European Court of Human Rights

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 2911/03
by Klara Nikolayevna SHYTIK
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 30 September 2008 as a Chamber composed of:

Peer Lorenzen, President,
Rait Maruste,
Karel Jungwiert,
Volodymyr Butkevych,
Mark Villiger,
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,

Having regard to the above application lodged on 5 November 2002,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Klara Nikolayevna Shytik, is a Ukrainian national who was born in 1937 and lives in Bratske, the Mykolayiv Region. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In December 2001 the applicant instituted civil proceedings against Mrs G.N., her neighbour, seeking damages for the latter's having hit her on the head with a stick and caused her light bodily injuries.

At the hearing the court examined the parties and four witnesses.

The applicant argued that the defendant had started hitting her in response to a reprimand for allowing her turkeys to graze in the applicant's garden. The defendant acknowledged having had an argument with the applicant, but denied hitting her. She submitted that, on the contrary, the applicant had hit and scratched her, and had torn her jacket.

One witness, Mrs T.N., claimed to have seen the defendant hitting the applicant on the head. Another witness, Mrs G.P., claimed that it had been the applicant who had hit the defendant with a shovel, and that the defendant had not harmed her. Mr K.N., the applicant's husband, was unable to explain who started the fight; however, he claimed to have seen the defendant hit his wife. Finally, Mr E.N., the defendant's husband, submitted that he had learned about the fight from his wife.

On 18 February 2002 the Bratskе Court (Місцевий суд Братського району Миколаївської області) partly allowed the applicant's claim for damages. Mrs G.N. appealed before the Mykolayiv Regional Court of Appeal (Апеляційний суд Миколаївської області).

According to the Government, the Regional Court duly notified the applicant that the hearing in her case was scheduled for 10 April 2002. In support of this argument the Government presented a copy of page 43 of the case-file, containing an acknowledgement slip for a summons addressed by the Regional Court to the applicant's home address, which included the following text: “the summons [was] received [on] 4 April 2002; delivered for handing over to Shytik”. The date and the applicant's last name are handwritten, while the remainder of the text is preprinted. According to the postmarks on the document, it was despatched from Mykolayiv on 29 March 2002 and sent back from Bratske on 5 April 2002.

According to the applicant, she never received the above notification and therefore failed to appear at the hearing.

On 10 April 2002 the Regional Court decided to hold the hearing in the applicant's absence, noting that she had been duly notified of its date and time. It heard the defendant, who repeated the version of events submitted to the first-instance court. No questions were asked of her. Lastly, the court examined documentary evidence submitted to the first-instance court. According to the minutes of the hearing, contained on pages 45 to 48 of the case-file, it started at 12:55 and finished at 13:20 with the delivery of a new judgment, by which the applicant's claims were dismissed.

The Regional Court found that the District Court had erred in assessing the evidence. In particular, the submissions of Mrs T.N., the only witness in the applicant's favour, were inconsistent, as she had testified that the incident had happened on a different date. The statements by the other witnesses were insufficient to prove that the defendant had assaulted the applicant rather than defended herself.

On 23 May 2002 the applicant appealed in cassation. Her only complaint was that she had been unlawfully deprived of an opportunity to attend the hearing on appeal, as the case-file materials contained no proof that the summons had been served on her.

On 11 September 2002 the Supreme Court of Ukraine rejected the applicant's request for leave to appeal in cassation.

B.  Relevant domestic law

1.  The Code of Civil Procedure of 1963 (repealed as of 1 September 2005).

The relevant provisions of the Code concerning notification arrangements are summarized in the judgment in the case of Strizhak v. Ukraine (no. 72269/01, § 30, 8 November 2005).

The Code also provided a clear timeframe for organising the appeal hearings. According to its provisions, an appeal against a judgment was to be lodged with the first-instance court within one month of delivery of the judgment (Articles 292 and 294). The court was obliged to send a copy of the appeal to the other party no later than the following day and to transfer the case-file to the appellate instance court once the time-limit for lodging the appeal had expired (Article 295). Having received the case-file, an appellate-instance judge to whom the case was assigned was to conduct preparatory activities within a ten-day period (Article 299), following which the court was to schedule a hearing date within one month. The court's registry was to send immediately notification of the hearing to the participants in the proceedings (Article 300).

Under Article 303, if the court of appeal did not receive confirmation of delivery of the summons to an absentee party, it was to postpone the hearing. If the court received such confirmation, it could proceed with examination of the case in absence of the party, duly notified of the hearing.

