3075/13;63879/13

FIFTH SECTION CASE OF GRYTSA AND SHADURA v. UKRAINE (Applications nos. 3075/13 and 63879/13)             JUDGMENT   STRASBOURG 27 June 2019         This judgment is final but it may be subject to editorial revision.   In the case of Grytsa and Shadura v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:  Síofra O’Leary, President,  Ganna Yudkivska,  Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having deliberated in private on 4 June 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.  The case originated in two applications (nos. 3075/13 and 63879/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Ukrainian nationals, Ms Galyna Vasylivna Grytsa and Ms Maryna Volodymyrivna Shadura (“the applicants”), on 29 December 2012 and 30 September 2013 respectively. 2.  The first applicant was represented by Mr Y. Grytsa, a lawyer practising in Khust, and the second applicant by Mr D. Shadura, a lawyer practising in Kharkiv. The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna. 3.  The applicants complained, in particular, that they had not been duly informed of the appeal proceedings in their cases or given an opportunity to respond to the opposing party’s appeals. 4.  On 26 March 2018 notice of the above complaint was given to the Government and the remainder of the applications was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS THE CIRCUMSTANCES OF THE CASE 5.  The applicants were born in 1976 and 1982 and live in Khust and Kharkiv respectively. The first applicant 6.  The first applicant lodged a claim against a social security authority, seeking an increase in the amount of child allowance she was receiving. A first-instance court allowed her claim in part. That judgment was upheld on appeal but the social security authority lodged a further appeal on points of law. 7.  On 6 November 2012 the Higher Administrative Court (“the HAC”), having examined the appeal, quashed the lower courts’ judgments and dismissed the applicant’s claim. The second applicant 8.  The second applicant moved from the territory of the Republic of Moldova controlled by the so‑called “Moldavian Republic of Transdniestria” (“MRT”) (see Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004‑VII) to Ukraine to take up permanent residence. Under domestic law, repatriating Ukrainians were entitled to the tax-free and duty-free import of their foreign-registered vehicles. However, the customs office refused to apply this tax exemption in the applicant’s case on the grounds that the car had not been registered by the appropriate authorities of the Republic of Moldova. She challenged this refusal before the administrative courts. A first-instance court allowed her claim and ordered the customs office to clear her car through customs. That judgment was upheld on appeal but the customs office lodged a further appeal on points of law. 9.  On 4 April 2013 the HAC allowed the appeal, quashed the lower courts’ decisions and dismissed the applicant’s claim. Both applicants 10.  Both applicants alleged that the HAC, contrary to domestic law (see paragraph 11 below), had not sent them copies of the appeals lodged in their cases or informed them of the pending appeals by any other means, thus depriving them of an opportunity to respond. They alleged that they had only learned of the appeal proceedings when they had been served with the HAC’s final decisions quashing the lower courts’ decisions in their favour.   RELEVANT DOMESTIC LAW 11.  As worded at the relevant time, Articles 214 and 215 of the 2005 Code of Administrative Justice provided that a HAC judge-rapporteur would decide, having considered an appeal, whether to initiate proceedings to review the lower courts’ decisions on points of law. If the judge decided to initiate such proceedings, he or she was required to inform the parties of that decision and serve a copy of the appeal on the opposing party with a time-limit for responding. 12.  The relevant provisions of the Code concerning the procedure for serving court documents are summarised in Lazarenko and Others v. Ukraine (nos. 70329/12 and 5 others, § 15, 27 June 2017). THE LAW   JOINDER OF THE APPLICATIONS 13.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.   ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 14.  The applicants complained that the principle of equality of arms had been breached in the course of the appeal proceedings in their cases. They relied on Article 6 § 1 of the Convention, which reads: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” The parties’ submissions 15.  The Government submitted a letter from the HAC registry informing the Government Agent’s office that it had not been possible to verify whether a copy of the appeal had been sent to the first applicant because the registers of outgoing correspondence for the relevant period had been destroyed in July 2016. 16.  The first applicant responded that the domestic case file was at the first-instance court and contained no evidence that the HAC had sent her the appeal. By contrast, all correspondence from the first-instance court and appellate court was in the case file. The HAC’s ruling of 6 November 2012 did not indicate that it had examined the question whether the applicant had been duly informed of the proceedings. 17.  As far as the second applicant’s case was concerned, the Government submitted that the lower courts’ decisions in her case had not been “legally valid” and had been “repealed” by the HAC. 18.  The second applicant submitted that she had not been sent a copy of the customs authorities’ appeal or notified of the proceedings before the HAC by any other means. The Court’s assessmentAdmissibility 19.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. Merits 20.  The general principles concerning the principle of equality of arms can be found in Lazarenko and Others v. Ukraine (nos. 70329/12 and 5 others, §§ 36 and 37, 27 June 2017). In that case, the Court already found a violation in respect of issues similar to those raised in the applications now before the Court (ibid., §§ 38‑44). 21. The case of Lazarenko concerned proceedings before courts of appeal and the present case concerns proceedings before the HAC. However, similar considerations apply. 22.  As far as the first applicant’s case is concerned, the Government raised an argument similar to that used in Lazarenko (ibid., § 33, and see paragraph 15 above). It was rejected in that case, since, regardless of the register of outgoing correspondence kept by the court, it was the domestic case file that had to contain the relevant evidence. This is also true in the present case – the first applicant’s allegation that the domestic case file was still available for examination and contained no proof of dispatch of the appeal (see paragraph 16 above) was not contested. Likewise, the Government did not contest the second applicant’s allegation that she had not been informed of the proceedings before the HAC by any other means of communication (see paragraph 17 above). 23.  Having examined all the material submitted to it and, in the absence of any evidence of the applicants being properly served, the Court has not found any fact or argument capable of persuading it to reach a conclusion different from that which it reached in Lazarenko. The Court finds that by failing to ensure that the appeals in the applicants’ cases were served on them or that they were informed of those appeals by other means, the domestic courts deprived the applicants of the opportunity to respond to 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. 24.  There has, accordingly, been a violation of Article 6 § 1 of the Convention.   APPLICATION OF ARTICLE 41 OF THE CONVENTION 25.  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.” Damage 26.  The first applicant claimed 2,000 euros (EUR) in respect of non‑pecuniary damage. 27.  The second applicant claimed EUR 1,728.42 in respect of pecuniary damage, representing the taxes imposed on the car she had imported, and EUR 1,000 in respect of non-pecuniary damage. 28.  The Government contested those claims, considering them unsubstantiated. 29.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the second applicant; it therefore rejects this claim. On the other hand, it awards the applicants EUR 500 each in respect of non-pecuniary damage. Costs and expenses 30.  The first applicant also claimed EUR 500 for legal fees. 31.  The Government contested that claim, considering it unsubstantiated. 32.  The Court notes that the applicant failed to submit any documents in support of her claim. Accordingly, regard being had to the relevant provisions of the Rules of Court, to the documents in its possession and to its case-law, the Court rejects the claim. Default interest 33.  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, Decides to join the applications; Declares the applications admissible; Holds that there has been a violation of Article 6 § 1 of the Convention; Holds (a)  that the respondent State is to pay the applicants, within three months, EUR 500 (five hundred euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage, 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 period plus three percentage points; Dismisses the remainder of the applicants’ claim for just satisfaction. Done in English, and notified in writing on 27 June 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.  Milan Blaško Síofra O’Leary Deputy Registrar  President