CASE OF VIKTOR NAZARENKO v. UKRAINE
(Application no. 18656/13)
3 October 2017
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Viktor Nazarenko v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Vincent A. De Gaetano, President,
Paulo Pinto de Albuquerque,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,
Having deliberated in private on 12 September 2017,
Delivers the following judgment, which was adopted on that date:
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”) by a Ukrainian national, Mr Viktor Petrovych Nazarenko, who was born in 1939 and lives in Kryvyy Rig.
2. The applicant, who had been granted legal aid, was represented by Mr M. Tarakhkalo and Ms O. Protsenko, lawyers practising in Kyiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna.
3. On 21 April 2016 the part of the application concerning compliance with the principle of equality of arms in the appellate proceedings in the applicant’s case was communicated to the Government and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.
I. THE CIRCUMSTANCES OF THE CASE
4. In a dispute between the applicant and the domestic pension authorities, on 18 February 2011 the Kryviy Rih Dovgyntsivskyy District Court ruled in his favour, ordering an increase of his pension based on the rise in the average wages in the country since his retirement. The court sat in camera.
5. On 3 November 2011 the first-instance court amended the judgment at the applicant’s request, indicating that it was enforceable immediately. In doing so, the court referred to the provision of the Code of Administrative Justice governing abridged procedure (see paragraph 11 below).
6. The defendant pension authority appealed to the Dnipropetrovsk Administrative Court of Appeal (“the Court of Appeal”).
7. On 23 November 2011 the first-instance court informed the applicant that an appeal had been lodged in his case. On 29 February 2012 he wrote to the Court of Appeal, requesting to be informed about the date of the hearing of his case. According to him, he received no response and no further information about the proceedings until 22 February 2013 when he received the Court of Appeal’s final decision, dated 26 June 2012, quashing the first-instance court’s judgment.
8. It can be seen from the material before the Court that the applicant’s domestic case file contains copies of the ruling of the Court of Appeal’s judge (date illegible) opening appeal proceedings in his case and a notification letter dated February 2012 from the court clerk informing him of the upcoming examination of his case in camera on 26 June 2012 and stating that the judge’s ruling and a copy of the appeal were enclosed with the letter. The Government alleged that the above documents had been sent to the applicant, while the applicant alleged that they had not. The file does not contain any postal documents or registers of sent correspondence showing that the above documents had been sent or delivered to the applicant.
9. On 26 June 2012 the Court of Appeal, in a final decision not amenable to appeal, quashed the first-instance court’s judgment, dismissing the applicant’s claim for a pension increase and holding that the domestic law did not require the pensions to be increased in case of rise in the average wages in the country following retirement. The court sat in camera.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Administrative Justice of 6 July 2005
10. Article 33 of the Code of Administrative Justice distinguishes between court summons (повістки про виклик) and court notification letters (повістки-повідомлення), the former being sent to the parties summoned to appear while the latter are simple notices of procedural events participation in which is not required. Both summonses and notification letters must be sent by registered correspondence (letter or telegram) or by courier, with a delivery receipt, or by fax, telefax, email, telephone or publication in the media.
Under Article 35, both summonses and notification letters require signature on delivery. The person delivering the document must return the signed delivery slip to the court, which will add it to the case file. In the case of an absent addressee, the person delivering the document must 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 must be promptly returned to the court.
11. Article 183-2 provides, inter alia, that claims concerning social and pension payments can be considered by way of an abridged procedure in camera without the parties being summoned. The judgment of the first-instance court is enforceable immediately but can be appealed against before an appellate court, whose decision is final.
12. Article 197 provides that an appellate court may consider an appeal sitting in camera on the basis of the material in the case file in particular (i) if the parties have not requested that the court hear the appeal in their presence or (ii) if the case concerns social benefits or pension payments and was decided at first instance by way of an abridged procedure.
13. At the material time Articles 189 and 190 provided that when a new case arrived at an appellate court, it was to be allocated to a judge rapporteur. The judge, once he or she had decided to open appeal proceedings, had to send the parties within ten days a copy of the ruling opening the proceedings together with a copy of the appeal, and set a time-limit for replying to the appeal.
B. Preservation of court cases and public records
14. By Order No. 578/5 of 12 April 2012 the Ministry of Justice approved the List of standard documents produced by public authorities and other organisations. Item 128 of the List provides that registers of sent correspondence had to be kept for at least one year and could be destroyed, subject to a number of conditions, after that period.
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.
