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European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> ISAYEV AND OTHERS v. UKRAINE - 1292/14 (Judgment : Article 6 - Right to a fair trial : Fifth Section Committee) [2018] ECHR 1000 (06 December 2018)
URL: http://www.bailii.org/eu/cases/ECHR/2018/1000.html
Cite as: ECLI:CE:ECHR:2018:1206JUD000129214, CE:ECHR:2018:1206JUD000129214, [2018] ECHR 1000

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FIFTH SECTION

CASE OF ISAYEV AND OTHERS v. UKRAINE

(Applications nos. 1292/14and 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. 1985/05and 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. 7942/05and 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. 2430/06et 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. 70329/12and 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, 16469/16and 66870/17submitted 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 Tigerstedt Síofra O'Leary
Acting Deputy Registrar President

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.