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Cite as: [2018] ECHR 1036

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FOURTH SECTION

CASE OF SOROKIN v. UKRAINE

(Application no. 3450/09)

JUDGMENT

STRASBOURG

18 December 2018

This judgment is final but it may be subject to editorial revision.

In the case of Sorokin v. Ukraine,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Faris Vehabović, President,
Carlo Ranzoni,
Péter Paczolay, judges,
and Andrea Tamietti, Deputy Section Registrar,

Having deliberated in private on 27 November 2018,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 3450/09) 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 Mikhail Yegorovich Sorokin ("the applicant"), on 26 December 2008.

2. The applicant was represented by Mr I. Tokarev, a lawyer practising in Toretsk. The Ukrainian Government ("the Government") were represented by their Agent, Mr I. Lishchyna.

3. On 14 February 2018 notice of the applicant's complaint under Article 6 § 1 of the Convention concerning the alleged unfairness of the proceedings in his case was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1957 and lives in Toretsk.

5. In December 2007 the applicant lodged a claim with the Dzerzhynsk Court against the Social Insurance Fund ("the Fund"), seeking damages for injuries caused by a work-related accident.

6 . By a judgment of 17 January 2008, the above court allowed the claim in part and awarded the applicant certain amounts in damages. The applicant and the Fund both sought to appeal against that judgment.

7 . In particular, on 25 January 2008 the applicant lodged through the Dzerzhynsk Court a statement of intent to lodge an appeal ("the statement of intent"; заява про апеляційне оскарження ). The copy of the statement of intent submitted to the Court bears the Dzerzhynsk Court's stamp with reference number 1561 showing 25 January 2008 as the date of receipt. On 13 February 2008 the applicant lodged the appeal itself, in which he requested that the appellate court quash the judgment of 17 January 2008 and award him the claimed damages in full. A copy of the appeal bears the Dzerzhynsk Court's stamp, with 13 February 2008 showing as the date of receipt. The applicant stated that no separate procedural decisions had been made about his appeal because it had been mislaid by the court.

8 . In a ruling of 18 March 2008 the Donetsk Regional Court of Appeal ("the Court of Appeal") examined the appeal lodged by the Fund, rejected it as unsubstantiated and upheld the judgment of 17 January 2008. The ruling did not mention the applicant's appeal, and only stated that at the hearing, which was held on the same day, the applicant and his representative had contested the Fund's appeal and had asked the court to reject it.

9. According to the transcript of the court hearing on 18 March 2008, the applicant's representative stated during the hearing that the applicant had lodged the statement of intent on 25 January 2008 and the appeal itself on 13 February 2008. She also stated that they were not challenging the judgment of 17 January 2008 as regards the application of the law but rather were merely seeking an award of the full amount of damages claimed by the applicant. The applicant's representative also asked the Court of Appeal to reject the Fund's appeal. The applicant submitted that at the hearing his representative had also produced a copy of his appeal and had asked the Court of Appeal to join it to the case file; however, the latter refused to do so.

10 . The applicant appealed in cassation to the Supreme Court of Ukraine. A copy of the appeal in cassation submitted to the Court shows that the applicant had dated it 17 May 2008. In it the applicant stated that he had lodged an appeal against the judgment of 17 January 2008 but that when he had arrived at the appellate hearing on 18 March 2008, it transpired that his appeal had been mislaid and his submissions had therefore not been examined by the Court of Appeal. He thus asked the Supreme Court to quash the ruling of 18 March 2008 and to remit the case for fresh examination.

11 . On 27 June 2008 the Supreme Court refused to grant leave for the applicant's appeal in cassation. It stated that the Court of Appeal had examined the appeal lodged by the Fund, but that the applicant had not personally appealed against the judgment of 17 January 2008 and for this reason the case could not be reviewed in cassation. It did not address the applicant's argument that he had indeed lodged an appeal, but that it had been mislaid. The decision of the Supreme Court indicated that the applicant's appeal in cassation had been lodged in "April 2007".

II. RELEVANT DOMESTIC LAW

12 . Article 220 of the 2004 Code of Civil Procedure of Ukraine ("the Code") provided at the material time that upon the request of the parties or of its own motion a trial court could adopt an additional judgment if it had not previously ruled on a claim in respect of which a party had provided evidence and explanations.

13. Article 296 provided that a statement of intent to lodge an appeal and an actual appeal against a trial court's judgment were to be lodged with the appellate court through the trial court which had adopted that judgment. The latter would then forward the appeal to the appellate court.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

14. The applicant complained under Article 6 § 1 of the Convention that the proceedings in his case had been unfair, because the Supreme Court had refused to examine his appeal in cassation on the erroneous ground that he had not previously appealed against the Dzerzhynsk Court's judgment. The above provision reads, in so far as relevant, as follows:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

A. Admissibility

15. The Government submitted that the application had been lodged out of time, because the final decision in the applicant's case had been given on 27 June 2008, while the application had been lodged on 30 March 2009.

16. The applicant did not provide any comments in reply.

17. The Court notes that the applicant sent his first letter, in which he stated the relevant facts and complaints, on 26 December 2008. He was then asked to submit an application form by 19 March 2009, which he duly did on 12 March 2009 (with the Court marking it as received on 30 March 2009). Therefore, the applicant had complied with the six-month rule laid down in Article 35 § 1 of the Convention and the Government's above objection should be dismissed.

