FIFTH SECTION

CASE OF ZAVALIY AND OTHERS v. UKRAINE

(Applications nos. 23342/14 and 3 others)

JUDGMENT

STRASBOURG

20 September 2022

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

In the case of Zavaliy and Others v. Ukraine,

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

Ivana Jelić, President, Ganna Yudkivska, Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar,

Having regard to:

the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints set out in § 1 below to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 2 June 2022,

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

SUBJECT MATTER OF THE CASE

1. The applicants alleged that the opening of appeal proceedings and the quashing of a judgment in their favour breached the principle of legal certainty under Article 6 § 1 of the Convention. The applicant in application no. 42968/15 also alleged that the above-mentioned actions breached Article 1 of Protocol No. 1.

2. The Government contested those allegations.

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

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

5. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

6. The Court has already found violations of the principle of legal certainty in similar circumstances in Ponomaryov v. Ukraine (no. 3236/03, 3 April 2008) and Ustimenko v. Ukraine (no. 32053/13, 29 October 2015). Having regard to the circumstances of the present applications as set out in the appended table, the Court sees no reason to reach a different conclusion in the present case. The courts, in breach of the principle of legal certainty, accepted for examination, without giving sufficient reasons, and allowed appeals lodged outside the statutory ten-day time-limit for appealing.

7. There has accordingly been a violation of Article 6 § 1 of the Convention in respect of all the applicants.

8. The applicant in application no. 42968/15 also raised a complaint under Article 1 of Protocol No. 1 to the Convention. The Court has examined this part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

9. It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

10. Having regard to the documents in its possession and in view of the nature of the violation found, the Court considers it reasonable to award the amounts indicated in the appendix, plus any tax that may be chargeable to the applicants, and dismisses the remainder of the claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage and in respect of costs and expenses, 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 20 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Ivana Jelić Deputy Registrar President

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention (breach of the principle of legal certainty):

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Date of the first instance court decision

Date of the appeal submission

Final decision

Costs and expenses per applicant

(in euros)

Amount awarded for non-pecuniary damage

1.

23342/14

Zavaliy

v. Ukraine

15/04/2014

Marya Fedorivna ZAVALIY 1991 Dnipropetrovsk Ukrainian

24/06/2011

17/10/2011

Dnipropetrovsk Administrative Court of Appeal, 05/09/2013

(sent to the applicant on 23/06/2014)

25

500

2.

42968/15

Tetelbaum v. Ukraine

20/08/2015

Dmytro Mykhaylovych TETELBAUM 1959 Kharkiv Ukrainian

19/05/2014

23/02/2015

High Specialised Court for Civil and Criminal Matters, 14/05/2015

500

500

3.

1686/17

Mozgovyy v. Ukraine

22/12/2016

Volodymyr Volodymyrovych MOZGOVYY 1965 Zhytomyr Ukrainian

14/04/2016

04/07/2016

Zhytromyr Administrative Court of Appeal, 15/09/2016

500

4.

64516/17

Oleksyuk v. Ukraine

17/08/2017

Ganna Ivanivna OLEKSYUK 1954 Kharkiv Ukrainian

06/06/2016

06/01/2017

Kharkiv Administrative Court of Appeal, 22/02/2017

500