FIFTH SECTIONCASE OF OSIPOV v. UKRAINE(Application no. 795/09)      JUDGMENT STRASBOURG8 October 2020 This judgment is final but it may be subject to editorial revision.In the case of Osipov v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Gabriele Kucsko-Stadlmayer, President, Ganna Yudkivska, Mattias Guyomar, judges,and Anne-Marie Dougin, Acting Deputy Section Registrar,Having regard to:the application against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Ukrainian national, Mr Oleksandr Sergiyovych Osipov (“the applicant”), on 10 December 2008;the decision to give notice to the Ukrainian Government (“the Government”) of the complaint concerning the principle of equality of arms and to declare inadmissible the remainder of the application;the parties’ observations;Having deliberated in private on 15 September 2020,Delivers the following judgment, which was adopted on that date:INTRODUCTIONThe application concerns the issue of a fair hearing in the applicant’s civil case. The applicant, who was representing himself, asked the appellate court to postpone the hearing owing to his upcoming inpatient treatment. The court proceeded without the applicant present but in the presence of the defendant’s representatives.THE FACTS1.  The applicant was born in 1959 and lives in Kherson. He was represented by Mr O.I. Borisenko, a lawyer practising in Kherson.2.  The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna of the Ministry of Justice.3.  The facts of the case, as submitted by the parties, may be summarised as follows.4.  On 6 March 2005 the applicant’s car was stolen.5.  On the same day an investigator from a local police station opened a criminal investigation in that connection.6.  In August 2005 the applicant lodged a civil claim with the Suvorivskyy District Court of Kherson, seeking compensation for pecuniary damage from the State, relying on Article 1177 of the Civil Code of Ukraine, which provides for compensation for pecuniary damage to be paid by the State to victims of crime if the perpetrator of the offence was not identified or is insolvent.7.  On 20 October 2005 the Suvorivskyy District Court of Kherson dismissed the applicant’s claim on the grounds that the pre-trial criminal proceedings were still pending and there was a chance that the perpetrator would be found. In addition, the court pointed to the absence of a special law establishing a mechanism for enforcing the provisions of Article 1177.8.  On 26 December 2005 the Kherson Regional Court of Appeal (“the Court of Appeal”) held a hearing in the absence of the parties and upheld the decision of the first-instance court. The decision of the Court of Appeal did not stipulate whether the applicant had been informed of that hearing.9.  The applicant appealed on points of law, complaining that he had not received notification of the hearing at the appellate court.10.  On 11 March 2008 the Kirovograd Regional Court of Appeal, acting as a court of cassation, quashed the decision of 26 December 2005, having found a discrepancy between the transcript of the hearing of 26 December 2005 and the case-file material. The former stated that the applicant had been duly notified of the hearing, while the latter did not contain evidence confirming that statement. Referring to Article 338 of the Code of Civil Procedure, the Kirovograd Regional Court of Appeal remitted the case to the Court of Appeal for reconsideration.11.  On 7 May 2008 the applicant applied for an adjournment of the hearing of 27 May 2008 due to his prospective inpatient treatment at a local hospital as from 13 May 2008. As confirmed by a date-received stamp, the registry of the Court of Appeal received the latter application. The applicant mentioned in his submissions to the national courts, including his application for adjournment, that he was a category-one participant in the Chernobyl disaster clean-up operation.12.  On 27 May 2008 the Court of Appeal held a hearing in the absence of the applicant. The respondent’s representatives, one of whom was a prosecutor, participated in the hearing and made oral submissions, asking the Court of Appeal to dismiss the applicant’s claim. The appellate court’s decision did not provide any information concerning the applicant’s request for adjournment or his notification of the hearing. It summarised the applicant’s arguments set out in his notice of appeal and, having found no grounds for holding otherwise, upheld the decision of the first-instance court.13.  The applicant appealed on points of law. He complained, inter alia, of an infringement of his procedural rights provided in Article 305 of the Code of Civil Procedure. In particular, he complained that the Court of Appeal had ignored his application for adjournment of 7 May 2008. He furthermore could not have received the notification of the time, date and venue of the hearing given that, following surgery, he had been receiving inpatient treatment from 13 to 24 May 2008 and outpatient treatment from 25 May to 6 June 2008.14.  On 9 September 2008 the Supreme Court of Ukraine refused to open the appeal-on-points-of-law proceedings. It rendered a one-page ruling, finding the applicant’s appeal on points of law to be unsubstantiated, without addressing any of the applicant’s above-mentioned grievances.RELEVANT LEGAL FRAMEWORK15.  