CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 16 janvier 2020

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UKRAINE (Application no. 39071/08)             JUDGMENT   STRASBOURG 16 January 2020   This judgment is final but it may be subject to editorial revision. In the case of Stryzh 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 10 December 2019, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 39071/08) against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Ms Valentyna Demydivna Stryzh (“the applicant”), on 6   August 2008. 2.     The applicant was represented by Mr A.O. Kuznyetsov, a lawyer practising in Zaporizhzhya. The Ukrainian Government (“the Government”) were represented by their Agent, Mr   I.   Lishchyna of the Ministry of Justice. 3.     The applicant complained under Article 6   § 1 of the Convention of a breach of equality of arms and excessive length of proceedings. Referring to Article 1 of Protocol No. 1 to the Convention, she complained about deprivation of her property. 4.     On 20   February 2013 notice of the application was given to the Government. 5.     The Government objected to the examination of the application by a Committee. Having considered the Government’s objection, the Court rejects it (see, in respect of a similar approach, Nedilenko and Others v.   Ukraine [Committee], no. 43104/04, §   5, 18 January 2018; Geletey v.   Ukraine [Committee], no. 23040/07, §   4, 24 April 2018; and Shcherbakov v.   Ukraine [Committee], no. 39708/13, §   4, 20 September 2018). THE FACTS THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1937 and lives in Zaporizhzhya. 7.     On 26 December 2001 the applicant bought a flat in the city of Zaporizhzhya from Mr T. She paid 26,500 Ukrainian hryvnias (UAH). 8.     On 17 May 2005 the applicant was joined as a party to ongoing proceedings concerning a civil dispute between the seller of the flat and other interested parties. The applicant was joined to the proceedings as a co ‑ defendant because the claimants were making additional claims seeking to invalidate the purchase contract for the flat concluded by the seller and the applicant in 2001. 9.     On 19 October 2005 the Zavodskyy District Court of Zaporizhzhya found, inter alia , that the purchase contract for the flat was invalid. It further found that Mr V.S. and Mr I.S. were the owners of that flat. The court ordered that Mr T. had to pay UAH 26,500 to the applicant. The applicant appealed. 10.     On 13 December 2005 the Zaporizhzhya Regional Court of Appeal quashed the decision of 19 October 2005 as unlawful and dismissed the claims as unsubstantiated. The claimants appealed against that decision in cassation. 11.     On 4 April 2006 the Supreme Court of Ukraine issued a ruling opening cassation proceedings and ordering that copies of the notice of cassation appeal were to be sent to the parties to the proceedings who, in turn, were to be invited to submit their replies by 4 May 2006. 12.     On 24 October 2007 the case file was transferred to the Odessa Regional Court of Appeal for consideration. 13.     The applicant was not notified of the cassation appeal and was not otherwise informed that the cassation proceedings had been opened. 14.     On 3 April 2008 the Odessa Regional Court of Appeal, acting as a court of cassation, examined the case. The parties were not informed of the hearing. Having considered the cassation appeal and the case file, the cassation court quashed the decision of 13   December 2005 as unfounded and upheld the decision of 19 October 2005. On 2 May 2008 the applicant found out about the hearing and the decision of the cassation court. 15.     On 3 July 2009 V.S. instituted court proceedings seeking the applicant’s eviction from the flat. On 21 April 2010 the Ordzhonikidzevskyy District Court of Zaporizhzhya ordered the applicant’s eviction. No appeal was lodged against that decision. RELEVANT DOMESTIC LAW 16.     The relevant provisions of the Code of Civil Procedure of 2004, as worded at the material time, read as follows: Article 328 Reviewing the case file, sending copies of the notice of cassation appeal to the parties to the proceedings, reply to the notice of cassation appeal “1. Upon receipt of a notice of cassation appeal ... the court of cassation shall decide within ten days whether to open cassation proceedings, and once the appropriate decision has been made, shall review the case file, send copies of the cassation appeal and the enclosed materials to the parties to the case, and set a time-limit for filing a reply to the appeal ...” Article 333 Procedure for consideration of a case by the court of cassation “1. In cassation proceedings, a case shall be considered by a panel of five judges without summoning the participants of the proceedings ...” THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION (fairness) 17.     The applicant complained that her right to a fair hearing had been breached because she had not been informed of the cassation proceedings and had not been given the opportunity to respond to the notice of cassation appeal. She relied on Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ...” Admissibility 18.     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 19 .     The applicant underlined that the failure of the court of cassation to send her a copy of the notice of cassation appeal in order for her to be able to reply to it had been contrary to Article 328 of the Code of Civil Procedure. 20.     The Government disagreed, stating that the applicant’s right to a fair hearing had not been breached, as the court of cassation had considered facts and material of which the parties had already been aware, and the fact that the applicant had not been able to submit a reply to the notice of cassation appeal had not led to a wrongful consideration of her case. 21.     The Court has already found that a failure to inform litigants of appeals lodged in their cases, with the consequence that they are not given the opportunity to participate before the court of appeal in order to defend their civil rights, amounts to a breach of Article 6 § 1 (see Lazarenko and   Others v. Ukraine , nos. 70329/12 and 5 others, §§   36 and 43, 27 June 2017; Sozonov and Others   v.   