FIFTH SECTION
DECISION
Application no. 64766/12
Ivan Leontiyovych YEREMEYEV
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 26 March 2019 as a Committee composed of:
Síofra O’Leary, President,
Ganna Yudkivska,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 26 September 2012,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ivan Leontiyovych Yeremeyev, is a Ukrainian national, who lives in Luhansk. He was represented before the Court by Ms L. Steksova, a lawyer admitted to practice in Luhansk and residing in Kamyanske, Dnipropetrovsk Region.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is a former manager of a company with State capital. The Government agency managing State assets (the plaintiff) sued him for damages in connection with a contract he signed on behalf of that company. Having examined the case in a number of hearings from July 2007 to May 2009, on 8 May 2009 the first instance court allowed the claim and awarded damages. As one of the key reasons, the court cited the fact that the applicant’s fault had already been established in prior criminal proceedings against him.
5. On 10 September 2009 the Luhansk Regional Court of Appeal allowed the applicant’s appeal, overturned the judgment and rejected the claim for damages against him finding that, regardless of the findings in the previous criminal proceedings, there was no causal connection between his actions and the State’s loss.
6. The plaintiff appealed on points of law outside of the two-month time-limit, asking that the time-limit be renewed. The date when the appeal was lodged and the reason for the request to renew the time-limit are not known: no copy of the appeal or of the request for renewal of the time-limit has been submitted to the Court. According to the applicant, the appeal was lodged “approximately” in August 2010.
7. On 11 October 2010 a Supreme Court judge renewed the time-limit for the appeal, initiated proceedings for review of the Court of Appeal’s decision on points of law, ordered that a copy of the appeal be sent to the applicant and set 30 November 2010 as the time-limit for his reply. No appeal lay against that decision. The judge’s decision, a copy of which has been submitted to the Court, does not refer to the reasons for which the request to renew was granted.
8. According to the applicant, he never received that decision (see paragraph 23 below) and, therefore, had no knowledge of the defendant’s appeal.
9. Within the framework of the 2010-2011 court reform (see paragraph 17 below) the High Court for Civil and Criminal Matters (“the High Court”) replaced the Supreme Court as the court competent to examine appeals on points of law in civil cases. Accordingly, on 16 November 2011 the Supreme Court decided to transfer the appeal to the High Court.
10. The applicant alleged that the High Court had to issue another decision initiating proceedings for review on points of law in his case. According to him, it had failed to do so and to inform him of any such decision.
11. On 14 December 2011 the High Court, sitting in camera, examined the appeal, endorsed the first-instance court’s reasoning, quashed the ruling on appeal and allowed the claim for damages. That decision was final.
12. According to the Government, the applicant was informed of this decision on 22 December 2011. In support of this assertion they provided a letter from the head of the commission in charge of winding up the High Court (which had been wound up as part of the 2016 court reform, see paragraph 18 below). According to the letter, the High Court’s records showed that the decision of 14 December 2011 had been sent to the parties by registered letter on 22 December 2011.
13. According to the applicant, he never received the High Court’s decision of 14 December 2011 and only learned about it on 13 July 2012 when the Bailiffs informed him that they started execution of the High Court’s decision (see paragraph 23 below).
B. Relevant domestic law
14. Articles 73 and 76 of the 2004 Code of Civil Procedure, as worded at the material time, provided that court notifications had to be sent by registered letter or by courier, with a delivery receipt, and required signature on delivery. The person delivering the document had to return the signed delivery slip to the sending court. In the case of an absent addressee, the person delivering the document had to make a note on the document to be delivered. A delivery slip or, in the case of an absent addressee or a refusal to accept the document, the document itself had to be returned to the court with a note explaining reasons for failure of service.
15. Article 325 of the Code, as worded at the material time, provided for a two-month time-limit for appeals on points of law.
16. By Order No. 22 of 11 February 2010 the State Court Administration approved the List of court files and documents produced by courts. Item 15 of the List provides that documents related to appeal proceedings had to be kept for at least five years and could be destroyed, subject to a number of conditions, after that period.
