FIFTH SECTION
CASE OF BOLYUKH AND OTHERS v. UKRAINE
(Applications nos. 42991/13 and 3 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 Bolyukh 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. Notice of the applications was given 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 LYUDMYLA GRYGORIVNA ONISHCHENKO
6. As concerns the complaints raised by the applicant in application no. 52191/13, the Court notes that the applicant died on 15 September 2016, while the case was pending before the Court. The applicant’s wife, Ms Lyudmyla Grygorivna Onishchenko, 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:
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 Onishchenko, the wife of the applicant in application no. 52191/13, 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 6 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtSíofra O’Leary
Acting Deputy RegistrarPresident
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
Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant
(in euros)[1]
42991/13
20/06/2013
Pavlo Volodymyrovych Bolyukh
19/06/1950
23/02/2011
Ladyzhyn Court
18/10/2012
Vinnytsya Administrative Court of Appeal
500
52191/13
08/08/2013
Mykola Oleksiyovych Onishchenko
10/08/1952
The applicant died on 15/09/2016.
His wife, Lyudmyla Grygorivna Onishchenko has the quality of heir.
03/10/2011
Zhovtnevyy District Court of Kryvyy Rig
15/03/2013
Dnipropetrovsk Administrative Court of Appeal
500
57216/13
27/08/2013
Mykola Mykolayovych Mamekin
10/11/1949
30/05/2011
Zhovtnevyy District Court of Kryvyy Rig
29/01/2013
Dnipropetrovsk Administrative Court of Appeal
500
20411/14
26/02/2014
Oleg Mykolayovych Bakulin
27/12/1964
10/08/2011
Frunzenskyy District Court of Kharkiv
20/11/2013
Kharkiv Administrative Court of Appeal
500
[1]. Plus any tax that may be chargeable to the applicants.
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