C. Instructions on record keeping and case management at local and appellate administrative courts
15. By Order No. 155 of 5 December 2006 the State Court Administration adopted the instructions on record keeping and case management at local and appellate administrative courts. They were repealed on 17 December 2013.
Paragraph 2.4 provided, in particular, that delivery slips for served or undelivered summons and notification letters were to be added to the relevant case file. Paragraph 7.1.1 listed receipts confirming delivery of a summons or notification letter on the parties to the proceedings among the documents to be added to the case file. Paragraph 7.1.5 required that copies of documents sent to the parties had to contain a note indicating the date on which they had been sent and the signature of the person who had sent them.
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
16. The applicant complained that Article 6 had been breached in the course of proceedings before the Court of Appeal. Article 6 § 1 of the Convention reads:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. The parties’ submissions
1. The applicant’s initial submissions
17. In his first letter to the Court of 4 March 2013, the applicant complained that his case had been examined at the Court of Appeal in his absence, without him being notified of the date of examination. He could not therefore present objections to the appeal lodged by the public authority. The court’s decision had not been pronounced publicly, he could not appeal against it since his case had been examined by way of an abridged procedure.
18. On 15 March 2013 the Registry sent the applicant an application form informing him that he had to return the completed application form and all relevant documents not later than 10 May 2013 and that failure to comply with that time-limit would mean that it would be the date of the submission of the completed application form rather than that of the applicant’s first letter which would be taken as the date of the introduction of the application.
19. On 9 July 2013 the applicant sent another letter to the Court containing the same complaints as in his first letter of 4 March 2013. On 2 August 2013 the Registry responded by re-sending the applicant the letter of 15 March 2013 and the application package, remarking that apparently the applicant did not receive the original letter.
20. On 10 September 2013 the applicant submitted a completed application form, repeating essentially the same complaints. He stressed that holding the hearing and pronouncing the judgment without informing him of those steps breached the principles of publicity and transparency of proceedings.
21. The applicant’s above-mentioned letters and his application form did not mention that he had any knowledge that appeal proceedings were pending in his case. The information about the proceedings in the applicant’s case at the appellate level (see paragraph 7 above) was first provided to the Court by the Government after communication.
2. Submissions following communication
22. The Government submitted that, by failing to inform the Court that he had actually had knowledge of the appeal proceedings and by framing his submissions in terms which could create the impression that he had had no notice of those proceedings whatsoever, the applicant had misled the Court. They argued that this amounted to an abuse of the right of application.
23. In his observations in response to the Government’s observations, submitted on 14 November 2016, the applicant responded, in essence, that he had never explicitly stated that he had had no knowledge of the appeal proceedings and, therefore, had not misled the Court. He clarified and reformulated his complaints as follows: the Court of Appeal had breached his right to adversarial proceedings by (a) not notifying him of the date of the “hearing” in his case and (b) not expressly inviting him to participate in it by submitting written objections. While he had known that an appeal had been lodged, he had not been sent a copy and had reasonably expected to be informed of the “hearing” date and be invited to submit his objections. He had contacted the Court of Appeal once to try to obtain information about the date of the “hearing” in his case (see paragraph 7 above) and had thus done all that could be reasonably expected of him to apprise himself of the developments of the proceedings.
24. In addition the Government submitted that the applicant’s complaints had been lodged out of time since he had received the Court of Appeal’s final decision in his case on 22 February 2013 but had not lodged his application form until 10 September 2013 (see paragraphs 7 and 20 above respectively). The applicant responded that the date of his first letter to the Court, 4 March 2013 had to be taken as the date of lodging of his application.
25. The Government further submitted that the application was manifestly ill-founded or, alternatively, that it did not disclose a violation of Article 6, arguing that the applicant had been notified by the first-instance court that the appeal had been lodged (see paragraph 7 above). Also, the copy of the judge’s ruling opening appeal proceedings and of the notification letter which were in the applicant’s domestic case file (see paragraph 8 above) constituted proof that the applicant had been sufficiently notified of appeal proceedings. According to the Government, those documents were in fact sent to the applicant by ordinary mail. However, the only records of dispatch of such mail, registers of outgoing correspondence, had been destroyed as under the approved list of standard documents issued by public authorities (see paragraph 14 above) such registers did not need to be kept for more than a year.
26. The applicant disagreed. He argued that the relevant regulation applicable to court record keeping was not the list of standard documents relied on by the Government, but the instructions governing documentation and record keeping at the administrative courts (see paragraph 15 above). He referred to provisions of the Code of Administrative Justice and the instructions, which required that court documents be sent by registered rather than ordinary untraceable mail, and that delivery slips be kept in the case files (see paragraphs 10 and 15 above). Accordingly, his application was admissible and disclosed a violation of Article 6 of the Convention.
