Communicated on 7 March 2019
FIRST SECTION
Application no. 68964/14
Albert GHUKASYAN
against Armenia
lodged on 13 October 2014
STATEMENT OF FACTS
The applicant, Mr Albert Ghukasyan, is a German national who was born in 1938 and lives in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is of Armenian origin. In 1993 he moved with his wife to Germany from Armenia.
On 5 September 2001 the applicant’s brother, H.G., leased the applicant’s apartment situated at 3 Tamanyan Street in Yerevan to a private company (‘the company’) based on a power of attorney issued to him by the applicant. According to the contract signed between H.G. and the company, the contract was concluded for a period of ten years and would be renewed for the same period of time if its terms were respected.
It appears that upon the termination of the initial lease period the applicant expressed his disagreement to the renewal of the contract.
On an unspecified date, the company lodged a claim with the Kentron and Nork-Marash District Court of Yerevan (‘the District Court’) against the applicant, seeking to oblige the latter to renew the contract for another ten years and seeking compensation for losses sustained.
The applicant’s representative, G., filed a counter-claim seeking to have the provision on tacit renewal of the contract of 5 September 2001 declared null and void.
On 21 May 2012 the District Court partially granted the company’s claim while the applicant’s counter-claim was rejected.
G. lodged an appeal against the District Court’s judgment on behalf of the applicant.
By decision of 15 February 2013 the Civil Court of Appeal (‘the Court of Appeal’) granted the appeal by quashing the judgment of 21 May 2012 and remitting the case to the District Court for a fresh examination.
It appears that both G. and H.G. were present at the hearing before the District Court as the applicant’s representatives in the proceedings.
On 25 November 2013 the District Court granted the company’s claim in so far as the renewal of the lease contract was concerned.
G. lodged an appeal against the District Court’s judgment of 25 November 2013.
On 17 January 2014 the Court of Appeal sent a notification about the date of the hearing to the applicant’s address at 3 Tamanyan Street. The notification for the company was sent to the same address. The applicant’s notification letter was returned to the Court of Appeal as undelivered mail.
By decision of 6 March 2014 the Court of Appeal upheld the District Court’s judgment of 25 November 2013.
On 7 April 2014 H.G., as the applicant’s representative in the proceedings, lodged an appeal on points of law. He argued, inter alia, that the Court of Appeal had failed duly to notify the applicant’s representative about the date and time of the hearing and had heard the case in the latter’s absence. In the course of the proceedings the courts had sent all notifications to H.G., since the applicant did not reside in Armenia. However, for an unknown reason the Court of Appeal had sent the notifications to the same address from which the applicant had moved long before and which belonged to the company that was a party to the proceedings. The company, however, having its own interests in the proceedings, had not redirected the letters to H.G. as the applicant’s representative.
On 30 April 2014 the Court of Cassation declared the appeal on points of law inadmissible for lack of merit.
B. Relevant domestic law
The relevant provisions of the Code of Civil Procedure of 1998 (in force until 9 April 2018) read as follows:
Article 78: Court summons
“1. The parties to the proceedings shall be informed about the time and place of the court hearing ... by a court summons ...
2. The summons shall be sent by registered post with acknowledgement of receipt or by other means of communication ensuring the registration of notification or is served against a receipt or is sent by electronic mail ... (hereafter, duly notified).
3. The summons is sent to the address indicated by the party to the proceedings.
...”
Article 117: Verifying the presence of the parties
and other participants of the proceedings
“1. The clerk of the court hearing reports to the court about the presence of the parties and other participants of the proceedings and whether those who are absent have been duly notified, and also provides information about the reasons for their absence.”
Article 118: Examination of the case in the absence
of the plaintiff or the defendant
“2. The non-appearance of the defendant or the plaintiff who has been duly notified about the time and place of the court hearing shall not preclude the examination of the case.”
Article 119: Adjournment of the case
"1. The court is entitled to adjourn the examination of the case if ... it cannot be examined at the hearing in question because of the absence of one of the parties ...”
COMPLAINT
The applicant complains under Article 6 § 1 of the Convention that the Court of Appeal which delivered the decision of 6 March 2014 examined his appeal in his and his representative’s absence while they were not duly notified about the hearing.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms guaranteed by that provision respected in the proceedings before the Civil Court of Appeal as regards the examination of the applicant’s appeal against the District Court’s judgment of 25 November 2013 (see Nikoghosyan and Melkonyan v. Armenia, nos. 11724/04 and 13350/04, 6 December 2007)?
The parties are requested to clarify whether the defendant company’s representative was present at the hearing before the Court of Appeal and whether a notification of the date and place of the hearing had been sent to the applicant’s representative, G.
Full & Egal Universal Law Academy