29446/12;40444/12;47969/12;58330/12;70930/12;12094/13;24148/13;29468/13;31087/13;39790/13;47746/13;66583/13

FIFTH SECTION             CASE OF SOZONOV AND OTHERS v. UKRAINE   (Applications nos. 29446/12 and 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. 7942/05 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 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       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       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       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       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         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     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       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       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     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     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     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     [1].  Plus any tax that may be chargeable to the applicants.