FIFTH SECTION

DECISION

Application no. 40972/09 Viktor Vladimirovich BOROVINSKIY against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 3 March 2020 as a Committee composed of:

Yonko Grozev , President, Ganna Yudkivska , Lado Chanturia , judges, and Victor Soloveytchik , Deputy Section Registrar ,

Having regard to the above application lodged on 18 July 2009 ,

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 . T he applicant, Mr Viktor Vladimirovich Borovinskiy , is a Ukrainian national, who was born in 1956 and lives in Dnipro .

2 . The Ukrainian Government (“the Government”) were represented by their Agent, most recently M r I. Lishchyna , of the Ministry of Justice. On 22 January 2018 the applicant was granted leave to present his own case.

3 . On 28 August 2017 the Government were given notice of the complaint concerning the alleged violation of Article 6 § 1 on account of the failure to notify the applicant of the time of the hearings before the first ‑ instance court and before the court of appeal; the remainder of the application was declared inadmissible , pursuant to Rule 54 § 3 of the Rules of Court .

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

5 . The applicant is the sole owner and director of a private company, Tislav ( Тіслав ) (“the company”).

6 . According to the applicant, in 1992 the company rented a plot of land from Dnipropetrovsk City Council with the aim of constructing on it a small shop. In 2002 and 2003 the respective land lease agreement was prolonged twice – the second time until the end of 2004. However, a further prolongation of the land lease agreement was possible only after the completion of the due allocation to the company of the plot of land ( відведення земельної ділянки ), in accordance with relevant amendments to the Land Lease Act and decisions of the Dnipropetrovsk City Council of 2 June 2004 and of 22 September 2004 . During the period 2004-2006 , the applicant tried to complete the procedure, but to no avail , on account of the alleged inaction of Dnipropetrovsk City Council.

7 . According to the Government, on 18 March 2003 the company and Dnipropetrovsk City Council concluded a land lease agreement, which ended on 19 June 2003 , after which no new agreement was concluded.

8 . On 25 September 2007 the Prosecutor ’ s Office of the Industrialnyy District of Dnipropetrovsk lodged a claim with the Dnipropetrovsk Regional Commercial Court (“the Commercial Court”) on behalf of the State (represented by Dnipropetrovsk City Council), seeking the return of the above - mentioned plot of land in the light of the expiry of the land lease agreement , arguing that the land in question had been occupied without permission .

9 . According to the applicant, on 12 November 2007 a representative of the Prosecutor ’ s Office lodged an amended claim with the Commercial Court , withdrawing his previous argument that the land had been occupied without permission.

10 . On 13 November 2007 the Commercial Court allowed the claim lodged by the Prosecutor’s Office and instructed the applicant ’ s company to return the plot of land in question. At the beginning of the judgment the court noted that the company had not sen t any reply to the notice of claim nor provided the documents requested by the Commercial Court; at the end of the judgment it found that the company had been served notification of the date and time of the hearing at the address stated in the notice of claim, and that that address had matched exactly t he address contained in the company’s e xcerpt from the Company Register as at 10 September 2007.

11 . According to the applicant, “for unknown reason s ” the company was not informed of the hearing before the Commercial Court and could not attend it in order to conduct its defence.

12 . According to the Government, the applicant was indeed informed of the date and time of the hearing, as those details had been stipulated in the judgement of the Commercial Court .

13 . T he applicant appealed, complaining that the company had not received notice of a ruling on the initiation of the proceedings and that it had not been able to submit documents in support of its position. He also complained that the company had not been informed of the date and time of the hearing and asked for a prolongation of the time-limit for lodging an appeal.

14 . On 11 February 2008 the applicant was present at a hearing before the Dnipropetrovsk Commercial Court of Appeal (“the Court of Appeal”) , during which he applied for the exclusion of two of the three judges hearing his case. The case was adjourned.

