 and 3 of the Code of Civil Procedure, an appeal court examines a case following rules of procedure in a first-instance court; it can establish new facts and examine new evidence. 19. Article 2.13 of the Instruction on the judicial workflow in district courts, approved by Order no. 36 of the Judicial Department of the Supreme Court on 29 April 2003, provides that, summons and copies of procedural documents shall be sent by registered mail with an acknowledgement of receipt form