Under Article 336, the Supreme Court of Ukraine was obliged to quash a judgment if the case had been considered in the absence of a party who had not been notified of the hearing on appeal.

2.  Instruction on practical arrangements in the Supreme Court of the Autonomous Republic of the Crimea and in the regional, interregional, Kyiv and Sevastopol city and district (city) courts, as approved by Order no. 22/5 of the Ministry of Justice on 13 March 1997 (repealed as of 8 April 2003)

The Instruction provided that in absence of an addressee, summons could be handed to another adult member of the household or to certain officials, who were under an obligation to hand it to the addressee as soon as possible (Supplement, Form 14).

The Instruction also provided that the case documents, arranged in chronological order, be sewn into the case-file with thread and needle (paragraph 7.2).

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention that, by failing to notify her of the appeal hearing and by holding a hearing in her absence, the judicial authorities had placed her at a substantial disadvantage vis-à-vis her opponent in presenting her case, and had therefore infringed the principle of equality of arms. She further alleged that the courts in general were biased and corrupt in handling her case.

THE LAW

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

According to the Government, the Regional Court notified the applicant about the hearing properly and in good time. The State was therefore not responsible for the applicant's failure to attend the hearing.

According to the applicant, the Government's submissions were misleading, as she had never received the notification of the hearing to which they referred.

The Court reiterates that the principle of equality of arms is only one feature of the wider concept of a fair trial, which also includes the fundamental right that proceedings should be adversarial (see Ruiz-Mateos v. Spain, judgment of 23 June 1993, Series A no. 262, p. 25, § 63). The principle of equality of arms – in the sense of a “fair balance” between the parties – requires that each party should be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among other authorities, Dombo Beheer B.V. v. the Netherlands, judgment of 27 October 1993, Series A no. 274, p. 19, § 33).

The Court observes that the applicant in the present case was able to present her case in person before the first-instance court and to comment on all the submissions by the other parties. The applicant did not, however, attend the appeal hearing, purportedly, as she was never notified of it by the Regional Court.

In this regard the Court notes that the principle of equality of arms would be devoid of substance if a party to the case were not notified of the hearing in such a way as to have an opportunity to attend it, should he or she decide to exercise a right to appear established in domestic law (see Zagorodnikov v. Russia, no. 66941/01, § 30, 7 June 2007). This is especially so where the judicial authorities are expected, as in the present case, to determine factual issues, and where the applicant's claim is, by its nature, largely based on her personal experience (see Salomonsson v. Sweden, no. 38978/97, § 39, 12 November 2002 and Kovalev v. Russia, no. 78145/01, § 37, 10 May 2007). However, Article 6 cannot be construed as conferring on litigants an automatic right to obtain a specific form of service of court documents (see Bogonos v. Russia (dec.), no. 68798/01, 5 February 2004 and Gurzhyy v. Ukraine (dec.), no. 326/03, 1 April 2008).

The Court notes that, as transpires from the copy of the acknowledgment slip submitted by the Government, the Regional Court properly addressed notification about the hearing to the applicant's home address and, regard being had to the postmarks, it was served in good time. Furthermore, the slip was placed on page 43 in the case-file, in which, according to applicable regulation, all the pages were to be arranged in chronological order and sewn by thread. The slip precedes the minutes of the hearing (pages 45-48). In light of these facts and absent any prima facie evidence of forgery, it follows that the Regional Court received the acknowledgment slip prior to the hearing.

However, the question arises whether the Regional Court was under a duty to verify the authorship of the handwriting on it. In this regard the Court reiterates, firstly, that in the applicant's absence the notification could lawfully be handed to another person, such as an adult member of her household. Furthermore, even assuming that the acknowledgment slip had been signed by an unauthorised person, the applicant had an opportunity to raise this issue in her cassation appeal before the Supreme Court. Under the domestic law, the Supreme Court had power to overturn the Regional Court's judgment if it were established that notification of the hearing had been defective. Although the applicant complained in her cassation appeal that she had not been notified of the hearing, she stated only in a very general manner that the case-file, contained no proof of her notification. Assuming that the acknowledgement slip was properly sewn in the case-file, absent any evidence to the contrary, the Supreme Court cannot be considered to have been arbitrary in rejecting the applicant's vague and general statement as unsubstantiated.

In sum, the Court considers that the respondent State cannot be held responsible for a violation of the principle of equality of arms in the present case. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

Having carefully examined the applicant's submissions in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention.

It follows that this part of the application must likewise be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President