15 . On 12 March 2008 the Court of Appeal held another hearing and examined the case in the applicant’s absence. It prolonged the time-limit for lodging an appeal, quashed the judgment of the first-instance court and dismissed the claim lodged by the Prosecutor’s Office . It examined whether the applicant had been notified of the date and time of the hearing and, being satisfied with the notification procedure, proceeded to examine the case . A representative of the Prosecutor ’ s Office was present and submitted his arguments. The court found that ( i ) the Prosecutor ’ s Office had not prove d that the company had occupied the land without permission and (ii) the company had undertaken all necessary steps to comply with the requirements of the domestic law in respect of the allocation of the plot of land; the fact that that procedure had not been completed had been the fault of Dnipropetrovsk City Council. The Court of Appeal did not address the applicant ’ s statement concerning the failure to notify him of the hearing before the first-instance court.

16 . The prosecuting authorities lodged a cassation appeal. After being served notice of the cassation appeal, the applicant complained in his reply to the notice of cassation appeal that he had not been summoned to “ a hearing before a court”, (“ не отримав виклик до суду ”) without indicating whether he was referring to the first- instance court or second - instance court , or both .

17 . On 9 October 2008 the Higher Commercial Court of Ukraine (“the Court of Cassation”) , after holding a hearing in the applicant’s presence, quashed the judgment of the appellate court and upheld the judgment of the first-instance court of 13 November 2007 on the basis that the company had not left the land after the land lease agreement had expired, in contravention of the law. Referring to the case-file material, the Court of Cassation dismissed the company ’ s complaint – as construed from its reply to the cassation appeal – regarding its allegedly not having been informed of the initiation of the case on the grounds that letters had been sent by recorded delivery to the company ’ s legal address – the same address as that contained in both the notice of claim and the Company Register and which the company itself had cited in both its notice of appeal and its reply to the notice of the cassation appeal .

18 . The company appealed in cassation to the Supreme Court, alleging a misapplication of substantive and procedural law. In particular, it disagreed with the conclusion of the Court of Cassation that it had been notified of the proceedings , and repeating that “ for unknown reasons” the company had not receive d any notification of the date and time of “ the court hearing”. It complained that its right to adversarial proceedings had been breached , as it had not been able to ask the claimant questions relating to the facts of the case.

19 . On 25 December 2008 the Supreme Court of Ukraine rejected the appeal in cassation (seeking judicial review of the judgment of the Court of Cassation) as unsubstantiated.

20 . On 19 January 2009 the applicant received the latter decision.

21 . Article 87 of the Code of Commercial Proceedings (“the CCP”), as worded at the material time, provided that judgments and rulings had to be sent to the parties concerned, the prosecutor concerned (in the event that a prosecutor had participated in the relevant proceedings), and any third parties, no later than five days after their adoption or delivery (as confirmed by the recipient’s signature).

22 . Section 111-10(2) of the CCP provided that a court of cassation had to quash a judgment or a ruling delivered by a first-instance court or a court of appeal if a case had been heard without the participation of any party, in the event that that party had not been duly notified of the time and date of a hearing.

23 . Section 3.5. 1. of the Instruction on Record-keeping in Commercial Courts ( І нструкція з діловодства в господарських судах України ), adopted by the h ead of the Higher Co mmercial Court of Ukraine on 10 December 2002 (“the Instruction”), provided at the relevant time that a ruling on the initiation of court proceeding s had to be sent on the day of its adoption to all participants in the proceedings by recorded delivery, with confirmation of receipt . A delivery slip had to be sewn into the case file.

24 . Section 3.17 of the Instruction provided that a ruling accepting a notice of appeal for consideration had to be sent to the parties concerned by recorded delivery, with confirmation of receipt. All other procedural documents had to be sent by recorded delivery .

COMPLAINT

25 . The applicant complained under Article 6 § 1 that he had not been duly notified of the dates and time s of the hearings before the first-instance court and before the court of appeal .

THE LAW

26 . The applicant complained under Article 6 § 1 of the Convention that he had not been able during the proceedings to confront his adversary , owing to the defective manner of the notification of the hearings before the first-in stance and the appellate courts. The above provision reads as follows :

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

27 . The Government firstly submitted that the applicant had lodged his application with the Court outside the six-month time-limit, which had to be calculated as starting on 9 October 2008 (the day on which the Higher Commercial Court of Ukraine gave its judgment). They argued that the appeal in cassation to the Supreme Court should be considered as constituting an extraordinary remedy.

