CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 26 janvier 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sA364133D { margin-top:14pt; margin-left:46.3pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s8616E537 { margin-top:14pt; margin-left:46.3pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sBD1BE8CC { width:33.89pt; display:inline-block } .s827CB718 { width:157.45pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 41881/18 Artur Sergiyovych VOYTSEKHOVSKYY against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 26   January 2023 as a Committee composed of:   Mārtiņš Mits , President ,   María Elósegui,   Kateřina Šimáčková , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   41881/18) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 23 August 2018 by a Russian national, Mr Artur Sergiyovych Voytsekhovskyy, who was born in 1971 and lives in Cherepovets (“the applicant”), and was represented by Mr   O.   Malanyuk, a lawyer practising in Ivano-Frankivsk; the decision to give notice of the complaint, concerning the observance of the principle of equality of arms in proceedings before the Cassation Court, to the Ukrainian Government (“the Government”), represented by their Agent, Mr I. Lishchyna, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     In June 2012 the applicant brought civil proceedings against G. and V. seeking the invalidation of a will. Following several rounds of proceedings, on 7 November 2016 the Court of Appeal allowed the applicant’s claim and declared the will null and void. G. lodged an appeal on points of law. 2.     On 2 December 2016 the Higher Specialised Court of Ukraine for Civil and Criminal Cases (“the Cassation Court”) opened the cassation proceedings. In its ruling, a copy of which was provided to the Court by the Government, the Cassation Court ordered that the ruling itself as well as the cassation appeal be sent to the applicant and invited the applicant to submit his comments by 23 January 2017. 3 .     According to an information note from the Cassation Court, a copy of which was made available to the Court by the Government, on 20 December 2016 the Cassation Court sent to the applicant, by registered mail, copies of the above-mentioned decision of 2 December 2016 and the defendant’s cassation appeal. The Government provided a photocopy of the notification letter with which the relevant documents had been sent to the applicant and which referred to the registered number of the correspondence. 4.     On 19 January 2018, following changes in the procedural legislation, the case file was transferred to the Supreme Court for examination. 5.     On 6 March 2018 the Supreme Court examined the case by way of an abridged procedure, without summoning the parties. It overturned the judgment of the Court of Appeal of 7 November 2016 because of the latter’s erroneous application of the substantive law and rejected the applicant’s claim. A copy of that judgment was sent to the applicant by registered mail on 16 April 2018. 6.     The applicant complained under Article 6 § 1 of the Convention that he had not been informed of the cassation proceedings in his case and had not been given an opportunity to comment on G.’s cassation appeal, in breach of the principle of equality of arms. THE COURT’S ASSESSMENT 7.     The Court observes that under domestic law the court had an obligation to send the notice of the cassation appeal to the applicant and to invite him to respond. Contrary to many other cases examined by the Court where there was no evidence in the case file that the relevant correspondence had been sent to the applicants (see, for example, Strizhak v.   Ukraine , no. 72269/01, §   39, 8 November 2005; Hudáková and Others v.   Slovakia , no.   23083/05, §§   30-32, 27 April 2010; and Lazarenko and   Others v.   Ukraine , nos.   70329/12 and 5 others, §§   36 and 43, 27 June 2017), in the present case the Government provided evidence showing that the Cassation Court did in fact send the notice of the cassation appeal to the applicant (see paragraph 3 above). 8.     In those circumstances and in the absence of any comments by the applicant on the merits of the Government’s observations, the Court finds it established that the Cassation Court had duly complied with the requirement prescribed by domestic procedural law. 9.     To the extent that the applicant’s application to the Court implies that that he had not received the correspondence sent to him by the Court of Cassation, the Court notes that whilst the general concept of a fair trial and the fundamental principle that proceedings should be adversarial require that court documents should be duly served on a litigant, Article 6 of the Convention does not go as far as obliging the domestic authorities to provide a perfectly functioning postal system (see, for example, Lazarenko and Others ,   cited above, § 37, and, in the context of Article 8 of the Convention, Foley v. the United Kingdom (dec.), no.   39197/98, 22 October 2002). 10.     The authorities may therefore only be held responsible for failure to send the relevant documents to the applicant. The mere fact that the applicant might not have received the correspondence sent to him by the Court of Cassation is not sufficient to lay an arguable basis for the claim that the applicant’s rights under Article 6 §   1 of the Convention were breached. 11.     Moreover, the Court notes that the applicant failed to make any enquiry with the courts about the state of the proceedings in his case for more than a year after delivery of the judgment of the Court of Appeal, despite the high probability, given the proceedings’ history, that the defendant would appeal against the judgment delivered in the applicant’s favour. 12.     The Court reiterates in this connection that it is incumbent on the interested party to display special diligence in the defence of his or her interests and to take the necessary steps to remain apprised of the developments in proceedings (see, among other authorities, Teuschler v.   Germany (dec.), no.   47636/99, 4 October 2001). 13.     In view of the above, the Court concludes that it has not been shown in the present case that the respondent State was responsible for the applicant’s failure to provide his comments on the appeal on points of law lodged by G. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 16 February 2023.     Martina Keller   Mārtiņš Mits   Deputy Registrar   President