FIFTH SECTION
\nCASE OF MINAK AND OTHERS v. UKRAINE
\n(Applications nos. 19086\/12 and 13 others –
\nsee appended list)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n7 February 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Minakand Others v. Ukraine,<\/p>\n
The European Court of Human Rights (Fifth Section), sitting as a\u00a0Committee composed of:<\/p>\n
S\u00edofra O\u2019Leary, President,
\nM\u0101rti\u0146\u0161 Mits,
\nLadoChanturia, judges,
\nand LivTigerstedt, ActingDeputy Section Registrar,<\/p>\n
Having deliberated in private on 17 January 2019,<\/p>\n
Delivers the following judgment, which was adopted on that date:<\/p>\n
PROCEDURE<\/p>\n
1.\u00a0\u00a0The case originated in applications against Ukraine lodged with the Court under Article\u00a034 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) on the various dates indicated in the appended table.<\/p>\n
2.\u00a0\u00a0Notice of the applications was given to the Ukrainian Government (\u201cthe Government\u201d).<\/p>\n
THE FACTS<\/p>\n
3.\u00a0\u00a0The list of applicants and the relevant details of the applications are set out in the appended table.<\/p>\n
4.\u00a0\u00a0The 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.<\/p>\n
THE LAW<\/p>\n
I.\u00a0\u00a0JOINDER OF THE APPLICATIONS<\/p>\n
5.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n
II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE\u00a06 \u00a7 1 OF THE CONVENTION<\/p>\n
6.\u00a0\u00a0The applicants complainedthat the principle of equality of arms had been breached on account of the domestic courts\u2019 failure to serve appeals on them or otherwise inform them of the appeals lodged in their cases. They relied on Article 6 \u00a7 1 of the Convention, which reads as follows:<\/p>\n
Article\u00a06\u00a0\u00a7\u00a01<\/p>\n
\u201cIn the determination of his civil rights and obligations … everyone is entitled to a … hearing within a reasonable time by [a] … tribunal …\u201d<\/p>\n
7.\u00a0\u00a0The 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\u00a0June 1993, \u00a7\u00a063, Series\u00a0A no.\u00a0262), requires that the person against whom proceedings have been initiated should be informed of this fact (see Dilipak and Karakaya v.\u00a0Turkey, nos.\u00a07942\/05\u00a0and 24838\/05, \u00a7 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\u00a0vis-\u00e0-vis\u00a0his or her opponent (see\u00a0Avoti\u0146\u0161 v.\u00a0Latvia\u00a0[GC], no.\u00a017502\/07, \u00a7\u00a0119, ECHR 2016, and DomboBeheer B.V. v.\u00a0the Netherlands, 27\u00a0October 1993, \u00a7\u00a033, Series\u00a0A no.\u00a0274). 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\u2019s appeal. What is at stake is the litigants\u2019 confidence in the workings of justice, which is based on,\u00a0inter alia, the knowledge that they have had the opportunity to express their views on every document in the file (see\u00a0Beer v.\u00a0Austria, no.\u00a030428\/96, \u00a7\u00a7\u00a017\u201118, 6\u00a0February 2001).<\/p>\n
8.\u00a0\u00a0It 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\u00a0Gankin and Others v.\u00a0Russia, nos. 2430\/06\u00a0et al, \u00a7\u00a036, 31\u00a0May 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\u00a0Zavodnik v.\u00a0Slovenia, no.\u00a053723\/13, \u00a7\u00a070, 21\u00a0May 2015, with further references).<\/p>\n
9.\u00a0\u00a0In the leading case of Lazarenko and Others v. Ukraine, nos.\u00a070329\/12 and 5 others, 27 June 2017, the Court already found a violation in respect of issues similar to those in the present case.<\/p>\n
10.\u00a0\u00a0Having 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\u2019 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\u00a06 of the Convention.<\/p>\n
11.\u00a0\u00a0These complaints are therefore admissible and disclose a breach of Article\u00a06 \u00a7 1 of the Convention.<\/p>\n
III.\u00a0\u00a0OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW<\/p>\n
12.\u00a0\u00a0The 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 \u00a7 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\u00a035\u00a0\u00a7\u00a03\u00a0(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, \u00a7\u00a7 48-54, 29\u00a0October 2015) and Ponomaryov v. Ukraine(no. 3236\/03, \u00a7\u00a7 40-42, 43 and 47, 3\u00a0April 2008).<\/p>\n
IV.\u00a0\u00a0APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n
13.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n
\u201cIf 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.\u201d<\/p>\n
14.\u00a0\u00a0Regard being had to the documents in its possession and to its case\u2011law, the Court considers it reasonable to award the sums indicated in the appended table.<\/p>\n
15.\u00a0\u00a0The 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.<\/p>\n
FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/p>\n
1.\u00a0\u00a0Decides to join the applications;<\/p>\n
2.\u00a0\u00a0Declaresthe applications admissible;<\/p>\n
3.\u00a0\u00a0Holds that these applications disclose a breach of Article\u00a06 \u00a7 1 of the Convention concerning the unfairness of the civil proceedings;<\/p>\n
4.\u00a0\u00a0Holds 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);<\/p>\n
5.\u00a0\u00a0Holds<\/p>\n
(a)\u00a0\u00a0that 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;<\/p>\n
(b)\u00a0\u00a0that 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.<\/p>\n
Done in English, and notified in writing on 7 February 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and\u00a03 of the Rules of Court.<\/p>\n
LivTigerstedt\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 S\u00edofra O\u2019Leary<\/p>\n
Acting Deputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n
<\/p>\n
APPENDIX<\/p>\n
List of applications raising complaints under Article 6 \u00a7 1 of the Convention<\/p>\n
(lack of opportunity to comment on the appeal)<\/p>\n