The relevant provisions of the Code of Civil Procedure of 2004 read as follows:Article 158 – Examination of a case by a [first-instance] court in a court hearing“1. The examination of a civil case shall be carried out during a court hearing with individuals who are due to participate in the case being notified obligatorily ...”Article 304 – Procedure for examination of a case by an appellate court“1. A case shall be considered by an appellate court under the rules which govern the conduct of a hearing before the first-instance court, with exceptions and supplements set out in this chapter ...”Article 305 - Consequences of the failure of participants to appear before the court at the hearing of the case“1. The appellate court shall adjourn the hearing in the event that any of the participants fail to appear, where there is no information as to whether he or she had been served with a summons, or upon his or her request, where the reasons for [his or her] failure to appear are recognised by the court as serious.2. Failure to appear by parties or other persons involved in the proceedings who have been duly notified of the time and location of the examination of the case shall not preclude the [court] from examining the case.”Article 338 - Grounds for quashing a decision and remittal of the case for a new examination [by a court of cassation]1. A judicial decision is subject to mandatory quashing and remittal for a new examination if:...3) the case was examined in the absence of one of the parties, who had not been duly notified of the time and venue of the hearing;...4. Reasons and conclusions of a court of cassation, which formed the basis for the quashing of a decision, shall be obligatory to a first-instance court or an appellate court during reconsideration of a case.”16.  The other relevant provisions can be found in the case of Editorial Board of Grivna Newspaper v. Ukraine (no. 41214/08, §§ 44 and 46, 16 April 2019).ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION17.  The applicant complained that the hearing of the Court of Appeal of 27 May 2008 (“the hearing”) had been held in his absence and that the Supreme Court had failed to remedy this procedural violation. He 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 ... by [a] ... tribunal ...”Admissibility18.  The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.MeritsSubmissions by the parties19.  The applicant submitted that the Court of Appeal had proceeded to examine the case without his participation at the hearing. Consequently, he had had no possibility to present his case, while the representatives of the defendant had attended the hearing and had commented on his submissions. He maintained that the fair-trial guarantees of Article 6 § 1 of the Convention had been breached.20.  The Government submitted a letter from the acting head of the Khersonskyy Court, dated 4 March 2019, informing the office of the Government’s Agent that that the case-file material – apart from procedural documents relating to the case – had been destroyed on 16 December 2014. Therefore, the Government had no information in relation to whether the Court of Appeal had replied to the applicant’s application for adjournment or in relation to the reasons for the applicant’s absence at the hearing.21.  At the same time, they argued that the personal attendance of the applicant had not been crucial at the appeal stage of his civil case and that the applicant could not have provided any additional arguments than those set out in his claim. The Government furthermore argued that there was no indication that the proceedings had been unfair, as the Court of Appeal had considered the notice of appeal in detail and had given a reasoned decision. They asserted that there had been no violation of the guarantees of Article 6 § 1 of the Convention.The Court’s assessment22.  The Court reiterates that Article 6 of the Convention does not guarantee the right to be present before a civil court but it does enshrine a more general right to present one’s case effectively before the court and to enjoy equality of arms with the opposing side. Article 6 § 1 leaves to the State a free choice of the means to be used in guaranteeing litigants these rights (see Vardanyan and Nanushyan v. Armenia, no. 8001/07, § 86, 27 October 2016, and the references therein). Thus, the questions of personal presence, the form of the proceedings – oral or written – and legal representation are interlinked and must be analysed in the broader context of the “fair trial” guarantee of Article 6. The Court should establish whether the applicant, a party to the civil proceedings, had been given a reasonable opportunity to have knowledge of and comment on the observations made or evidence adduced by the other party and to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent (ibid.). From the Convention standpoint, an applicant does not need to show that his absence from a hearing resulted in actual prejudice or affected the outcome of the proceedings, for such a requirement would deprive the guarantees of Article 6 of their substance (see Gankin and Others v. Russia, nos. 2430/06 and 3 others, § 25, 31 May 2016). Finally, the Court reiterates that, in determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court (ibid.).23.  