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URL: http://www.bailii.org/eu/cases/ECHR/2018/920.html
Cite as: ECLI:CE:ECHR:2018:1108JUD002944612, ECLI:CE:ECHR:2018:1106JUD005254815, CE:ECHR:2018:1106JUD005254815, [2018] ECHR 920, CE:ECHR:2018:1108JUD002944612

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FIFTH SECTION

CASE OF SOZONOV AND OTHERS v. UKRAINE

(Applications nos. 29446/12and 11 others -

see appended list )

JUDGMENT

STRASBOURG

8 November 2018

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

In the case of Sozonov and Others v. Ukraine,

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

Yonko Grozev, President,
Gabriele Kucsko-Stadlmayer,
Lәtif Hüseynov, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,

Having deliberated in private on 11 October 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.

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. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

6. 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 ..."

7. 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).

8. 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).

9. 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.

10. 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.

11. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

12. 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."

13. 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.

14. 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. Declares the applications admissible;

3. Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the unfairness of the civil proceedings;

4. 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 8 November 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Liv Tigerstedt Yonko Grozev
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	Amount awarded for pecuniary and non-pecuniary damage and costs and expenses per applicant (in euros) [1]
	29446/12 03/05/2012	Petro Grygorovych Sozonov 15/07/1943		17/11/2010 Zarichny District Court of Sumy	03/10/2011 Kharkiv Administrative Court of Appeal		500
	40444/12 19/06/2012	Svitlana Nazarivna Tyutyura 06/06/1954		16/06/2011 Leninskyy District Court of Dnipropetrovsk	10/02/2012 Dnipropetrovsk Administrative Court of Appeal		500
	47969/12 19/07/2012	Anatoliy Mykolayovych Fedorenko 17/05/1947		15/04/2011 Amur-Nyzhnodniprovskyy District Court of Dnipropetrovsk	17/01/2012 Dnipropetrovsk Administrative Court of Appeal		500
	58330/12 30/08/2012	Oleg Mykolayovych Smolyanskyy 05/02/1951	Pavlo Sergiyovych Polishchuk Kuznetsovsk	01/06/2011 Kuznetsovskyy City Court of Rivne Region	25/04/2012 Zhytomyr Administrative Court of Appeal		500
	70930/12 25/10/2012	Oleksandr Grygorovych Tyutyura 26/10/1950		08/06/2011 Leninskyy District Court of Dnipropetrovsk	21/09/2012 Dnipropetrovsk Administrative Court of Appeal		500
	12094/13 02/02/2013	Yuriy Ivanovich Tarasov 09/12/1946		16/07/2010 Leninsky District Court of Sevastopol	05/07/2011 Sevastopol Administrative Court of Appeal	04/09/2012	500
	24148/13 22/03/2013	Nataliya Vasylivna Afonina 07/03/1955		04/07/2011 Leninsky District Court of Dnipropetrovsk	22/01/2013 Dnipropetrovsk Administrative Court of Appeal		500
	29468/13 23/04/2013	Yuliya Vasylivna Yakovleva 27/03/1953		28/03/2011 Amur-Nyzhnyodniprovskyy District Court of Dnipropetrovsk	12/06/2012 Dnipropetrovsk Administrative Court of Appeal		500
	31087/13 26/04/2013	Anatoliy Ivanovych Boyko 14/03/1941		31/05/2011 Babushkinsky District Court of Dnipropetrovsk	01/11/2012 Dnipropetrovsk Administrative Court of Appeal		500
	39790/13 11/06/2013	Viktor Yosypovych Kozhemyako 08/01/1952		16/05/2011 Babushkinsky District Court of Dnipropetrovsk	24/05/2012 Dnipropetrovsk Administrative Court of Appeal		500
	47746/13 16/07/2013	Vyacheslav Fedorovych Suslov 03/02/1950		26/04/2011 Babushkinsky District Court of Dnipropetrovsk	11/12/2012 Dnipropetrovsk Administrative Court of Appeal		500
	66583/13 15/10/2013	Volodymyr Danylovych Nesterenkov 08/03/1950		01/09/2011 Novomoskovsky City Court of Dnipropetrovsk Region	06/12/2012 Dnipropetrovsk Administrative Court of Appeal		500

[1] . Plus any tax that may be chargeable to the applicants.