Communicated on 28 August 2017
FOURTH SECTION
Application no 40972/09
Viktor Vladimirovich BOROVINSKIY
against Ukraine
lodged on 18 July 2009
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Viktor Vladimirovich Borovinskiy, is a Ukrainian national who was born in 1956 and lives in Dnipropetrovsk.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is the founder and director of a private company, Tislav (Тіслав). In 1992 the applicant’s company rented a plot of land from Dnipropetrovsk City Council with the aim of doing business. In 2002 and 2003 the respective rent agreement was prolonged twice, the second time until the end of 2004. However, further prolongation of the rent agreement was possible only after the completion of the due allocation of the plot of land (відведення земельної ділянки), in accordance with recent amendments to the domestic law. During 2004-2006 the applicant tried to complete the procedure, but to no avail on account of alleged inactivity on the part of Dnipropetrovsk City Council. According to the applicant, even though he repeatedly raised the question of procedural obstacles before the administration of Dnipropetrovsk City Council and before the Prosecutor’s Office, on 19 September 2007 the Prosecutor’s Office lodged a claim with the domestic courts on behalf of the State (represented by Dnipropetrovsk City Council), seeking the return of the applicant’s plot of land in the light of the termination of the rental agreement.
On 13 November 2007 the Dnipropetrovsk Regional Commercial Court allowed the prosecutor’s claim and instructed the applicant’s company to return the plot of land in question. The applicant indicates that he was not informed of the hearing before the Regional Commercial Court and, as a result, was not present at it.
The applicant appealed and, inter alia, complained that he had not been informed of the hearing. On 12 March 2008 the Dnipropetrovsk Commercial Court of Appeal, in the applicant’s absence, quashed the judgment of the first-instance court and rejected the prosecutor’s claim on the grounds that the applicant had undertaken all necessary steps to comply with the requirements of the domestic law in respect of the allocation of the plot of land, but that the procedure had not been completed through the fault of Dnipropetrovsk City Council. The court, however, did not address the applicant’s statements concerning the failure to notify him of the hearing before the first-instance court.
The prosecuting authorities lodged a cassation appeal. On 9 October 2008 the Higher Commercial Court of Ukraine quashed the judgment of the appellate court and upheld the judgment of the first-instance court of 13 November 2007. In his objections to the prosecutor’s cassation appeal the applicant repeatedly raised the question of the failure to inform him of the hearings before both the first-instance court and appellate court. The Higher Commercial Court noted, inter alia, that the information concerning the date and time of the hearing before the first-instance court had been sent to applicant’s registered office address by registered mail.
On 25 December 2008 the Supreme Court of Ukraine rejected a request lodged by the applicant for a review of the judgment of the Higher Commercial Court of Ukraine.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the proceedings in his case were unfair. In particular, he complains that he was not duly notified of the time of the hearings before the first-instance court and before the court of appeal in respect of his case and that consequently he was not able to confront his adversary in the proceedings.
QUESTIONS
Were the requirements of a fair trial, as envisaged by Article 6 § 1 of the Convention, observed in the applicant’s case? In particular, was the examination of the applicant’s case in his absence both by the first‑instance court and on appeal compatible with the principles of an adversarial hearing and of equality of arms, within the meaning of Article 6 § 1 of the Convention, regard being had to the applicant’s allegations that he had not been served a summons notifying him of the date and time of the respective hearings (see, mutatis mutandis, Dilipak and Karakaya v. Turkey, nos. 7842/05 and 24838/05, §§ 76-95, 4 March 2014)?
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