Ukraine [Committee], no. 29446/12 and   11   others, §§ 7 and 10, 8 November 2018; and Bila and Others v.   Ukraine [Committee], no. 36245/12 and 10 others, §§   8 and 11, 20   December 2018). The Court has also found a violation of equality of arms principle when the Supreme Court failed to forward a copy of the plaintiffs’ written observations to the applicants (see Hudáková and Others v. Slovakia , no.   23083/05, §§ 30-32, 27 April 2010). 22.     In the present case, the cassation proceedings were crucial for the determination of the applicant’s property rights. Having been joined as a party to the first-instance and appeal proceedings, she should then have been given the opportunity to take part in the cassation proceedings. 23.     However, the notice of the cassation appeal lodged by the claimants was not provided to the applicant, who was not even informed of the existence of the cassation proceedings, despite the fact that, under Article   328 of the Code of Civil Procedure, the court of cassation was required to send her a copy of it and invite her to respond. As a result, the applicant was deprived of the opportunity to have knowledge of and to comment on the opposing party’s appeal in cassation and was thus deprived of her right to adversarial proceedings. 24 .     Accordingly, there has been a violation Article 6 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 1 of protocol no. 1 to THE CONVENTION 25.     The applicant complained of a violation of her right to the peaceful enjoyment of her possessions. In particular, she claimed that the compensation awarded was insufficient to buy a comparable dwelling. She relied on Article 1 of Protocol No. 1 to the Convention, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” 26.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore declares it admissible. However, in view of its findings under Article 6 § 1 of the Convention (see paragraphs 19-24 above), the Court does not consider it necessary to examine it separately (see Nichifor v. the Republic of Moldova , no. 52205/10, § 34, 20 September 2016; Melnic v. the Republic of Moldova, [Committee], no.   46351/08, § 36, 2 July 2019; and Albina v.   Romania , no. 57808/00, § 43, 28 April 2005). ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION (length of the proceedings) 27.     The applicant further complained of the lengthy consideration of her case by the national courts. She relied on Article 6 § 1 of the Convention. 28.     The Court notes that the applicant was joined to the proceedings on 17 May 2005, and the final decision was taken on 3 April 2008. The overall period to be considered did not exceed three years for three levels of jurisdiction, which is not excessive (see, a contrario , Svetlana Naumenko v.   Ukraine , no. 41984/98, §§ 86-87, 9 November 2004). 29.     It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. ALLEGED VIOLATION OF Article 8 of THE CONVENTION 30.     In her initial submissions, the applicant seemed to raise an issue under Article 8 of the Convention related to her right to respect for her home. 31.     However, the applicant did not pursue this complaint further. In particular, she made no submissions to this effect at the stage of notifying the Government of the application. It follows from her submissions that the only matters of concern to her were the issues under Article 6 § 1 and Article 1 of Protocol No. 1 to the Convention. 32.     In such circumstances, the Court concludes that there is no basis to pursue the matter. APPLICATION OF ARTICLE   41 OF THE CONVENTION 33.     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 34.     The applicant claimed 338,800 Ukrainian hryvnias (UAH) (the equivalent of about 24,900 euros (EUR) at the time of submission of the just satisfaction claim) – allegedly corresponding to the value of the flat in   2008 – in respect of pecuniary damage and UAH 50 000 (the equivalent of about EUR 3,700 at the time of submission of the just satisfaction claim) in respect of non ‑ pecuniary damage. 35.     The Government contested those claims. 36.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged. In particular, it is not for the Court to speculate as to what the outcome of the proceedings would have been if they had been in conformity with the requirements of Article 6 § 1 of the Convention (see Milatová and Others v. the Czech Republic , no. 61811/00, § 70, ECHR 2005 ‑ V). At the same time, the Court notes that the applicant is entitled under Ukrainian law to request a rehearing of her case in the light of the Court’s finding that the domestic courts did not comply with Article 6 in her case (compare with Bochan v. Ukraine , no. 7577/02, § 97, 3 May 2007). 37.     As to compensation in respect of non-pecuniary damage, the Court, ruling on equitable basis, awards the applicant EUR 500. Costs and expenses 38.     The applicant did not submit any claims under this head. The Court therefore makes no award. Default interest 39.     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 not to pursue the examination of the applicant’s complaint of an alleged violation of Article 8 of the Convention; Declares the complaint under Article 6 § 1 of the Convention as regards the length of the proceedings inadmissible; Declares the complaint under Article 6 § 1 of the Convention as regards the requirement of adversarial proceedings and the complaint under Article 1 of Protocol No. 1 to the Convention admissible; Holds that there has been a violation of Article 6 § 1 of the Convention as regards the requirement of adversarial proceedings; Holds that there is no need to examine the merits of the complaint under Article 1 of Protocol No. 1 to the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 500 (five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non-pecuniary damage; (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 applicant’s claim for just satisfaction. Done in English, and notified in writing on 16 January 2020, pursuant to Rule   77   §§   2 and   3 of the Rules of Court.   Milan Blaško   Síofra O’Leary Deputy Registrar   President