FIFTH SECTION

CASE OF YAKOVLYEVA v. UKRAINE

(Application no. 50704/15)

JUDGMENT

STRASBOURG

14 December 2023

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

In the case of Yakovlyeva v. Ukraine,

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

Mārtiņš Mits , President , Kateřina Šimáčková, Mykola Gnatovskyy , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 23 November 2023,

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

PROCEDURE

1. The case originated in an application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 3 October 2015.

2. Notice of the application was given to the Ukrainian Government (“the Government”).

THE FACTS

3. The applicant’s details and information relevant to the application are set out in the appended table.

4. The applicant complained that she had been deprived of an opportunity to comment on the appeal lodged by the defendant in her case. She also raised other complaints under the provisions of the Convention.

THE LAW

5. The applicant complained under Article 6 § 1 of the Convention that the principle of equality of arms had been breached on account of the domestic courts’ failure to serve the appeal on her or otherwise inform her of the appeal lodged in her case.

6. 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).

7. 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).

8. In the leading cases of Lazarenko and Others v. Ukraine (nos. 70329/12 and 5 others, 27 June 2017) and Strizhak v. Ukraine (no. 72269/01, 8 November 2005), the Court already found a violation in respect of issues similar to those in the present case.

9. Having examined all the material submitted to it and lacking any evidence of proper notification of the applicant, 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 appeal lodged in the applicant’s case without attempting to ascertain whether it had been served on the applicant or whether the applicant had been informed of the appeal by any other means, the domestic courts deprived the applicant of the opportunity to comment on the appeal lodged in her case and fell short of their obligation to respect the principle of equality of arms enshrined in Article 6 of the Convention.

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

11. The applicant submitted other complaints which also raised issues under Article 1 of Protocol No.1 to the Convention, given the relevant well-established case-law of the Court (see appended table). These complaints are not manifestly ill-founded within 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 the case set out in the appended table.

12. Regard being had to the documents in its possession and to its case ‑ law, the Court considers it reasonable to award the sum indicated in the appended table.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, the amount 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 amount at a rate equal to the 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 14 December 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina Mārtiņš Mits Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention

(failure to notify the applicant of the other party’s submissions or of a hearing)

Application no.

Date of introduction

Applicant’s name

Year of birth

Nature of the dispute

First-instance hearing/ decision date

Court

Appeal hearing/ decision date

Court

Date of the decision on cassation appeal, if applicable

Court

Specific irregularity

Case-law

Other relevant information

Other complaints under well-established case-law

Amount awarded for non-pecuniary damage and costs and expenses per applicant

(in euros) [1]

50704/15

03/10/2015

Svitlana Leonidivna YAKOVLYEVA

1948

pension recalculation

12/08/2010

Mykolaiv Zavodskyi District Court

04/06/2014

Odesa Administrative Court of Appeal

14/04/2015

High Administrative Court

Failure to inform the applicant of the defendant’s appeal and of proceedings before the Court of Appeal

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

- quashing of a judgment in breach of the principle of legal certainty: the pension authority lodged its appeal against the first-instance judgment in the applicant’s favour (of which it had known at least from September 2011) on 10/01/2014, citing as the only reason for delay its "inventory" of pension recalculation judgments. The Court of Appeal extended the time-limit without justification and quashed the judgment ( Ponomaryov v. Ukraine , no. 3236/03,

§ 43-47, 3 April 2008).

650

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