CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 30 mai 2024

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The applicants’ complaints under Article 6 § 1 of the Convention concerning the deprivation of an opportunity to comment on the other party’s submissions or to present their case before domestic court were communicated to the Ukrainian Government (“the Government”). Application n o . 25667/22 The circumstances of the case The applicant was sued by an electricity company for debt recovery. She argues that she was not informed of the proceedings before the first-instance court at all. In particular, a letter from the court informing her of the proceedings was sent to her previous address where it was received by a new occupant of the house, unrelated to her. She argues that she did not receive that letter and did not empower the new occupant to receive her correspondence. On 20 September 2019 the Holosiyivskyy District Court of Kyiv delivered its judgment against the applicant under a simplified written procedure. The applicant lodged an appeal seeking fresh examination at a first-instance court due to the allegedly wrong determination of a territorial jurisdiction and argued that (i) the plaintiff had lodged a claim at the district court attached to her previous place of residence, even though the plaintiff was aware that the applicant no longer lived there; (ii) the district court had sent all documents in the case to that wrong address, so she had not been aware of the proceedings. She did not ask to quash the decision on any other grounds apart from the allegedly wrong territorial jurisdiction. On 20   September 2021 the Kyiv Court of Appeal upheld the judgment of the Holosiyivskyy District Court of Kyiv. It ruled that the territorial jurisdiction in the case had been determined by the place of performance of the service contract (electricity supply) rather than the applicant’s place of residence, and therefore it had been defined correctly. The Kyiv Court of Appeal did not examine the issue of non-notification. On 1 December 2021 the Supreme Court dismissed the applicant’s cassation appeal as the case was considered trivial. Relevant domestic law Code of Civil Procedure of 2004   Article 367 provides that a court of appeal examines a case considering both evidence available in the casefile and submitted additionally on appeal. A court verifies lawfulness and reasonableness of a first-instance court decision within the limits of arguments and claims submitted on appeal. Application n o . 40300/22 The applicant, who used to be a military serviceman, instituted judicial proceedings against his former employer (Military Unit no. 9971) seeking indexation of his salary arrears. On 2 November 2021 the Volynskyy Circuit Administrative Court found for the applicant, but the defendant appealed against that judgment. On 17 January 2022 the Eighth Administrative Court of Appeal (hereinafter – “the Court of Appeal”) opened the appellate proceedings and on 20 January 2022 sent the decision on opening the proceedings together with a copy of the defendant’s appeal to the applicant, by a registered post. According to the documents provided by the Government in their observations, the Court of Appeal also served a copy of that decision, together with a copy of the defendant’s appeal, on the applicant’s lawyer who received it on 21 January 2022. On 2 February 2022 the Eighth Administrative Court of Appeal overruled the judgment and found against the applicant. The applicant appealed in cassation stating that he had received the defendant’s appeal on 29 January 2022 and responded to it on 2 February 2022 (within the five days’ time-limit prescribed by law), but the Court of Appeal had not waited for his response and had considered the case without it. Therefore, the applicant argued that he had been deprived of an opportunity to comment on the defendant’s appeal. On 14 April 2022 the Supreme Court refused to open cassation proceedings in the applicant’s case as it was considered trivial. THE LAW Joinder of the applications Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision. Complaints under Article 6 § 1 of the Convention (failure to notify the applicant of the other party’s submissions or deprivation of the right to present the case) Having examined all the material before it, the Court considers that, for the reasons stated below, the applicants’ complaints about impossibility to effectively present their case before domestic courts, including in view of the impossibility to study the other party’s submissions, are inadmissible. In particular, the Court notes that in application no. 25667/22, the applicant’s absence in the first-instance court did not deprive her of an adequate opportunity to present her case. As under the Ukrainian law appellate courts have full jurisdiction to examine both procedural shortcomings and the merits of the case, the applicant could submit her comments disputing before the appellate court the establishment of the facts by the Holosiyivskyy District Court of Kyiv, any findings by that court and the outcome of the case. Instead, in her appeal the applicant only challenged the territorial jurisdiction in the proceedings and did not submit any complaints on the merits of the case, and the Kyiv Court of Appeal ruled accordingly. Therefore, there is no indication that the applicant was deprived of an opportunity to present her case; the choice of the strategy for the appeal was her own and she did not provide the appellate court with an opportunity to correct any mistake which in her view had committed the first-instance court. In application no. 40300/22, the applicant had been duly served with a copy of the defendant’s appeal via his lawyer. As for the applicant’s statement in his observations that no copy of the appeal had in fact been attached to the court’s letter, the Court assesses it critically since the applicant has never raised this issue before the domestic authorities. In particular, even assuming that the Court of Appeal did not enclose a copy of the appeal in the post to the lawyer, the latter should have shown due diligence and referred to the court with an appropriate request. Nevertheless, the applicant and his lawyer neither did so, nor raised the issue in the reply to the appeal. Consequently, the Court of Appeal proceeded with a judgment based on the materials available in the casefile, so there is no indication of a breach of the applicant’s right to comment on the other party’s submissions in the present case. In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Articles   35   §§   3 and   4 of the Convention. Remaining complaints In application no. 40300/22, the applicant also raised another complaint under Article   6   §   1 of the Convention as regards the length of the proceedings. The Court considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, this complaint either does not meet the admissibility criteria set out in Articles   34 and   35 of the Convention or does not disclose any appearance of a violation of the rights and freedoms enshrined in the Convention or the Protocols thereto. It follows that this part of application no. 40300/22 must be rejected in accordance with Article   35   §   4 of the Convention. For these reasons, the Court, unanimously, Decides to join the applications; Declares the applications inadmissible. Done in English and notified in writing on 20 June 2024.     Viktoriya Maradudina   Carlo Ranzoni   Acting Deputy Registrar   President   APPENDIX List of applications raising complaints under Article   6 § 1 of the Convention (failure to notify the applicant of the other party’s submissions or of a hearing) No. Application no. Date of introduction Applicant’s name Year of birth   Representative’s name and location Nature of the dispute First-instance hearing/ decision date Court Appeal hearing/ decision date Court Date of the decision on cassation appeal, if applicable Court     25667/22 09/05/2022 Olena Viktorivna MOYSEYENKO 1976 Buryk Alla Vasylivna Kyiv debt recovery from the applicant by a utilities company 20/09/2019   Golosiyivskyy District Court of Kyiv 20/09/2021   Kyiv Court of Appeal 01/12/2021   Supreme Court     40300/22 08/08/2022 Igor Oleksandrovych SHAMUTYLO 2000     indexation of salary arrears 02/11/2021   Volynskyy Circuit Administrative Court 02/02/2022   Eighth Administrative Court of Appeal 14/04/2022   Supreme Court