28 . The Government also submitted a letter from the head of the Dnipropetrovsk Region al Commercial Court dated 28 November 2017 informing the office of the Government ’s Agent that it had not been possible to verify whether the applicant had indeed been informed of the courts ’ hearings for the reason that the case-file material – apart from procedural documents relating to the case – had been destroyed on 28 November 2017. At the same time, the Government insisted that the applicant must have been duly informed of the hearing before the first ‑ instance court because that fact had been mentioned in the text of the judgment given by that court. Consequently, they asked the Court to declare the instant application inadmissible.

29 . The applicant disagreed. He complained that his right to adversarial proceedings and equality of arms had been breached, as he had not been informed of the hearings before the Commercial Court and the Court of Appeal . The applicant provided a photo copy of an envelope sent by the Prosecutor ’ s Office to the company o n 12 November 2007 which, according to him , had contained a notice of claim. He then implied that the Commercial Court could have received a notice of claim no earlier than on 12 November 2007 , even though the hearing had been scheduled for 13 November 2007. The applicant concluded that in view of the fact that the case had been introduced only on 12 November 2007, the first-instance court had not had enough time to inform him of the date and time of the hearing.

30 . The Court has already ruled that prior to legislative changes of 2010 an appeal in cassation to the Supreme Court constituted an effective remedy in commercial cases (see Cosmos Maritime Trading and Shipping Agency v. Ukraine , no. 53427/09, § 61 , 27 June 2019 ) and considers that there are no grounds to depart from that finding in respect of the present case. In this respect, the Court notes that the applicant received the final decision in this case on 19 January 2009, while the prese nt application was lodged on 18 July 2009. Therefore, the applicant observed the six-month time-limit. The Court accordingly rejects the Government ’ s respective submission .

31 . That being so, the application is inadmissible for the following reasons.

32 . The Court reiterates that the principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that proceedings should be adversarial (see Ruiz- Mateos v. Spain , judgment of 23 June 1993, Series A no. 262, p. 25, § 63).

33 . The principle of equality of arms would be devoid of substance if a party to a case were not notified of a relevant hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise the right to appear, as established in domestic law (see Zagorodnikov v. Russia , no. 66941/01 , § 30, 7 June 2007).

34 . The Court notes that the applicant was not present at the hearing before the Commercial Court and at the second hearing before the Court of Appeal of 12 March 2008, allegedly because he had not – for “unknown reasons” – been informed of them in advance.

35 . The national courts established that the relevant registered letters had been sent to the company’s legal address (see paragraphs 10 , 17 and 19 above). In particular, the Court of Cassation, which had authority, among others, to verify issues concerning the effective serving of notice and had an obligation to quash a judgment given by a lower court in the event that it was established that a party had not been duly notified of a hearing (see paragraph 22 above), provided a detailed answer to the applicant’s complaint about the notification procedure.

36 . The applicant put in doubt whether the letters were actually sent and denied having received them. However, those allegations are not sufficient for the Court to reach a different conclusion than that of the national courts. It is not normally within its province to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them (see, mu tatis mutandis, Klaas v. Germany , 22 September 1993, § 29, Series A no. 269). Moreover, the Court should not act as a court of fourth instance and will not question under Article 6 § 1 the judgment of national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable ( see Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015).

37 . The Court must always assess proceedings as a whole, including decisions delivered by an appellate court (see, for instance, Shtukaturov v. Russia , no. 44009/05, § 75 , ECHR 2008 ). As can be seen from the case file, the applicant submitted his written arguments in his notice of appeal as well as in his reply to the notice of the cassation appeal and in his second cassation appeal to the Supreme Court. He participated in the hearing of 11 February 2008 before the Court of Appeal and in the hearing of 9 October 2008 before the Court of Cassation. The applicant had an adequate opportunity to advance his arguments before the domestic court s, which convincingly addressed them.

38 . In view of the above, the Court concludes that the applicant’s right to a fair trial had not been infringed.

39 . It follows that this complaint 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 26 March 2020 .

Victor Soloveytchik Yonko Grozev Deputy Registrar President