Lexploria

FIFTH SECTION

CASE OF ISAYEV AND OTHERS v. UKRAINE

( Application s no s . 1292/14 and 16 others -

see appended list )

JUDGMENT

STRASBOURG

6 December 2018

This judgment is final but it may be subject to editorial revision.

In the case of Isayev and Others v. Ukraine ,

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

Síofra O ’ Leary, President, Mārtiņš Mits, Lado Chanturia, judges, and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 15 November 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the various dates indicated in the appended table.

2. The applications were communicated to the Ukrainian Government (“the Government”).

THE FACTS

3. The list of applicants and the relevant details of the applications are set out in the appended table.

4. The applicants complained that they were deprived of an opportunity to comment on the appeals lodged by the defendants in their cases. Some applicants also raised other complaints under the provisions of the Convention.

THE LAW

I. JOINDER OF THE APPLICATIONS

5. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. THE LOCUS STANDI OF MS OLENA VASYLIVNA SIROZHENKO

6. As concerns the complaints raised by the applicant in application no. 42952/14 , the Court notes that the applicant died on 27 March 2015, while the case was pending before the Court. The applicant ’ s wife, Ms Olena Vasylivna Sirozhenko, has requested to pursue the application on her husband ’ s behalf. As the request is in line with its case-law, the Court sees no reason to refuse it (see, among other authorities, Petr Korolev v. Russia , no. 38112/04, §§ 43-45, 21 October 2010; Sergey Denisov and Others v. Russia , nos. 1985/05 and 4 others, §§ 73-75, 19 April 2016; Benyaminson v. Ukraine , no. 31585/02, § 83, 26 July 2007; and Horváthová v. Slovakia , no. 74456/01, §§ 25-27, 17 May 2005). However, reference will still be made to the applicant throughout the present text.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

7. The applicants complained that the principle of equality of arms had been breached on account of the domestic courts ’ failure to serve appeals on them or otherwise inform them of the appeals lodged in their cases. They relied on Article 6 § 1 of the Convention, which reads as follows:

Art icle 6 § 1

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

8. 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 , 2 3 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). 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 Avotiņš v. Latvia [GC], no. 17502/07, § 119, ECHR 2016, and Dombo Beheer B.V. v. the Netherlands , 27 October 1993, § 33, Series A no. 274). 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).

9. It may, therefore, be incumbent on the domestic courts to ascertain that their summonses or other documents have reached the parties sufficiently in advance and, where appropriate, record their findings in the text of the judgment (see Gankin and Others v. Russia , nos. 2430/06 et al, § 36, 31 May 2016). 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).

10. In the leading case of Lazarenko and Others v. Ukraine, (nos. 70329/12 and 5 others, 27 June 2017), the Court already found a violation in respect of issues similar to those in the present case.

11. Having examined all the material submitted to it and lacking any evidence of proper notification of the applicants, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court finds that by proceeding to consider the appeals lodged in the applicants ’ cases without attempting to ascertain whether they were served on the applicants or whether the applicants were informed of the appeals by any other means, the domestic courts deprived the applicants of the opportunity to comment on the appeals lodged in their cases and fell short of their obligation to respect the principle of equality of arms enshrined in Article 6 of the Convention.

12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.

IV. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW

13. The applicants in applications nos. 30523/14, 29820/15, 16469/16 and 66870/17 submitted other complaints under the articles of the Convention and its Protocols which also raised issues, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded w ithin the meaning of Article 35 § 3 (a) of the Convention, nor are they inadmissible on any other ground. Accordingly, they must be declared admissible. Having examined all the material before it, the Court concludes that they also disclose violations of the Convention in the light of its findings in Ustimenko v. Ukraine ( no. 32053/13 , §§ 48-54, 29 October 2015) and Ponomaryov v. Ukraine (no. 3236/03, §§ 40-42, 43 and 47, 3 April 2008).

V. APPLICATION OF ARTICLE 41 OF THE CONVENTION

14. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

15. Regard being had to the documents in its possession and to its case-law, the Court considers it reasonable to award the sums indicated in the appended table.

16. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Decides to join the applications;

2. Decides that Ms Sirozhenko , the wife of the applicant in application no. 42952 / 14 , has locus standi in the proceedings;

3. Declares the applications admissible;

4 . Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the unfairness of the civil proceedings ;

5 . Holds that there has been a violation of the Convention and its Protocols as regards the other complaints raised under well-established case-law of the Court (see appended table);

6 . Holds

(a) that the respondent State is to pay the applicants, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 6 December 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Síofra O ’ Leary Acting D eputy Registrar President

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention

( lack of opportunity to comment on the appeal )

No.

Application no.

