FIFTH SECTION

DECISION

Application no. 73193/12 Svitlana Vasylivna SYDORENKO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 18 February 2021 as a Committee composed of:

Arnfinn BÃ¥rdsen, President, Ganna Yudkivska, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 5 November 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Svitlana Vasylivna Sydorenko, is a Ukrainian national, who was born in 1978 and lives in Zaporizhzhya. She was represented before the Court by Ms N. V. Gubska, a lawyer practising in Zaporizhzhya.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 16 February 2010 the Zaporizhzhya National University (“the University”) instituted civil proceedings in the Ordzhonikidze City Court (“the City Court”) to recover money paid to the applicant under a contract that she had allegedly failed to fulfil by not serving five years at the University, contrary to the terms of the contract.

5 . By a ruling of 3 March 2010 the City Court accepted the University ’ s claim for examination and scheduled a hearing for 1 April 2010. In the same ruling it ordered that a copy of that ruling be sent to the applicant, together with copies of the claim, for her comments.

6 . Twice, on 1 April 2010 and 12 May 2010, the City Court adjourned hearings because of the applicant ’ s failure to appear. In the respective rulings the City Court noted that the applicant had been duly informed of the time and date of the hearings and ordered that she be sent a new summons.

7 . On 9 June 2010 the City Court examined the case in the applicant ’ s absence but in the presence of the University ’ s representative. The court found no reason warranting any further adjournment on account of the applicant ’ s absence, noting that she had been duly notified of the date and time of the hearing.

8 . On the same date the City Court allowed the University ’ s claim. It concluded that the applicant had failed to fulfil her contractual obligations and ordered her to reimburse funds paid to her by the University under the relevant contract and to pay a fine.

9 . According to the applicant, she only found out about the above judgment of the City Court by chance on 2 December 2011. She requested that the case be re-examined by the City Court on that ground.

10 . On 9 December 2011, in reply to an enquiry from the applicant about any registered correspondence sent to her, the Zaporizhzhya branch of the Ukrainian postal service (“Ukrposhta”) informed the applicant that on 27 May 2010 a registered letter bearing a stamp reading “judicial summons” and addressed to the applicant had arrived for her at the local post office. In accordance with the relevant postal regulations, because the applicant lived in a dormitory with no personal mailboxes, the notification that a registered letter awaited the applicant at the local post office had been received by the dormitory staff member in charge of handling correspondence for the dormitory ’ s residents. A second notification of the registered letter was served in the same way. On 4 June 2010 the correspondence was returned to the sender, as the applicant had failed to appear and pick it up within the five-day time-limit set by the relevant regulation governing the serving of summons.

11 . By a decision of 3 February 2012 the City Court rejected the applicant ’ s request for a revision of the judgment of 9 June 2010, finding, in particular, that she had been duly informed of the time and date of the above-mentioned hearings but had failed to appear, without providing proper reasons for her absence.

12 . The applicant appealed against the judgment of 9 June 2010 to the Zaporizhzhya Region Court of Appeal (“the Court of Appeal”). She maintained that she had not breached the terms of the employment contract but that it had been the University that had been responsible for circumstances in which she had had no other choice but to resign earlier than was provided for by that contract. She also alleged that she had not been properly informed of the proceedings at the District Court.

13 . On 27 February 2012 the Court of Appeal reversed the judgment of 9 June 2010. Having looked again at the facts and evidence on the basis of the parties ’ submissions, it concluded in particular that the sum paid by the University to the applicant under the contract should be seen as constituting a part of the applicant ’ s salary and was therefore not subject to return under labour law.

14 . The University lodged a cassation appeal, alleging that the Court of Appeal had misapplied material and procedural law and requesting that the case be remitted for a new trial.

15 . According to an information note (which was made available to the Court by the Government) from the Higher Specialised Court of Ukraine for Civil and Criminal Cases (“the Higher Specialised Court”), on 29 May 2012 the Higher Specialised Court sent to the applicant, by registered mail, copies of (i) the decision to open cassation proceedings and (ii) the University ’ s cassation appeal. The correspondence was returned undelivered. The Government provided a photocopy of the envelope in which the correspondence was sent, which bears the registered number of the correspondence and a delivery slip attached to it that indicates that the correspondence was returned to the sender owing to the expiry of the time-limit for collection by the intended recipient.

16 . According to the applicant, she did not receive the letter of 29 May 2012.

17 . On 12 September 2012 the Higher Specialised Court examined the case. The parties were not summoned to the hearing. Having considered the cassation appeal and the case file, the cassation court quashed the judgment of the Court of Appeal of 27 February 2012 because of the erroneous application of the relevant law and upheld the judgement of the City Court of 9 June 2010. As reported by the Higher Specialised Court in its reply to an inquiry of the Government Agent, which is available to the Court, information regarding the date and time of examination of the applicant ’ s case had been published in advance on its official website, www.sc.gov.ua.

18 . A copy of the judgment of 12 September 2012 was sent by registered mail to the applicant ’ s address on 4 October 2012 and was received by her on 9 October 2012.

19 . On 26 March 2013, in reply to an enquiry from the applicant, the Zaporizhzhya branch of Ukrposhta informed the applicant that on 2 June 2012 and 9 October 2012 registered letters had arrived for her from Kyiv. The first letter had been returned to the sender on 5 July 2012, as nobody had appeared to pick it up from the post office, despite timely notifications; the second letter had been served on the applicant in person on the date of its arrival. The registered number of the first correspondence mentioned in Ukrposhta ’ s reply is the same as that on the envelope in the applicant ’ s case file, as submitted by the Government (see paragraph 15 above).

