63510/11;35026/12;48019/12;65722/12;71273/12;74771/12;21094/13;24346/13;29598/13;34757/13;37671/13;39965/13;47881/13;52206/13;55129/13;63197/13;66585/13;70813/13;79383/13

FIFTH SECTION             CASE OF PECHENIZKYY AND OTHERS v. UKRAINE (Applications nos. 63510/11 and 18 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 Pechenizkyy 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.  THE LOCUS STANDI OF MS TAMARA PAVLIVNA KALASHNIKOVA 6.  As concerns the complaints raised by the applicant in application no. 39965/13, the Court notes that the applicant died on 18 January 2018, while the case was pending before the Court. The applicant’s wife, Ms Tamara Pavlivna Kalashnikova, has requested to pursue the application on her husband’s behalf. As the request is in line with its case-law, the Court sees no reason to refuse it (see, among other authorities, Benyaminson v. Ukraine, no. 31585/02, § 83, 26 July 2007; Petr Korolev v. Russia, no. 38112/04, §§ 43-45, 21 October 2010; Sergey Denisov and Others v. Russia, nos. 1985/05 and 4 others, §§ 73-75, 19 April 2016; and Horváthová v. Slovakia, no. 74456/01, §§ 25-27, 17 May 2005). However, reference will still be made to the applicant throughout the present text. III.  ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 7.  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 ...” 8.  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). 9.  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). 10.  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. 11.  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. 12.  These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention. 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.  Decides that Ms Kalashnikova, the wife of the applicant in application no. 39965/13, has locus standi in the proceedings;   3.  Declares the applications admissible;   4.  Holds that these applications disclose a breach of Article 6 § 1 of the Convention concerning the unfairness of the civil proceedings;   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 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 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]     63510/11 30/09/2011 Sergiy Mykolayovych Pechenizkyy 06/04/1963 28/02/2011   Velykoburluk Local Court of Kharkiv Region 15/04/2011   Kharkiv Administrative Court of Appeal       35026/12 24/05/2012 Fedir Ivanovych Kotlenko 13/06/1946 27/01/2011   Krasnogvardiyskyy Local Court of Dnipropetrovsk 16/01/2012   Dnipropetrovsk Administrative Court of Appeal       48019/12 19/07/2012 Valentyna Ivanivna Gryb 08/07/1951 20/05/2011   Samarskyi Local Court of Dnipropetrovsk 28/05/2012   Dnipropetrovsk Administrative Court of Appeal       65722/12 05/10/2012 Leonid Oleksiyovych Petrov 16/06/1951 26/05/2011   Amur-Nyzhniodniprovskyy Local Court of Dnipropetrovsk 27/02/2012   Dnipropetrovsk Administrative Court of Appeal       71273/12 19/10/2012 Nataliya Oleksandrivna Kazakova 20/03/1954 20/07/2011   Leninskyy District Court of Dnipropetrovsk 24/05/2012   Dnipropetrovsk Administrative Court of Appeal       74771/12 12/11/2012 Viktor Petrovych Levachov 26/07/1946 17/06/2011   Leninskyy Local Court of Dnipropetrovsk 14/06/2012   Dnipropetrovsk Administrative Court of Appeal       21094/13 16/03/2013 Nina Leonidivna Malenko 24/07/1951 06/05/2011   Konotop Local Court of Sumy Region 28/09/2012   Kharkiv Administrative Court of Appeal 04/01/2013     24346/13 29/03/2013 Galina Nikolayevna Noskova 15/08/1946 29/07/2011   Leninskyy Local Court of Sevastopol 16/02/2012   Sevastopol Administrative Court of Appeal       29598/13 23/04/2013 Tetyana Valentynivna Glembotska 08/01/1949 22/02/2011   Babushkinskyi Local Court of Dnipropetrovsk 16/07/2012   Dnipropetrovsk Administrative Court of Appeal     34757/13 22/05/2013 Lyubov Logvinivna Kermas 06/05/1947 15/08/2011   Kirovskyy Local Court of Dnipropetrovsk 27/06/2012   Dnipropetrovsk Administrative Court of Appeal     37671/13 31/05/2013 Nina Afanasiyivna Khyzhnyak 23/08/1953 10/06/2011   Amur-Nyzhnyodniprovskyy Local Court of Dnipropetrovsk 24/01/2013   Dnipropetrovsk Administrative Court of Appeal     39965/13 11/06/2013 Viktor Ivanovich Romadanovskiy 30/03/1939   The applicant died on 18/01/2018. His wife, Tamara Pavlivna Kalashnikova, has the quality of heir. 26/07/2011   Kyivskyy Local Court of Odesa 05/09/2012   Odesa Administrative Court of Appeal 18/12/2012   47881/13 18/07/2013 Pavlo Semenovych Kavun 27/07/1953 17/06/2011   Leninskyy Local Court of Dnipropetrovsk 15/02/2013   Dnipropetrovsk Administrative Court of Appeal     52206/13 08/08/2013 Viktor Volodymyrovych Tymofiyev 03/12/1949 03/10/2011   Zhovtnevyi Local Court of Kryvyi Rih 21/12/2012   Dnipropetrovsk Administrative Court of Appeal     55129/13 17/08/2013 Sergiy Grygorovych Lobanov 18/08/1949 02/09/2011   Shevchenkivskyy Local Court of Kyiv 11/10/2012   Kyiv Administrative Court of Appeal     63197/13 26/09/2013 Oleksandr Georgiyovych Masiyan 20/08/1948 26/05/2011   Shevchenkivskyy District Court of Chernivtsi 27/03/2013   Vinnytsya Administrative Court of Appeal     66585/13 15/10/2013 Lyubov Mykhaylivna Savelyeva 10/08/1951 20/06/2011   Krasnogvardiysk Local Court of Dnipropetrovsk 29/10/2012   Dnipropetrovsk Administrative Court of Appeal     70813/13 31/10/2013 Volodymyr Dmytriyovych Bogoslavskyy 13/09/1948 05/08/2011   Leninskyi Local Court of Dnipropetrovsk 15/11/2012   Dnipropetrovsk Administrative Court of Appeal     79383/13 27/11/2013 Volodymyr Ivanovych Dzyadukh 27/08/1939 29/04/2011   Khmelnytskyi Local Court 05/06/2013   Vinnytsya Administrative Court of Appeal 13/08/2013     [1].  Plus any tax that may be chargeable to the applicants.