Date of introduction

Applicant ’ s name

Date of birth

Representative ’ s name and location

Date of the First instance court decision

Date of the Court of appeal decision

Date of the Higher Administrative Court (“HAC”) ruling on appeal on points of law, if applicable

Other complaints under well-established case-law

Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]

1292/14

17/12/2013

Oleksandr Vasylyovych Isayev

29/12/1949

10/05/2011

Novomoskovskyy Local Court of Dnipropetrovsk

28/01/2013

Dnipropetrovsk Administrative Court of Appeal

-

500

3478/14

17/12/2013

Olena Zinoviyivna Grybnikova

03/03/1954

29/06/2011

Pechersky District Court of Kyiv

10/04/2012

Kyiv Administrative Court of Appeal

-

500

4504/14

17/12/2013

Oleg Ivanovych Levchenko

01/01/1949

22/11/2011

Komsomolskyy Local Court of Kherson

08/11/2012

Odesa Administrative Court of Appeal

-

500

9300/14

26/12/2013

Sergey Mikhaylovich Valuyskiy

09/01/1960

Lyubov Sergiyivna Styeksova

Kamyanske

08/10/2008

Artemivskyy District Court of Lugansk

02/12/2008

Donetsk Administrative Court of Appeal

29/04/2010

500

17084/14

17/02/2014

Vira Oleksiyivna Ushchapovska

06/09/1951

01/07/2011

Desnyanskyy Local Court of Kyiv

24/01/2013

Kyiv Administrative Court of Appeal

-

500

27866/14

31/03/2014

Lyudmyla Georgiyivna Zagoruyko

18/10/1952

04/07/2011

Saksaganskyy Local Court of Kryvyy Rig

07/10/2013

Dnipropetrovsk Administrative Court of Appeal

-

500

30523/14

08/04/2014

Mykola Stepanovych Legkodukh

09/04/1953

10/12/2010

Shevchenkivskyy District Court of Zaporizhzhya

07/06/2013

Dnipropetrovsk Administrative Court of Appeal

-

Art. 6 (1) - breach of the principle of legal certainty - the first-instance court judgment of 10/12/2010 was quashed on appeal, although the appeal was lodged outside the statutory time-limit with no justification of the delay

650

42952/14

21/05/2014

Oleksandr Georgiyovych Sirozhenko

06/09/1958

The applicant died on 27/03/2015.

Ms Olena Vasylivna Sirozhenko has the quality of heir.

24/10/2011

Dzerzhynsky District Court of Kryvy Rig

23/09/2013

Dnipropetrovsk Administrative Court of Appeal

-

500

52866/14

14/04/2014

Fedir Dmytrovych Donets

13/09/1938

24/09/2013

Irpin Local Court of Kyiv Region

13/11/2013

Kyiv Administrative Court of Appeal

-

500

55268/14

30/07/2014

Leonid Dmytrovych Trykulych

25/01/1945

20/07/2011

Zhovtnevy District Court of Kryvy Rig

21/10/2013

Dnipropetrovsk Administrative Court of Appeal

-

500

55323/14

31/07/2014

Vasyl Kostyantynovych Klyvets

08/02/1951

07/07/2011

Tsentralno-miskyy Local Court of Kryvyy Rig

16/05/2013

Dnipropetrovsk Administrative Court of Appeal

-

500

68947/14

30/12/2014

Lyubov Mykhaylivna Khazaryan

19/09/1948

17/03/2011

Konotop City Court of Sumy Region

02/03/2012

Kharkiv Administrative Court of Appeal

-

500

23384/15

30/04/2015

Stanislav Leonidovych Makiyevskyy

18/10/1946

11/07/2011

Leninsky District Court of Vinnytsia

21/03/2013

Vinnytsia Administrative Court of Appeal

-

500

29820/15

05/06/2015

Mykola Kostyantynovych Omelchuk

16/09/1946

Mykhaylo Oleksandrovych Tarakhkalo

Kyiv

30/05/2011

Prymorskyy Local Court of Odesa

12/12/2014

Odesa Administrative Court of Appeal

-

Art. 6 (1) - breach of the principle of legal certainty - The judgment of the Prymorskyy Local Court of Odesa of 30/05/2011, final and enforceable as of 09/06/2012, was quashed by the Odesa Administrative Court of Appeal on 12/12/2014 on the basis of the defendant ’ s appeal lodged outside the established time limits.

650

16469/16

18/03/2016

Lyudmyla Ivanivna Kulshytska

19/05/1950

28/04/2011

Moskovskyi Local Court of Kharkiv

24/02/2012

Kharkiv Administrative Court of Appeal

-

Art. 6 (1) - breach of the principle of legal certainty - The judgment of the Moskovskyi Local Court of Kharkiv of 28/04/2011, final and enforceable, was quashed by the Kharkiv Administrative Court of Appeal on 24/02/2012 on the basis of the defendant ’ s appeal lodged outs ide the established time-limits

Prot. 1 Art. 1 - interference with peaceful enjoyment of possessions

- unlawful quashing of the local court ’ s decision by which the applicant was essentially deprived of her pension

650

59571/17

04/08/2017

Mykola Trokhymovych Romanenko

23/09/1946

18/03/2011

Brovary Local Court of Kyiv Region

24/11/2011

Kyiv Administrative Court of Appeal

-

500

66870/17

31/08/2017

Andriy Kostyantynovych Levchenko

13/12/1941

Mykhaylo Oleksandrovych

Tarakhkalo

Kyiv

13/06/2016

Kyivskyy Local Court of Odesa

01/03/2017

Odesa Administrative Court of Appeal

-

Art. 6 (1) - breach of the principle of legal certainty - The judgment of the Kyivskyy Local Court of Odesa of 13/06/2016, final and enforceable as of 23/06/2016, was quashed by the Odesa Administrative Court of Appeal on 01/03/2017 on the basis of the defendant ’ s appeal lodged outside the established time limits.

650[1] . Plus any tax that may be chargeable to the applicants.

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CASE OF ISAYEV AND OTHERS v. UKRAINE

CASE OF ISAYEV AND OTHERS v. UKRAINE

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