17. 2010 Judicial Organisation Act entered into force in August 2010. It introduced amendments to the Code of Civil Procedure which made the High Court, instead of the Supreme Court, competent to examine appeals on points of law in civil cases. Subsequently, Law no. 3932-VI of 20 October 2011 provided that appeals lodged with the Supreme Court under the old rules but not examined by that court by 1 November 2011 would be transferred to and examined by the High Court.
18. 2016 Judicial Organisation Act provided for the winding up of the High Court. Its functions and assets were taken over by the newly established Supreme Court.
COMPLAINTS
19. The applicant complained, under Article 6 § 1 of the Convention, that he had not been informed of the High Court’s decision to initiate proceedings for review on points of law in his case and that this had deprived him of the opportunity to reply to the arguments raised by the opposing party in its appeal.
20. The applicant also complained under Article 6 § 1 of the Convention that the unjustified renewal of the time-limit for appeal in his case had breached the principle of legal certainty.
THE LAW
21. The applicant complained of the above-mentioned violations of Article 6 § 1 of the Convention, which reads, insofar as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The parties’ submissions
22. The Government submitted that the domestic case file had been lost in the territory of the Luhansk Region outside of the Government’s control (see Khlebik v. Ukraine, no. 2945/16, §§ 9-12, 25 July 2017). At the same time, relying on the letter from the High Court’s winding-up commission (see paragraph 12 above) they submitted that the applicant had lodged his application before the Court outside of six-month time-limit, to be counted from 22 December 2011, when, according to the High Court’s records, that court’s decision of 14 December 2011 had been sent to the parties.
23. In his application form the applicant submitted that he had not been informed of the High Court’s decision to initiate proceedings for review on points of law in his case and that this had deprived him of the opportunity to reply to the arguments raised by the opposing party in its appeal. He alleged that he had only learned about the High Court’s final decision of 14 December 2011 in his case from the Bailiffs, on 13 July 2012 (see paragraph 13 above). According to the applicant, in the domestic case file, there was no document showing that the High Court had sent him its final decision of 14 December 2011. The applicant also stated that no Supreme Court decision had been delivered to his address (на адресу Заявника жодна ухвала Верховного Суду не находила).
24. The applicant submitted no observations in reply to those of the Government within the time-limit allowed.
B. The Court’s assessment
25. The Court notes the Government’s submissions to the effect that the applicant lodged his application outside of the six-month period, to be counted from 22 December 2011, when, according to the Government, the applicant was informed of the decision of the High Court in his case. This raises mainly a question of fact. However, the Court is aware that parties currently face difficulties in substantiating their factual assertions on this and other matters in this case since, to the extent that the case file still exists, it is not in the territory under the Government’s control. In any event, the domestic file may have already been destroyed by 26 March 2018, the date on which the application was communicated to the Government (see paragraph 16 above). Those difficulties, however, arose in 2014 and there is no indication that the applicant faced any difficulty in accessing the domestic case file prior to lodging his application with the Court. His statements indicate that he did in fact examine that case file prior to lodging his application (see paragraph 23 above).
26. Therefore, the Court does not consider it necessary, under the circumstances, to rule on the Government’s objection since the application is in any event manifestly ill-founded for the following reasons.
27. To the extent that the applicant alleged that he had not been informed of the High Court’s decision initiating proceedings in his case, the Court notes that the procedure before the High Court was a mere continuation of the appeal proceedings initiated before the Supreme Court and involved examination of the same appeal; the change in jurisdiction resulting simply from the 2010-2011 court reform. The applicant did not allege that any new circumstance arose in the course of the proceedings before the High Court which required his comment.
28. The crucial question, therefore, is whether the applicant was informed of the Supreme Court’s decision of 11 October 2010 (see paragraph 7 above), sent a copy of the opposing party’s appeal and given an opportunity to comment on it on that occasion. If that was the case, that would have been sufficient to meet the requirements of Article 6 § 1 of the Convention in the circumstances.