18. The Court notes that the above complaint is not manifestly ill-�founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties' submissions

19 . The Government submitted that since the applicant had not provided any court decision regarding the acceptance of his appeal against the judgment of 17 January 2008, it was not known whether he had indeed lodged it. Even if he had, it had "obviously" been returned unexamined, because the statement of intent had not complied with the procedural rules. In another part of their submissions the Government stated, however, that the court had "apparently accepted the appeal for consideration". Then they contended that if the Court of Appeal had not examined all of the applicant's arguments, he could have asked it to adopt an additional judgment under Article 220 § 1 of the Code (see paragraph 12 above). Next, they argued that the applicant's appeal in cassation was dated 17 May 2008 (see paragraph 10 above) and bore no stamp of the Supreme Court, while the latter's decision referred to an appeal in cassation lodged in April 2007 (see paragraph 11 above). Therefore, it was not clear whether the applicant had provided the Court with the same appeal in cassation document as the one mentioned in the Supreme Court's decision of 27 June 2008. If the Supreme Court's reference to April 2007 had been a clerical error, the applicant could have requested that it be rectified. In any event, the Supreme Court's decision had not been manifestly unreasonable and the applicant had received a fair trial.

20. The applicant reiterated that he had lodged the statement of intent, the appeal and the appeal in cassation on 25 January, [13] February and 17 May 2008 respectively.

2. The Court's assessment

21. The Court reiterates that although Article 6 of the Convention does not compel the Contracting States to set up courts of appeal or cassation, where such courts do exist, the proceedings before them must comply with the guarantees of Article 6, for instance in that it guarantees to litigants an effective right of access to the courts for the determination of their civil rights and obligations (see, for instance, Andre jeva v. Latvia [GC], no. 55707/00, § 97, ECHR 2009). It further reiterates that it is not for this Court to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for instance, Bochan v. Ukraine (no. 2) [GC], no. 22251/08, § 61, ECHR 2015). The Court has for instance found a breach of Article 6 § 1 of the Convention in circumstances in which the court of last-instance's decision to reject an applicant's appeal in cassation as inadmissible was the result of a manifest error of assessment on the part of that court (see Dulaurans v. France , no. 34553/97, §§ 34-39, 21 March 2000).

22 . In the present case, the Court has no reason to doubt that the applicant lodged his appeal against the judgment of 17 January 2008, the applicant having produced a copy of the appeal with the Dzerzhynsk Court's stamp showing the date of receipt (see paragraph 7 above). As to the Government's submission that even had it been lodged, the appeal had been returned to the applicant unexamined because the statement of intent had not complied with the procedural rules, the Court considers that this is merely speculation unsupported by any evidence. Moreover, that submission contradicts the Government's other submission that the applicant's appeal had "apparently [been] accepted for consideration" (see paragraph 19 above).

23. As to the Government's submission that, even if the applicant had indeed lodged the appeal, he could have requested that the Court of Appeal adopt an additional decision under Article 220 § 1 of the Code (see paragraph 19 above), the Court notes that that provision only concerns the judgments of trial courts (see paragraph 12 above). The Government neither argued that the provision was likewise applicable to appellate court decisions nor cited any other provision which would give recourse to the same option in appellate proceedings. Even on the assumption that the above provision is also applicable to appellate court decisions, the Court notes that the applicant's complaint was that no decision had been taken on his appeal because it had been mislaid, and the Government did not explain how he could have raised this particular point in the framework of the provision in question.

24. As to the applicant's appeal in cassation, the Court considers that there was clearly a clerical error in the Supreme Court's reference to "April 2007" as the date of the appeal (see paragraph 11 in fine above), because the decisions challenged by the applicant were adopted in 2008 (see paragraphs 6 and 8 above). In the absence of any evidence to the contrary, the Court has no reason to doubt that the copy of the applicant's appeal in cassation in the case file and dated 17 May 2008 is indeed the same as the one he lodged with the Supreme Court. In any case, the Government did not explain how a request that the Supreme Court rectify its mistake as to the date would have led to an examination of the merits of the applicant's appeal in cassation.

25. The Court next observes that in his appeal in cassation the applicant argued that he had lodged his appeal against the judgment of 17 January 2008, but that it had been mislaid and therefore had not been examined (see paragraph 10 above). However, the Supreme Court did not address that argument at all, having held instead that the applicant had not first appealed against the above judgment and therefore that it could not review the appeal in cassation (see paragraph 11 above). In the absence of any further explanation by the Supreme Court about how it reached this conclusion, despite the arguments to the contrary raised by the applicant in his appeal in cassation, and also taking into account the findings made in paragraph 22 above, the Court considers that the above conclusion was the result of a manifest error on the part of the Supreme Court. The Government did not present any argument that would convince the Court to reach any other conclusion. The Court thus finds that the Supreme Court did not ensure that the applicant had a fair trial as guaranteed by Article 6 § 1 of the Convention (see, mutatis mutandis , Dulaurans , cited above, §§ 34-39).

26. There has accordingly been a breach of the above provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

27. 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."

A. Damage

28. The applicant claimed an award in respect of pecuniary damage caused to him due to the work-related accident.

29. The Government submitted that there was no causal link between the violation found and the damage claimed.

30. The Court considers that the applicant has not shown the existence of a causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. The Court also notes that the applicant is entitled under Ukrainian law to request a rehearing of his case in the light of the Court's finding that the domestic courts did not comply with Article 6 in his case (see Bochan (no. 2) , cited above, § 18).

B. Costs and expenses

31. The applicant did not make any claim in this respect.

32. Accordingly, there is no call for an award under this head.

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;

3. Dismisses the applicant's claim for just satisfaction.

Done in English, and notified in writing on 18 December 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Andrea Tamietti Faris Vehabović
Deputy Registrar President