ODINOKOV v. UKRAINE

FIFTH SECTION

DECISION

Application no. 71511/16
Sergiy Valeriyovych ODINOKOV
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 17 October 2024 as a Committee composed of:

 María Elósegui, President,
 Kateřina Šimáčková,
 Stéphane Pisani, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 71511/16) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 20 November 2016 by a Ukrainian national, Mr Sergiy Valeriyovych Odinokov (“the applicant”), who was born in 1980, lives in Kropyvnytskyy and was represented by Mr K.V. Belashov, a lawyer practising in Kropyvnytskyy;

the decision to give notice of the application to the Ukrainian Government (“the Government”), represented by their Agent, Ms Marharyta Sokorenko;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1.  The application concerns the right to adversarial proceedings and, particularly, the right to submit new evidence to a commercial court of appeal. The applicant complained under Article 6 of the Convention.

2.  The applicant, a private entrepreneur, rented a one-room shop at a local market, where he conducted his retail business.

3.  On 26 June 2015 a fire broke out in the applicant’s shop, destroying it and damaging an adjacent shop, the owner of which, K., applied to his insurance company for compensation. The insurance company paid K. 55,000 Ukrainian hryvnias (UAH) and filed a subrogation claim against the applicant, claiming reimbursement of the above amount.

4.  On 21 April 2016 the Kirovograd Regional Commercial Court heard the case against the applicant in his absence, allowing the claim and ordering the applicant to reimburse UAH 55,000 to the insurance company. That court based its decision on, inter alia, the expert report dated 27 July 2015, which stated that the cause of the fire was the thermal electric power generation resulting from a user’s failure to abide by the electrical safety rules. In relation to the applicant’s absence, the first-instance court stated that a registered letter with a copy of a decision to open the proceedings and a summons to the hearing had been sent to the applicant’s home address as registered in the Unified State Register of Legal Entities and Individual Entrepreneurs (“the USRLEIE”) and had been returned undelivered owing to the expiry of the time-limit for its storage. The court proceeded with the hearing, relying on Article 64 of the Code of Commercial Procedure, which stated, inter alia, that when a letter had been sent to a home address indicated in the USRLEIE and was returned undelivered, the person in question had to be regarded as having been informed of the hearing.

5.  On 11 May 2016 the applicant appealed and asked for the time-limit for lodging an appeal to be restored, as he had not received the decision dated 21 April 2016 – the full version of which was prepared on 25 April 2016 ‑ until 10 May 2016, whereas the deadline for appeal had been ten days counting from the date of receipt of the full version of the decision. The applicant asked the appellate court to admit new evidence, namely an expert report dated 16 February 2016, which stated that the cause of the fire had been the breach of the electrical safety rules when the shop’s electricity cables had been connected to the city’s main grid. The applicant argued that he had not been informed of the court proceedings and therefore could not have submitted that evidence before the first-instance court.

6.  On 20 May 2016 the Dniprovskyi Commercial Court of Appeal restored the time-limit for lodging an appeal.

7.  On 9 August 2016 the Court of Appeal upheld the decision of the first‑instance court. The appellate court refused to admit the expert report dated 16 February 2016 on the grounds that the applicant had failed to submit his report to the first-instance court and had not provided any compelling reason for not doing so. On 26 October 2016 the Higher Commercial Court of Ukraine upheld the decisions of the lower courts.

THE COURT’S ASSESSMENT

8.  The applicant complained under Article 6 of the Convention that his right to a fair hearing had been breached, as he had not been aware of the commercial proceedings against him or of the hearing on 21 April 2016, and that the appellate court had not admitted his new evidence.

9.  The general principles relating to the principle of equality of arms are set out in Regner v. the Czech Republic ([GC], no. 35289/11, §§ 146-47, 19 September 2017).

10.  The Court observes that the decision to open the proceedings and the summons to the hearing were sent by registered mail to the applicant’s home address as recorded in the USRLEIE. The applicant did not argue that the information contained in that register had been incorrect. Moreover, the applicant received a copy of the decision of the first-instance court dated 21 April 2016, which was sent to the same address (see paragraph 5 above).

11.  The Court reiterates that Article 6 § 1 cannot be interpreted as prescribing a specific form of service of documents (see Avotiņš v. Latvia [GC], no. 17502/07, § 119, 23 May 2016). Moreover, whilst the fundamental principle that proceedings should be adversarial requires that court documents should be duly served on a litigant, Article 6 of the Convention does not go so far as to oblige the domestic authorities to provide a perfectly functioning postal system (see Lazarenko and Others v. Ukraine, nos. 70329/12 and 5 others, § 37, 27 June 2017). Therefore, the authorities may only be held responsible for failure to send the relevant documents to the applicant (see Voytsekhovskyy v Ukraine [Committee] (dec.), no. 41881/18, § 10, 26 January 2023), which was not the case here.

12.  Furthermore, the appellate court dismissed the applicant’s argument that he had not received a copy of the decision opening the proceedings or the summons to the hearing of 21 April 2016 as grounds for admitting his new evidence, finding that argument to be without merit. The applicant has not substantiated argument capable of calling into question the appellate court findings.

13.  Consequently, the Court finds that the State discharged its obligation to inform the applicant of the court proceedings and of the hearing of 21 April 2016 and that the applicant’s complaint that he had not had an opportunity to present his case is manifestly ill-founded.

14.  It follows that the application must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 14 November 2024.

 Martina Keller María Elósegui
 Deputy Registrar President