Last Updated on April 24, 2019 by LawEuro
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 Minakand Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,
Mārtiņš Mits,
LadoChanturia, judges,
and LivTigerstedt, ActingDeputy 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 weredeprived 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 complainedthat 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 DomboBeheer 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 applicantsof the opportunity to comment on the appeals lodged in their casesand 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. Declaresthe 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.
LivTigerstedt 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] |
| 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 |
500 | ||
| 2. | 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 |
500 | ||
| 3. | 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 | 650 |
[1]. Plus any tax that may be chargeable to the applicants.
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