Moyseyenko and Shamutylo v. Ukraine

FIFTH SECTION

Application no. 25667/22 Olena Viktorivna MOYSEYENKO and Igor Oleksandrovych SHAMUTYLO against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 30 May 2024 as a Committee composed of:

Carlo Ranzoni , President , Mārtiņš Mits, María Elósegui , judges ,

and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having regard to the above applications lodged on the various dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The list of the applicants is set out in the appended table.

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”).

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.

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.

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

Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

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.

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