Lexploria

FIFTH SECTION

CASE OF PECHENIZKYY AND OTHERS v. UKRAINE

( Application s no s . 63510/11 and 18 others -

see appended list )

JUDGMENT

STRASBOURG

8 November 2018

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

In the case of Pechenizkyy and Others v. Ukraine ,

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

Yonko Grozev , President, Gabriele Kucsko-Stadlmayer , Lәtif Hüseynov , judges, and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 11 October 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 .

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 TAMARA PAVLIVNA KALASHNIKOVA

6. As concerns the complaints raised by the applicant in application no. 39965/13, the Court notes that the applicant died on 18 January 2018, while the case was pending before the Court. The applicant ’ s wife, Ms Tamara Pavlivna Kalashnikova , 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, Benyaminson v. Ukraine , no. 31585/02, § 83, 26 July 2007; 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; 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:

Article 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 , 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). 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. APPLICATION OF ARTICLE 41 OF THE CONVENTION

13. 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.”

14. 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.

15. 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 Kalashnikova , the wife of the applicant in application no. 39965/13, 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

(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 8 November 2018 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Yonko Grozev 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

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

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

63510/11

30/09/2011

Sergiy Mykolayovych Pechenizkyy

06/04/1963

28/02/2011

Velykoburluk Local Court of Kharkiv Region

15/04/2011

Kharkiv Administrative Court of Appeal

500

35026/12

24/05/2012

Fedir Ivanovych Kotlenko

13/06/1946

27/01/2011

Krasnogvardiyskyy Local Court of Dnipropetrovsk

16/01/2012

Dnipropetrovsk Administrative Court of Appeal

500

48019/12

19/07/2012

Valentyna Ivanivna Gryb

08/07/1951

20/05/2011

Samarskyi Local Court of Dnipropetrovsk

28/05/2012

Dnipropetrovsk Administrative Court of Appeal

500

65722/12

05/10/2012

Leonid Oleksiyovych Petrov

16/06/1951

26/05/2011

Amur- Nyzhniodniprovskyy Local Court of Dnipropetrovsk

27/02/2012

Dnipropetrovsk Administrative Court of Appeal

500

71273/12

19/10/2012

Nataliya Oleksandrivna Kazakova

20/03/1954

20/07/2011

Leninskyy District Court of Dnipropetrovsk

24/05/2012

Dnipropetrovsk Administrative Court of Appeal

500

74771/12

12/11/2012

Viktor Petrovych Levachov

26/07/1946

17/06/2011

Leninskyy Local Court of Dnipropetrovsk

14/06/2012

Dnipropetrovsk Administrative Court of Appeal

500

21094/13

16/03/2013

Nina Leonidivna Malenko

24/07/1951

06/05/2011

Konotop Local Court of Sumy Region

28/09/2012

Kharkiv Administrative Court of Appeal

04/01/2013

500

24346/13

29/03/2013

Galina Nikolayevna Noskova

15/08/1946

29/07/2011

Leninskyy Local Court of Sevastopol

16/02/2012

Sevastopol Administrative Court of Appeal

500

29598/13

23/04/2013

Tetyana Valentynivna Glembotska

08/01/1949

22/02/2011

Babushkinskyi Local Court of Dnipropetrovsk

16/07/2012

Dnipropetrovsk Administrative Court of Appeal

500

34757/13

22/05/2013

Lyubov Logvinivna Kermas

06/05/1947

15/08/2011

Kirovskyy Local Court of Dnipropetrovsk

27/06/2012

Dnipropetrovsk Administrative Court of Appeal

500

37671/13

31/05/2013

Nina Afanasiyivna Khyzhnyak

23/08/1953

10/06/2011

Amur- Nyzhnyodniprovskyy Local Court of Dnipropetrovsk

24/01/2013

Dnipropetrovsk Administrative Court of Appeal

500

39965/13

11/06/2013

Viktor Ivanovich Romadanovskiy

30/03/1939

The applicant died on 18/01/2018. His wife, Tamara Pavlivna Kalashnikova , has the quality of heir.

26/07/2011

Kyivskyy Local Court of Odesa

05/09/2012

Odesa Administrative Court of Appeal

18/12/2012

500

47881/13

18/07/2013

Pavlo Semenovych Kavun

27/07/1953

17/06/2011

Leninskyy Local Court of Dnipropetrovsk

15/02/2013

Dnipropetrovsk Administrative Court of Appeal

500

52206/13

08/08/2013

Viktor Volodymyrovych Tymofiyev

03/12/1949

03/10/2011

Zhovtnevyi Local Court of Kryvyi Rih

21/12/2012

Dnipropetrovsk Administrative Court of Appeal

500

55129/13

17/08/2013

Sergiy Grygorovych Lobanov

18/08/1949

02/09/2011

Shevchenkivskyy Local Court of Kyiv

11/10/2012

Kyiv Administrative Court of Appeal

500

63197/13

26/09/2013

Oleksandr Georgiyovych Masiyan

20/08/1948

26/05/2011

Shevchenkivskyy District Court of Chernivtsi

27/03/2013

Vinnytsya Administrative Court of Appeal

500

66585/13

15/10/2013

Lyubov Mykhaylivna Savelyeva

10/08/1951

20/06/2011

Krasnogvardiysk Local Court of Dnipropetrovsk

29/10/2012

Dnipropetrovsk Administrative Court of Appeal

500

70813/13

31/10/2013

Volodymyr Dmytriyovych Bogoslavskyy

13/09/1948

05/08/2011

Leninskyi Local Court of Dnipropetrovsk

15/11/2012

Dnipropetrovsk Administrative Court of Appeal

500

79383/13

27/11/2013

Volodymyr Ivanovych Dzyadukh

27/08/1939

29/04/2011

Khmelnytskyi Local Court

05/06/2013

Vinnytsya Administrative Court of Appeal

13/08/2013

500[1] . Plus any tax that may be chargeable to the applicants.

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CASE OF PECHENIZKYY AND OTHERS v. UKRAINE

CASE OF PECHENIZKYY AND OTHERS v. UKRAINE

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