In the present case, on 7 May 2008 the applicant, a category-one participant in the Chernobyl disaster clean-up operation, who was representing himself, in order to ensure his attendance at the hearing, applied to the Court of Appeal for a postponement of the hearing. In his application, the applicant referred to his prospective inpatient treatment and to Article 305 of the Code of Civil Procedure. A stamp on the document indicates that on the same day the above request was received by the registry of the Court of Appeal. The applicant stayed in hospital between 13 and 24 May 2008 and it was not until 6 June 2008 that he completed his outpatient treatment.24.  On 27 May 2008 the Court of Appeal held a hearing in the applicant’s absence but in the presence of the defendant’s representatives, one of whom was a prosecutor. During the hearing, the defendant’s representatives made their submissions and asked the appellate court to dismiss the applicant’s claim. The appellate court’s decision of 27 May 2008 did not indicate whether the application for adjournment had been considered and refused or whether the applicant had been duly informed of the hearing. It only referred to his position set out in his notice of appeal.25.  As to the Government’s arguments (paragraph 21 above), the Court notes that since the domestic case file was destroyed and the decision did not contain any relevant information, it is unknown whether the Court of Appeal did in fact take into account that application for adjournment. The Court cannot speculate on these elements of fact. Neither can it speculate whether the applicant could have provided additional arguments than those set out in his claim, especially in view of the fact that the Court of Appeal did not comment whether the nature of the applicant’s claim might have rendered his presence unnecessary.26.  The Court reiterates, however, that the Code of Civil Procedure provided for an oral hearing before an appellate court, the scope of review of which was not limited to matters of law but also extended to verifying whether the relevant facts had been established. Given the broad scope of the appellate review, the fair-trial guarantees enshrined in Article 6 of the Convention, including, in particular, the right to make oral submissions to the court, were as important in the appellate proceedings as they were in the first-instance courts (see, mutatis mutandis, Gankin and Others, cited above, § 40).27.  It further observes that the first decision of the Court of Appeal, of 26 December 2005, rendered in the same case, was quashed by the court of cassation for the reason that the applicant had not been duly informed of the hearing, while the minutes of the hearing stated the opposite (see paragraph 10 above). The Court of Appeal was called to sit again in the case and to give the applicant an opportunity to participate in the hearing of his case. It proceeded, however, without the applicant being present. Nothing suggests, however, that the applicant had waived his right to be heard.28.  The Supreme Court issued a one-page ruling stating that the applicant’s appeal on points of law was unsubstantiated. It did not address the applicant’s complaints concerning his inability to attend the appellate-court hearing, the failure of the appellate court to adjourn the hearing and the failure of the appellate court to notify him of the time and date of the hearing.29.  In these circumstances, the Court believes that procedural fairness required that the applicant should have been given an opportunity to attend the appellate court’s hearing and to make his oral submissions. Given that this was not the case and that this issue was not subsequently clarified and remedied in the appeal-on-points-of-law proceedings, the Court considers that the above proceedings, taken as a whole, were incompatible with the guarantees of a fair trial.30.  There has therefore been a violation of Article 6 § 1 of the Convention.APPLICATION OF ARTICLE 41 OF THE CONVENTION31.  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.”Damage32.  The applicant claimed 1,500 euros (EUR) in respect of non‑pecuniary damage.33.  The Government found the claim unsubstantiated and asked the Court to reject it.34.  The Court considers that the applicant must have suffered non‑pecuniary damage as a result of the procedural violation of Article 6 § 1 of the Convention. The Court awards the applicant EUR 500 in this respect.Costs and expenses35.  The applicant did not claim any costs and expenses. Accordingly, the Court does not make any award under this head.Default interest36.  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,Declares the application admissible;Holds that there has been a violation of Article 6 § 1 of 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 in respect of non-pecuniary damage, plus any tax that may be chargeable;(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 8 October 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.Anne-Marie Dougin Gabriele Kucsko-StadlmayerActing Deputy Registrar President