29. Domestic law required that the decision of the Supreme Court and the copy of the appeal be sent to the applicant by registered letter and that proof of service be kept by the court (see paragraph 14 above). It is apparent from the applicant’s statements in the application form that, prior to lodging his application, he had examined the domestic case file. Because proof of sending court documents had to be kept in the file, the examination of the file should have revealed to the applicant that such proof was lacking. But his application form is silent on that point. In it, he stated that there was no proof in the domestic file that the High Court’s decision of 14 December 2011 had been sent to him. By contrast, he alleged no such thing in respect of the Supreme Court’s decision of 11 October 2010. He only stated, in so many words, that that decision had not arrived at his address (see paragraph 23 above). He did not elucidate the latter statement in any way.
30. In this context the Court would stress that Article 6 of the Convention does not require the domestic authorities to provide a perfectly functioning postal system (see, for example, Lazarenko and Others v. Ukraine, nos. 70329/12 and 5 others, § 37, 27 June 2017, and, in the context of Article 8 of the Convention, Foley v. the United Kingdom (dec.), no. 39197/98, 11 September 2001).
31. In other words, even a duly sent document may not reach an applicant for reasons outside of the authorities’ control. The authorities may only be held responsible for failure to send the relevant documents to the applicant. Domestic law, as stated above (paragraphs 14 and 29), provided safeguards in that respect, by requiring that proof of the fact that courts documents were sent be kept in the case file. This allowed the applicant to ascertain, through examination of the file, whether the procedure for sending the documents was followed. If not, it was the applicant’s duty to inform the Court of this fact, if he wished to make an arguable complaint that the domestic authorities failed in their duty to allow him effectively to participate in the proceedings on appeal. The applicant does not allege any such failure to follow the procedure for sending the decision of 11 October 2010 and the copy of the opposing party’s appeal which accompanied it.
32. The fact that the applicant may not have received the Supreme Court’s decision, in the absence of the assertion on the applicant’s part that the Supreme Court failed in its duty to send it to him, is not sufficient to lay an arguable basis for the claim that the applicant’s rights under Article 6 § 1 of the Convention have been breached.
33. The applicant’s submissions in respect of the alleged breach of the principle of legal certainty are, likewise, incomplete and unsubstantiated. The applicant did not state when the opposing party’s appeal had been lodged, limiting himself to the assertion, not supported by any document, that it had been lodged “approximately” in August 2010 (see paragraph 6 above). Therefore, while there is no doubt that the appeal was indeed lodged outside of the time-limit, it is unclear how serious the delay was and what caused it.
34. The applicant did not provide the Court with a copy of the opposing party’s appeal, its request for renewal of the time-limit for appeal or any document from the domestic case file which could indicate when those documents had been lodged, even though, having examined the file prior to application to the Court, he had an opportunity to obtain the copies of those documents (compare Shevchenko v. Ukraine (dec.), no. 24753/06, §§ 18 and 19, 10 May 2016 (Committee)).
35. As the Court noted in Ponomaryov v. Ukraine (no. 3236/03, § 41, 3 April 2008), the legal systems of many member States provide for a possibility to extend procedural time-limits if there are valid reasons to do so. Such decisions can only breach the principle of legal certainty where the time-limit is renewed after a considerable lapse of time and for reasons which do not appear to be particularly persuasive.
36. Therefore, the applicant failed to show exactly how serious the delay in lodging the other party’s appeal had been or to demonstrate that no good reason had been given for its request to renew the time-limit.
37. In such circumstances the applicant failed to make an arguable case that the Supreme Court had neglected, in breach of its duty under domestic law, to inform him of its decision of 11 October 2010 (see paragraph 7 above), thus preventing him from learning of or commenting on the opposing party’s appeal, or that the Supreme Court had renewed the time-limit for the opposing party’s appeal in breach of the principle of legal certainty.
38. This means that the application is manifestly ill‑founded and must be declared inadmissible pursuant to 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 18 April 2019.
Milan BlaškoSíofra O’Leary
Deputy RegistrarPresident
Full & Egal Universal Law Academy