FIFTH SECTION
CASE OF ISAYEV AND OTHERS v. UKRAINE
(Applications nos. 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:
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. 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 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 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 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
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 outside 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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