B. The Court’s assessment
(a) The Government’s objection concerning alleged abuse of the right of application
27. The Court reiterates that the submission of incomplete and thus misleading information may amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. However, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).
28. Turning to the circumstances of the present case, the Court observes that the applicant’s initial submissions were, indeed, vague and did not contain crucial factual information which led the Court to misunderstand the nature of his allegations and complaints, namely leading the Court to believe that the applicant was complaining that he had no notice of the appeal proceedings whatsoever. However, the Court cannot establish, to the required degree of certainty, that by making such submissions the applicant intended to mislead the Court. It cannot find, therefore, that he has abused the right of application.
(b) Compliance with the six-month rule
29. The Court notes at the outset that the six-month period started to run on 22 February 2013 when the applicant received the Court of Appeal’s final decision in his case.
30. As to the date of introduction of the application, it should be taken into account that at the relevant time Rule 47 § 5 of the Rules of Court read:
“5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction.”
31. The practical modalities of the application of that rule were, at the time, set out in Paragraph 4 of the Practice Direction on the Institution of Proceedings, issued by the President of the Court in accordance with Rule 32 of the Rules of Court on 1 November 2003 and appended to Rules 45 and 47 of the Rules of Court. It read as follows:
“4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.
Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.”
32. In accordance with its established practice and the above rules, at the time the Court normally considered the date of introduction of an application to be the date of the first communication indicating an intention to lodge an application and giving some indication of the nature of the application (see Rule 47 § 5 of the Rules of Court, quoted above). However, applicants had to pursue their applications with reasonable expedition after any initial introductory contact and failure to do so could lead the Court to decide that the interruption of the six-month period had to be invalidated and that it was the date of the submission of the completed application form which was to be considered as the date of introduction (see Kemevuako v. the Netherlands (dec.), no. 65938/09, §§ 19 and 20, 1 June 2010).
33. In the present case, however, the facts indicate that the applicant did not receive the Registry’s first letter to him sent on 15 March 2013 in response to his first letter introducing his complaints and that this led the Registry to resend him the application package on 2 August 2013 (see paragraphs 18 and 19 above). He lodged a duly completed application form within eight weeks of the latter date. In such circumstances the Court considers that it is appropriate to consider 4 March 2013, the date of the applicant’s first letter to the Court, as being the date of introduction.
34. The Court concludes, therefore, that application has been lodged within the six-month time-limit and dismisses the Government’s preliminary objection in this respect.
35. The applicant’s complaint, contrary to the Government’s submissions, is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds and must therefore be declared admissible.
(a) General principles
36. The Court reiterates that the adversarial principle and the principle of equality of arms, which are closely linked, are fundamental components of the concept of a “fair hearing” within the meaning of Article 6 § 1 of the Convention. They require a “fair balance” between the parties: each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent or opponents. These principles, which cover all aspects of procedural law in the Contracting States, are also applicable in the specific sphere of service of judicial documents on the parties, although Article 6 § 1 cannot be interpreted as prescribing a specific form of service of documents (see Avotiņš v. Latvia [GC], no. 17502/07, § 119, ECHR 2016). 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). 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).
(b) Application of the above principles to the present case
37. In the present case, in order for the principle of equality of arms to be respected, the applicant should have been provided with an opportunity to comment on the appeal lodged in his case.
38. Domestic law provided for a specific procedure which was meant to ensure that the applicant effectively could avail himself of such an opportunity. Once the appeal proceedings had been opened, the Court of Appeal judge had to send the applicant a copy of the ruling opening appeal proceedings together with a copy of the appeal and to set a time-limit for him to reply (see paragraph 13 above). The applicant’s case file indeed contained a copy of the above ruling with the court’s accompanying notification letter (see paragraph 8 above). However, the parties disagree as to whether those documents were in fact sent to the applicant.
39. The Court observes that domestic law, first of all the Code of Administrative Justice, contained specific rules for ensuring that the parties were informed of key procedural events and served with court documents, and thus the principle of equality of arms was respected and records were kept. The rules required that if court documents were to be sent by post, registered mail had to be used. Moreover, the person serving the document had to return proof of delivery to the court and domestic law explicitly required that this proof be added to the domestic case file (see paragraphs 10 and 15 above).
40. Had this procedure been followed, the domestic case file would be expected to contain proof of delivery. Compliance with this procedure would have avoided the difficulties raised by the destruction of the registers of outgoing correspondence which, according to the Government, prevented them from providing evidence that the applicant had been served with the documents in question (see paragraphs 14 and 25 above).
