European Court of Human Rights

 

 

 

FIFTH SECTION

CASE OF ZAVALIY AND OTHERS v. UKRAINE

(Applications nos. 23342/14 and 3 others)

 

 

 

 

JUDGMENT

STRASBOURG

20 September 2022

 

 

 

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

 

In the case of Zavaliy and Others 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 Martina Keller, Deputy Section Registrar,

Having regard to:

the applications against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by the applicants listed in the appended table (“the applicants”), on the various dates indicated therein;

the decision to give notice of the complaints set out in § 1 below to the Ukrainian Government (“the Government”), represented by their then Agent, Mr I. Lishchyna, and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 2 June 2022,

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

SUBJECT MATTER OF THE CASE

1.  The applicants alleged that the opening of appeal proceedings and the quashing of a judgment in their favour breached the principle of legal certainty under Article 6 § 1 of the Convention. The applicant in application no. 42968/15 also alleged that the above-mentioned actions breached Article 1 of Protocol No. 1.

2.  The Government contested those allegations.

3.  The relevant details of the applications are set out in the appended table.

I.           JOINDER OF THE APPLICATIONS

4.  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

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

6.  The Court has already found violations of the principle of legal certainty in similar circumstances in Ponomaryov v. Ukraine (no. 3236/03, 3 April 2008) and Ustimenko v. Ukraine (no. 32053/13, 29 October 2015). Having regard to the circumstances of the present applications as set out in the appended table, the Court sees no reason to reach a different conclusion in the present case. The courts, in breach of the principle of legal certainty, accepted for examination, without giving sufficient reasons, and allowed appeals lodged outside the statutory ten-day time-limit for appealing.

7.  There has accordingly been a violation of Article 6 § 1 of the Convention in respect of all the applicants.

III.     REMAINING COMPLAINT

8.  The applicant in application no. 42968/15 also raised a complaint under Article 1 of Protocol No. 1 to the Convention. The Court has examined this part of the application and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint either does not meet the admissibility criteria set out in Articles 34 and 35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto.

9.  It follows that this part of the application must be rejected in accordance with Article 35 § 4 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

10.  Having regard to the documents in its possession and in view of the nature of the violation found, the Court considers it reasonable to award the amounts indicated in the appendix, plus any tax that may be chargeable to the applicants, and dismisses the remainder of the claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the complaints under Article 6 § 1 of the Convention admissible and the remainder of application no. 42968/15 inadmissible;

3.      Holds that there has been a violation of Article 6 § 1 of the Convention in respect of all the applicants;

4.      Holds

(a)  that the respondent State is to pay, within three months, the amounts indicated in the appended table, plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage and in respect of costs and expenses, 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;

5.      Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 20 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                       Ivana Jelić
          Deputy Registrar                                                      President

 

 

APPENDIX

List of applications raising complaints under Article 6 § 1 of the Convention (breach of the principle of legal certainty):

 

No.	Application no.	Case name	Lodged on	Applicant Year of Birth Place of Residence Nationality	Date of the first instance court decision	Date of the appeal submission	Final decision	Costs and expenses per applicant (in euros)	Amount awarded for non-pecuniary damage
1.	23342/14	Zavaliy v. Ukraine	15/04/2014	Marya Fedorivna ZAVALIY 1991 Dnipropetrovsk Ukrainian	24/06/2011	17/10/2011	Dnipropetrovsk Administrative Court of Appeal, 05/09/2013 (sent to the applicant on 23/06/2014)	25	500
2.	42968/15	Tetelbaum v. Ukraine	20/08/2015	Dmytro Mykhaylovych TETELBAUM 1959 Kharkiv Ukrainian	19/05/2014	23/02/2015	High Specialised Court for Civil and Criminal Matters, 14/05/2015	500	500
3.	1686/17	Mozgovyy v. Ukraine	22/12/2016	Volodymyr Volodymyrovych MOZGOVYY 1965 Zhytomyr Ukrainian	14/04/2016	04/07/2016	Zhytromyr Administrative Court of Appeal, 15/09/2016		500
4.	64516/17	Oleksyuk v. Ukraine	17/08/2017	Ganna Ivanivna OLEKSYUK 1954 Kharkiv Ukrainian	06/06/2016	06/01/2017	Kharkiv Administrative Court of Appeal, 22/02/2017		500