European Court of Human Rights

FIFTH SECTION

CASE OF KAYDALOV v. UKRAINE

(Application no. 18202/20)

JUDGMENT

STRASBOURG

15 April 2021

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

In the case of Kaydalov v. Ukraine,

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

          Ivana Jelić, President,
          Ganna Yudkivska,
          Arnfinn Bårdsen, judges,
and Liv Tigerstedt, Deputy Section Registrar,

Having deliberated in private on 25 March 2021,

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

PROCEDURE

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”) on 30 March 2020.

2.  The Ukrainian Government (“the Government”) were given notice of the application.

THE FACTS

3.  The applicant’s details and information relevant to the application are set out in the appended table.

4.  The applicant complained of the domestic courts’ failure to ensure his participation in hearings in the civil proceedings to which he was a party.

THE LAW

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

5.  The applicant complained that his right to a fair hearing had been breached on account of the domestic court’s failure to properly and timely notify him of hearings in the civil proceedings to which he was a party. He 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 ...”

6.  The Court observes that the general principles regarding the right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side, as guaranteed by Article 6 of the Convention, have been stated in a number of its previous judgments (see, among many other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, §§ 59‑60, ECHR 2005-II).

7.  The applicant alleged that he had not received the summons and/or was not informed in due time of the date and place of the hearing in his case. The Court reiterates that domestic courts must make reasonable efforts to summon the parties to a hearing (see Kolegovy v. Russia, no. 15226/05, § 42, 1 March 2012, and Babunidze v. Russia (dec.), no. 3040/03, 15 May 2007). Litigants must also take appropriate measures to ensure effective receipt of correspondence the domestic courts may send them (see Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey, no. 21377/03, § 38, 21 January 2014; Boyko v. Ukraine (dec.), no. 17382/04, 23 October 2007; and Darnay v. Hungary, no. 36524/97, Commission decision of 16 April 1998). Moreover, the Court has noted that a lack or deficiency of reasons in domestic decisions as regards the proof of receipt of summons by the applicant, as well as the domestic courts’ failure to assess the necessity to adjourn hearings pending the applicant’s proper notification or to delve on the nature of his legal claims which could have rendered the applicant’s presence unnecessary cannot be made up ex post facto in the Court proceedings, for it cannot take the place of the national courts which had the evidence before them (see Gankin and Others v. Russia, nos. 2430/06 and 3 others, §§ 41-42, 31 May 2016).

8.  In the leading case of Lazarenko and Others v. Ukraine, nos. 70329/12 and 5 others, 27 June 2017, the Court already found a violation in respect of issues similar to those in the present case.

9.  Having examined all the material submitted to it and lacking any evidence of proper notification of the applicant, 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 merits of the applicant’s case without attempting to ascertain whether he had been or should have been at least aware of the date and time of the hearings, and, if he had not, whether the hearings should have been adjourned, the domestic courts deprived the applicant of the opportunity to present his case effectively and fell short of their obligation to respect the principle of fair trial enshrined in Article 6 of the Convention.

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

II.     APPLICATION OF ARTICLE 41 OF THE CONVENTION

11.  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.”

12.  Regard being had to the documents in its possession and to its case‑law, the Court considers it reasonable to award the sum indicated in the appended table.

13.  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 it discloses a breach of Article 6 § 1 of the Convention concerning the unfairness of the civil proceedings;

3.      Holds

(a)   that the respondent State is to pay the applicant, within three months, the amount 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default during the default period plus three percentage points.

Done in English, and notified in writing on 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

        Liv Tigerstedt                                                                    Ivana Jelić

     Deputy Registrar                                                                   President

APPENDIX

Application raising complaints under Article 6 § 1 of the Convention

(lack of opportunity to comment on the appeal)