41. The Government did not explain why the procedure provided for in the Code had not been used and simple unrecorded post had allegedly been used instead (compare Gakharia v. Georgia, no. 30459/13, § 40, 17 January 2017). There was no formal decision or regulation authorising this alternative form of service (compare Strizhak v. Ukraine, no. 72269/01, § 39, 8 November 2005).
42. The Court concludes that it has not been demonstrated that a copy of the appeal or of the judge’s ruling opening appeal proceedings in his case was served on the applicant.
43. Given that domestic law required a copy of the appeal to be served on the applicant and him to be invited to comment on it (see paragraph 13 above), he could reasonably await such service and invitation before providing his comments on the appeal, instead of taking proactive steps to obtain a copy of it.
44. The Court reiterates that the Contracting States must exercise diligence to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see, for example, Fretté v. France, no. 36515/97, § 49, ECHR 2002-I). It is true that it was also the applicant’s duty to display special diligence in the defence of his interests and to take the necessary steps to apprise himself of the developments in the proceedings (see, for example, Teuschler v. Germany (dec.), no. 47636/99, 4 October 2001; Sukhorubchenko v. Russia, no. 69315/01, § 48, 10 February 2005; Gurzhyy v. Ukraine (dec.), no. 326/03, 1 April 2008; and Muscat v. Malta, no. 24197/10, § 44, 17 July 2012). However, the Court considers that he did display sufficient diligence under the circumstances.
45. Thus, on 29 February 2012, three months after he had been informed that an appeal had been lodged in his case, he wrote to the Court of Appeal, asking to be informed of the date of the hearing in his case. The applicant alleged, and the Government did not contest, that he received no response (see paragraph 7 above). Admittedly, the nature of his request to the Court of Appeal demonstrated a certain confusion on his part as to the procedural rules applicable to his case, since he was seeking to obtain the “date of the hearing” in his case, which was non-existent given that his case had been examined at first instance in accordance with the rules of abridged procedure (see paragraph 5 above) and the Court of Appeal was likely to examine, and in fact did examine, his case in camera without a hearing. However, the applicant’s request was sufficient to alert the Court of Appeal that he was unaware of the progress of the proceedings in his case and was seeking this information. Despite being thus alerted to the fact that the applicant did not have the information he was entitled to by law, the Court of Appeal failed to react.
46. In cases where the Court found that the applicants failed to display the requisite diligence in protecting their own interests in somewhat similar circumstances, the periods of inactivity between the last procedural event in the applicants’ cases and their inquiries to the relevant authorities were normally longer than in the present case, where only three months passed between the applicant being informed of the appeal and his request for information to the Court of Appeal and four months from that unsuccessful request to the delivery of the Court of Appeal’s final decision in his case (contrast, for example, Gurzhyy, cited above, where the relevant period was one year and five months, and Karakutsya v. Ukraine, no. 18986/06, § 57, 16 February 2017, where it was one year and eight months).
47. Therefore, the Court finds it established that, contrary to domestic law and despite the applicant’s efforts to protect his interests, he was not sent a copy of the appeal lodged in his case or provided an adequate opportunity to comment on it.
48. This amounted to a breach of the principle of equality of arms (compare Beer, cited above, §§ 19-21, and Salov v. Ukraine, no. 65518/01, § 88, ECHR 2005-VIII (extracts)).
49. There has accordingly been a violation of Article 6 § 1 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
50. 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.”
51. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage.
52. The Government considered the amount claimed excessive and unsubstantiated.
53. The Court considers that the applicant suffered non-pecuniary damage as a result of the violation found which cannot be compensated for by the mere finding of a violation. Having regard to the circumstances of the case and ruling on an equitable basis, as required by Article 41 of the Convention, it awards the applicant EUR 1,000 in respect of non-pecuniary damage.
B. Costs and expenses
54. Mr Tarakhkalo claimed EUR 8,175 for costs and expenses incurred before the Court, to be transferred to his account, on behalf of the applicant in the present case and of five applicants in the case of Lazarenko v. Ukraine (nos. 70329/12 and 5 others, 27 June 2017). Mr Tarakhkalo’s observations concerned both the applicant’s case and the cases of those five other applicants.
55. The Government considered the amount claimed excessive and unsubstantiated.
56. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court makes no award under this head.
C. Default interest
57. 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. Declares the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 3 October 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Andrea Tamietti Vincent A. De Gaetano Deputy Registrar President
 Not final at the time of drafting.