Постановление Европейского суда по правам человека от 07.05.2009 «Дело Сивухин (Sivukhin) против России» [англ.]

uary 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.

II. Relevant domestic law and practice

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.

THE LAW

I. Alleged violation of Article 6 § 1 of the Convention

20. The applicant complained that he had not been afforded the opportunity to attend the appeal hearing in his civil case, in breach of Article 6 § 1 of the Convention, which reads as follows:
"In the determination of his civil rights and obligations..., everyone is entitled to a fair... hearing... by [a]... tribunal..."

A. Admissibility

21. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

22. The Government claimed that the applicant had been notified of the appeal hearing of 2 February 2005 in good time. The summons was sent to him on 1 February 2005 and one day was sufficient to be prepared for the hearing. In any event, the applicant's presence was not necessary as the appeal court could decide on the basis of the case file and his written submissions. Furthermore, the applicant was in fact heard by the appeal court on 6 April 2005.
23. The applicant averred that the Prikubanskiy District Court of Krasnodar had failed in its duty to inform him of the appeal hearing, that he had received the letter of 1 February 2005 only on 3 February 2005, a day after the hearing, and that the Government had not provided any evidence to the contrary.
24. The parties did not dispute, and the Court has no reaso

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