19086/12;61663/12;5661/13;37725/13;47510/13;52889/13;65343/13;12446/14;25139/14;52121/14;55013/14;66752/14;78324/14;35885/16

FIFTH SECTION         CASE OF MINAK AND OTHERS v. UKRAINE (Applications nos. 19086/12 and 13 others - see appended list)                 JUDGMENT     STRASBOURG   7 February 2019             This judgment is final but it may be subject to editorial revision.     In the case of Minak 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 17 January 2019, 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.  Notice of the applications was given 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.  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. 7942/05 and 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. 2430/06 et 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. 70329/12 and 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 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 failing to ensure that the appeals in the applicants’ cases had been served on them or that they had been informed of those appeals by 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.  OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 12.  The applicants in applications nos. 5661/13, 37725/13, 47510/13, 52889/13, 52121/14 and 35885/16 submitted other complaints which also raised issues under, inter alia, Article 6 § 1 of the Convention, given the relevant well-established case-law of the Court on the principle of legal certainty (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. 2053/13, §§ 48-54, 29 October 2015) and Ponomaryov v. Ukraine (no. 3236/03, §§ 40-42, 43 and 47, 3 April 2008). IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION 13.  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.” 14.  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. 15.  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 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 relating to the principle of legal certainty (see appended table);   5.  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 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 7 February 2019, 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   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]     19086/12 21/03/2012 Vyacheslav Oleksandrovych Minak 11/08/1956 17/03/2011   Zhovtnevyy Local Court of Zaporizhzhya 22/11/2011   Dnipropetrovsk Administrative Court of Appeal         61663/12 19/09/2012 Mykhaylo Mykhaylovych Lukanov 25/11/1939 28/03/2011   Zhovtnevyy Local Court of Dnipropetrovsk 25/05/2012   Dnipropetrovsk Administrative Court of Appeal         5661/13 04/01/2013 Olga Yakivna Zhytkova 25/04/1949 23/12/2010   Obolonskyy Local Court of Kyiv 22/08/2012   Kyiv Administrative Court of Appeal   Art. 6 (1) - breach of the principle of legal certainty: The judgment of the Obolonskyy Local Court of Kyiv of 23/12/2010, final and enforceable as of 23/03/2011, was quashed by the Kyiv Administrative Court of Appeal on 22/08/2012 on the basis of the defendant’s appeal lodged outside the established time-limits     37725/13 30/05/2013 Fedir Pavlovych Kravchenko 02/06/1945 28/07/2011   Tsentralnyy Local Court of Kryvyy Rig 16/11/2012   Dnipropetrovsk Administrative Court of Appeal   Art. 6 (1) - breach of the principle of legal certainty: The judgment of the Tsentralnyy Local Court of Kryvyy Rig of 28/07/2011, final and enforceable as of 09/08/2011, was quashed on 16/11/2012 by the Dnipropetrovsk Administrative Court of Appeal. The applicant has provided a copy of the defendant’s letter saying that the motion as regards extension of the time-limit for lodging the appeal was destroyed due to expiry of the period of storage (that is to say, motion for extension of the time-limit did exist). However, while launching the appellate proceedings on 04/10/2012 the appellate court remarked that the appeal had been lodged in time and did not rule on extension of the time-limit.   Prot. 1 Art. 1 - interference with peaceful enjoyment of possessions: deprivation of the opportunity to receive money which the applicant had legitimately expected to receive as the result of the quashing of the final judgments in his favour.     47510/13 11/07/2013 Nadiya Ivanivna Shepel 11/05/1951 16/06/2011   Saksaganskyy Local Court of Kryvyy Rig 28/02/2013   Dnipropetrovsk Administrative Court of Appeal   Art. 6 (1) - breach of the principle of legal certainty: The judgment of the Saksaganskyy Local Court of Kryvyy Rig of 16/06/2011, which became final and enforceable, was quashed by the Dnipropetrovsk Administrative Court of Appeal on 28/02/2013 on the basis of the defendant’s appeal lodged on 04/07/2012 (i.e. outside the established time-limits).     52889/13 06/08/2013 Valeriy Mykolayovych Nikolayev 12/03/1943 04/07/2011   Babushkinskyy Local Court of Dnipropetrovsk 13/02/2013   Dnipropetrovsk Administrative Court of Appeal   Art. 6 (1) - breach of the principle of legal certainty: The judgment of the Babushkinskyy Local Court of Dnipropetrovsk of 04/07/2011, final and enforceable as of 08/08/2011, was quashed by the Dnipropetrovsk Administrative Court of Appeal on 13/02/2013 on the basis of the defendant’s appeal lodged outside the established time-limits.     65343/13 03/10/2013 Yevgeniy Romanovych Salatsinskyy 01/01/1950 30/05/2011   Netyshyn Local Court of Khmelnytskyy Region 28/05/2013   Vinnytsya Administrative Court of Appeal         12446/14 07/03/2014 Valentyna Mykolayivna Pokoyuk 14/03/1951 29/04/2011   Dniprovskyy Local Court of Kyiv 29/11/2011   Kyiv Administrative Court of Appeal         25139/14 21/03/2014 Volodymyr Vasylyovych Zherelyk 02/08/1952 08/09/2011   Zhovtnevyy Local Court of Kryvyy Rig 22/10/2013   Dnipropetrovsk Administrative Cour of Appeal       52121/14 10/07/2014 Vira Grygorivna Petrova 03/10/1949 29/07/2010   Svitlovodsk Local Court of Kirovohrad Region 18/09/2013   Dnipropetrovsk Administrative Court of Appeal   Art. 6 (1) - breach of the principle of legal certainty: The judgment of the Svitlovodsk Local Court of Kirovohrad Region of 29/07/2010, was quashed by the Dnipropetrovsk Administrative Court of Appeal on 18/09/2013 on the basis of the defendant’s appeal lodged outside the established time limits, in October 2012.   55013/14 26/07/2014 Mykhaylo Antonovych Dyachok 02/09/1949 05/11/2010   Chortkiv Local Court of Ternopil Region 05/11/2011   Lviv Administrative Court of Appeal 19/05/2014         66752/14 04/11/2014 Oleksandr Leontiyovych Vereshchak 15/09/1946 15/02/2011   Konotop Local Court of the Sumy Region 13/02/2012   Kharkiv Administrative Court of Appeal       78324/14 26/02/2015 Ganna Ivanivna Osadcha 15/08/1946 14/03/2011   Konotop Court 23/02/2012   Kharkiv Administrative Court of Appeal       35885/16 14/06/2016 Eleonora Sergiyivna Shyrmer 07/06/1950 14/10/2011   Moskovskyy Local Court of Kharkiv 10/09/2012   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 14/10/2011, final and enforceable, was quashed by the Kharkiv Administrative Court of Appeal on 10/09/2012 on the basis of the defendant’s appeal lodged outside the established time-limits.       [1].  Plus any tax that may be chargeable to the applicants.