20. Jūnijs 2012 / 10:05
Nu, tā jau ECT
39. In this respect, the Court notes that, notwithstanding the provisions of Article 78 § 2 of the CCP (see paragraph 28 above), the Government failed to submit any documentary evidence from which it would be clear exactly on which date the applicants received the package dispatched on 30 May 2003 containing the relevant summons. The only evidence which the Government were able to produce are copies of registers of various intermediate post offices – from which it appears that the package in question was dealt with by these post offices on 2 June 2003 – followed by assumptions that this package should have been delivered on time. On the other hand, there are two official postmarks on the relevant envelope dated 12 and 17 June 2003 which suggest that the package was still dealt with by the postal services of Aragatsotn Region on these dates, both of which happen to be after the hearing in question. The Government did not provide any plausible explanation regarding these postmarks, simply claiming that their origin was unclear and that, according to the established procedure, they should not have been put. Furthermore, it is not clear on the basis of what evidence the Civil Court of Appeal stated in its judgment of 10 June 2003 that “the applicants received in person the summons notifying them about the place and time of the hearing, but they failed to appear”, and, if such evidence existed in the case file, why the Government were not able to submit it. Nor is it clear why the Court of Cassation, in its decision of 26 September 2003, did not touch upon and dismiss the applicants\' complaint about the failure of timely notification explicitly raised in their cassation appeal, had there been evidence to the contrary. In such circumstances, the Court is not convinced by the Government\'s arguments and concludes that the applicants were not duly notified about the hearing of 10 June 2003.
40. Having come to this conclusion, the Court considers that the Civil Court of Appeal failed to properly verify as to whether the applicants had been duly notified about the hearing, holding it in their absence. The plaintiff\'s representative was present at this hearing, and made oral submissions and explanations which the applicants were not able to comment on. Nor were they able to make their own oral submissions in support of their claims. This deficiency was not remedied by the fact that the applicants could lodge an appeal with the Court of Cassation, as the latter, as opposed to the Civil Court of Appeal, does not carry out a full review of the case (see, mutatis mutandis, Steck-Risch and Others, cited above, § 56). This is even more so considering that the Court of Cassation had competence to remit the case for a new examination on the ground of a procedural violation of the applicants\' rights, as requested in their cassation appeal (see paragraph 25 above), but it failed to do so (see, mutatis mutandis, Miholapa v. Latvia, no. 61655/00, § 30, 31 May 2007). It follows that, in the circumstances of the case, the principle of equality of arms was not respected.
41. There has accordingly been a violation of the applicants\' right to a fair hearing enshrined in Article 6 § 1 of the Convention.