20 . Article 328 § 1 of the 2004 Code of Civil Procedure, as worded at the material time, provided that once a cassation appeal had been accepted for examination, the Court of Cassation was to send a copy of (i) the decision to open of proceedings and (ii) the court judgment in respect of the cassation appeal to the opposing party and to set a time-limit for submitting a reply.

COMPLAINT

21 . The applicant complained that her right to a fair hearing under Article 6 § 1 of the Convention had been breached because she had not been informed of the proceedings before the first-instance court and before the court of cassation.

THE LAW

22 . The applicant complained that her right to adversarial proceedings and equality of arms had been breached, as she had not been duly informed of the proceedings before the City Court and the Cassation Court and had accordingly not been able to present her arguments to those courts. She relied on Article 6 § 1 of the Convention, which reads as follows:

“1. In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

23 . The applicant submitted that there was no evidence in the case file to indicate that she had ever been sent or received any correspondence from the City Court before the judgment in absentia had been passed by that court. Likewise, she had never received a copy of the notice of the cassation appeal from the Higher Specialised Court in order for her to be able to reply.

24 . The Government disagreed, stating that the applicant must have been duly informed of the hearings before the first ‑ instance court because that fact had been mentioned in the wording of the rulings of the City Court of 1 April 2010 and 12 May 2010 and of the judgment of 9 June 2010 delivered by that court. They also referred to the information given by Ukrposhta (see paragraph 10 above).

25 . The Government furthermore suggested that the information note and documents provided by the Higher Specialised Court and the information provided by Ukrposhta of 26 March 2013 had confirmed that the Higher Specialised Court had indeed duly sent the applicant a copy of the notice of the cassation appeal. They implied that the applicant had avoided receiving the correspondence by failing to pick it up at the post office, for which the State cannot be held responsible.

26 . Lastly, the Government submitted that the applicant ’ s right to a fair hearing had not been breached, as the court of cassation had considered facts and material of which the parties had already been aware, and the fact that the applicant had not submitted a reply to the notice of the cassation appeal had not led to the wrongful consideration of her case.

27 . The Court reiterates that 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 a 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). The principle of equality of arms requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see, inter alia , Avotiņš v. Latvia [GC], no. 17502/07 , § 119, ECHR 2016; and Regner v. the Czech Republic [GC], no.35289/11, § 146, 19 September 2017 ). Each party must be given the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party, including the other party ’ s appeal. What is at stake is the litigants ’ confidence in the workings of justice, which is based on, inter alia , the knowledge that they have had the opportunity to express their views on every document in the file (see Beer v. Austria , no. 30428/96 , §§ 17-18, 6 February 2001).

28 . If court documents are not duly served on a litigant, then he or she might be prevented from defending him or herself in the proceedings (see Zavodnik v. Slovenia , no. 53723/13, § 70, 21 May 2015, with further references).

29 . Turning to the present case, Court does not find it necessary to decide, given the particular circumstances of the case, on whether the applicant ’ s absence from the hearings before the first-instance court was indeed a consequence of the court ’ s failure to duly inform her of those hearings. Even assuming that this was the case, the consequences of such a procedural flaw were remedied in the Court of Appeal, which examined afresh questions of facts and law and to which the applicant was able to present her arguments.

30 . As regards the proceedings before the Higher Specialised Court, the Court observes that under domestic law that court had an obligation to send the notice of the cassation appeal to the applicant and to invite her to respond (see paragraphs 20 above). C ontrary to many other cases examined by the Court where there was no evidence in the case file that the relevant correspondence was sent to the applicants (see, for example, Strizhak v. Ukraine , no. 72269/01, § 39, 8 November 2005; Hudáková and Others v. Slovakia , no. 23083/05, §§ 30-32, 27 April 2010; and Lazarenko and Others v. Ukraine , nos. 70329/12 and 5 others, §§ 36 and 43, 27 June 2017), in the present case the evidence provided by the parties shows that on 29 May 2012 the Higher Specialised Court did send – by registered mail – notice of the cassation appeal to the applicant. Thus, it appears that the domestic court had duly complied with the requirement prescribed by domestic procedural law.

31 . The letter of Ukrposhta of 26 March 2013 further suggests that notifications of the court ’ s letter of 29 May 2012 had been duly left at the applicant ’ s address by a post officer but she never appeared at the post office to pick the correspondence up. To the extent that the applicant may be understood as challenging Ukrposhta ’ s submissions, the Court notes that whilst the general concept of a fair trial and the fundamental principle that proceedings should be adversarial require that court documents should be duly served on a litigant, Article 6 of the Convention does not go as far as obliging the domestic authorities to provide a perfectly functioning postal system (see, for example, Lazarenko and Others , cited above, § 37, and, in the context of Article 8 of the Convention, Foley v. the United Kingdom (dec.), no. 39197/98, 11 September 2001).

33 . In this respect the Court finds it striking that, being aware of the difficulties with the delivery of correspondence in the past, or at least of the authorities ’ allegations in this respect, the applicant remained rather passive and did not seem to have taken any measure aimed at ensuring that correspondence sent to her would reach her. Nor had she made any enquiry with the courts about the state of the proceedings while it was highly probable that the University would appeal against the judgment delivered in the applicant ’ s favour.

34 . The Court recalls in this respect that it is incumbent on the interested party to display special diligence in the defence of her interests and to take the necessary steps to apprise herself of the developments in the proceedings (see, among other authorities, Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001).

35 . In view of the above, the Court concludes that it has not been shown in the present case that it has been the respondent ’ s State responsibility that the applicant failed to provide her comment on the appeal on points of law lodged by the University. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 18 March 2021 .

Martina Keller Arnfinn BÃ¥rdsen Deputy Registrar President