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Lazarenko and others v. Ukraine, how court summons must be conducted in accordance with Article 6 of the Convention

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Lazarenko and others v. Ukraine, how court summons must be conducted in accordance with Article 6 of the Convention

03. 05. 2018

The opinion that according to the judgment of the European Court of Human Rights in the case of Lazarenko and others v. Ukraine (application no. 70329/12 and 5 others, judgment of 27.06.2017) court summons should be sent only as registered correspondence is actively disseminated in the professional Internet communities.

Anastasia Nekrasova, lawyer at the Nazar Kulchytskyy and partners, examined this question.

Thus, according to the summary statement of the case of Lazarenko and others v. Ukraine prepared by the Ministry of Justice of Ukraine of June 27, 2017, “the European Court indicated that it is necessary to use registered written correspondence when sending judicial documents”. This conclusion was duplicated in the Information Letter of the Supreme Administrative Court of Ukraine as of October 24, 2017, No. 1432/10-14 /17 and brought to the attention of the chairs of administrative courts of appeal.

However, such an interpretation of the aforementioned judgment of the European Court in the case of Lazarenko and others v. Ukraine is incorrect.

According to the facts in the case of Lazarenko and others v. Ukraine, the Dnipropetrovsk Administrative Court of Appeal quashed the judgments of the courts of the first instance in the applicants’ favour. The applicants argued that they had not been informed of the trial at the appellate instance. The Government, in its turn, noted that the summons of the applicants to the court of appeal were sent by ordinary mail (not the registered correspondence).

Describing the general principles to be applied in the case of Lazarenko and others v. Ukraine, the Court noted that “Article 6 of the Convention cannot be construed as providing for a specific form of service of court mail (see, for example, Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004, and Bats v. Ukraine (dec.), no. 59927/08, § 37, 24 January 2017). Nor are the domestic authorities required to provide a perfectly functioning postal system (see Zagorodnikov v. Russia, no. 66941/01, § 31, 7 June 2007). However, the general concept of a fair trial, encompassing the fundamental principle that proceedings should be adversarial (see Ruiz-Mateos v. Spain, 23 June 1993, § 63, Series A no. 262), requires that the person against whom proceedings have been initiated should be informed of this fact (see Dilipak and Karakaya v. Turkey, nos. 7942/05 and 24838/05, § 77, 4 March 2014).

(Lazarenko and others v. Ukraine, § 37)

The court analysed that the Code of Administrative Justice of Ukraine, which was in force at the time, provided for various forms of notification of the person: the registered mail (by letter or telegram), courier, with a delivery receipt, as well as the sending of the text of notification by fax, e-mail, telefax or publication in printed media. Thus, according to national legislation, the sending of a notification by mail could only be done by the registered correspondence.

As a result, in the case of Lazarenko and others v. Ukraine, the Court found violations of Art. 6 of the Convention as the Government did not provide substantiated explanations of the widespread use of notification by ordinary mail (although it contravened the requirements of domestic legislation), nor did it provide any evidence to prove that the applicants had been notified of the trial by any other method provided by law (e.g. by e-mail or fax).

Therefore, the judgment of the European Court in the case of Lazarenko and others v. Ukraine does not necessarily mean that court summons should be sent only by the recommended correspondence, as indicated by the Ministry of Justice, and subsequently duplicated in the Information Letter of the Supreme Administrative Court. Instead, the aforementioned judgment of the European Court leads us to the conclusion that

  1. court summons must be sent in the manner prescribed by domestic law;

The legal procedures for sending court summons are not limited to the registered correspondence, but also include court summons by courier, fax, e-mail, etc.

  1. courts must be able to document the fact of notification of a person about summon to a court;

Such confirmation may be a notice of delivering of a registered letter to a person, a printout copy of a sent message on the email indicated by a person, the courier invoice, a fax machine report, etc.

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