FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1702/03 by Eduard Petrovych MELNYK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 2 October 2007 as a Chamber composed of:

Mr P. Lorenzen , President , Mrs S. Botoucharova , Mr K. Jungwiert , Mr V. Butkevych , Mrs M. Tsatsa-Nikolovska , Mr R. Maruste , Mrs R. Jaeger, judges , and Mrs C. Westerdiek , Section Registrar ,

Having regard to the above application lodged on 15 November 2002,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.

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, Mr Eduard Petrovych Melnyk, is a Ukrainian national who was born in 1933 and lives in Lviv. He was represented before the Court by Mr R. Taratula, a lawyer practising in the Lviv Region . The Ukrainian Government (“the Government”) were represented by their Agent s , Mr Y. Zaytsev and Mrs I. Shevchuk .

I. THE CIRCUMSTANCES OF THE CASE

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

On 15 May 1993 the applicant and the Termoprylad Company concluded a service contract, under which the applicant undertook to assist the company in the promotion of its products and the company was to pay the applicant 1% of the price of the contracts with third parties arranged by the applicant.

In May 1997 the applicant instituted proceedings in the Frankivskyy District Court of Lviv against the company, seeking the recovery of debts under the contract of 15 May 1993 and compensation. He referred to specific contracts which the defendant company had concluded allegedly due to his assistance. In the course of the proceedings the applicant amended his claim on three occasions.

The applicant and the lawyer, who represented him in the proceedings, lodged ten motions with the court, requesting the latter to oblige the defendant company to provide copies of the contracts, which it had concluded with third parties allegedly due to the assistance of the applicant. According to him, although the court had allowed his motions and had made the requests, the defendant company had failed to submit copies of all such contracts and had refused to acknowledge that some of the contracts had existed.

O ut of thirty-five hearings scheduled by the court between May 1997 and May 2001 eleven were adjourned due to the absence of the applicant or of both parties and ten were adjourned because of the applicant ’ s motions for calling of evidence. Ten hearings were adjourned on the court ’ s own motion or because of the absence of the representatives of the defendant company.

On 23 May 2001 the court found against the applicant. The court based its judgment on the oral and written statements of three witnesses on behalf of the defendant company, who had been questioned by the court and the parties in the course of the proceedings, as well as the documents submitted by that company.

In particular, the court held that in 1994-1995 the applicant had been paid 2,392,968 karbovantsiv [1] (the former transitional currency of Ukraine before September 1996) , for which the defendant company had provided copies of the payment slips. The court further held that in 1993-1995 the company had also paid the applicant 533,259 karbovantsiv [2] , which had been evidenced by the written statements of the chief accountant of that company and had been confirmed by the oral statements of Mr K., an employee of the same company. The court disregarded the applicant ’ s submissions to the contrary, as they had not been supported by documentary evidence. As to the remainder of the applicant ’ s claims, the court held that the applicant had failed to submit evidence that the company was obliged to pay him the money.

On 21 August 2001 the Lviv Court of Appeal held that the applicant had failed to comply with the formalities envisaged for the introduction of appeals and remitted his appeal to the first instance court.

On 17 September 2001 the applicant lodged with the Frankivskyy District Court of Lviv the corrected version of his appeal. He argued, inter alia , that the first instance court, in rejecting a part of his claims, should not have relied on the submissions of the representatives of the defendant company, which had not been supported by the relevant financial documents.

On 24 December 2001 the Lviv Regional Court of Appeal considered the applicant ’ s appeal and rejected it as unsubstantiated. In particular, the court of appeal held that the first instance court had duly assessed the evidence in the case and had come to the right conclusions. It noted that the applicant ’ s claims had not been supported by documentary evidence.

In the course of the proceedings before the first instance court and the court of appeal the applicant sought an independent expert examination in order to clarify the extent to which the payments had been made. He did not receive a reply to his requests.

On 22 May 2002 a panel of three judges of the Supreme Court rejected his request for leave to appeal in cassation. It found that there were no grounds for referral of the case to its Civil Chamber.

II. RELEVANT DOMESTIC LAW

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

According to Article 29 of the Code, the circumstances of the case, which according to the law had to be established by specific evidence, should not be established by any other evidence.

Article 172 envisaged that a court had to adjourn a hearing if one of the parties failed to appear before it and there was no confirmation that he or she had been duly informed about that hearing . A court might adjourn a hearing if a party, who had been duly informed about the date and time of the hearing, failed to appear for the reasons which the court found justifiable.

Pursuant to Articles 301 and 305, the court of appeal verified whether the decision of the first instance court was lawful and duly reasoned. The court of appeal had the power to examine new evidence, and the evidence which allegedly had not been examined in compliance with the Code. It was entitled

(a) to reject an appeal;

(b) to quash the judgment of the first instance court and to remit the case for a fresh consideration, if a procedural violation prevented the court of appeal to examine new evidence or the evidence which the first instance court had not examined;

(c) to quash the judgment of the first instance court and to discontinue the proceedings;

(d) to change the judgment or to adopt a new judgment.

According to Article 307, the judgment of the first instance court should be quashed and the case should be remitted for a fresh consideration

(a) if the case had been considered by a person, who had not been entitled to sit as a judge in the case;

(b) if the judgment had been adopted or singed by a judge who had not heard the case;

(c) if the case had been heard in absence of a person who had not been duly informed about the time and place of a hearing; or

(d) if the judgment concerned the rights and obligations of persons who had not participated in the case.

B . Regulation of the National Bank of Ukraine of 25 June 1992 concerning cash transactions in the field of economy of Ukraine (repealed as of 2 February 1995 )

Pursuant to paragraphs 10 and 12 of the Regulation, cash payments should be made and documented by companies ’ pay units or cashiers. In accordance with paragraph 15, cashiers should demand a payee to present his/her identity document and to leave his/her signature in the relevant column of a pay document.

Paragraphs 23 and 24 envisaged that all cash transactions should be registered in a single cash book kept by each company.

COMPLAINTS

In his initial submissions the applicant complained under Article 6 § 1 of the Convention about the unfairness and length of the proceedings. He also complained about a violation of Articles 3 and 10 of the Convention without any further specification.

Subsequently, in his submissions of 30 December 2006 the applicant complained under Article 1 of Protocol No. 1 on account of the outcome of the same proceedings .

THE LAW

I. Complaints about the unfairness of the proceedings

The applicant complained that the courts had relied exclusively on the submissions of the defendant company and disregarded the fact, that these submissions had not been supported by the relevant documents. He further complained that the courts had refused to consider his motion for an independent expert examination in the case.

Article 6 § 1 of the Convention reads, in so far as relevant, as follows:

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

The Government submitted that the applicant had had a fair hearing in h is case. H e was represented by a lawyer and could present all necessary arguments and evidence in defence of his interests.

The applicant contended that he had been put at a substantial disadvantage vis-à-vis the defendant company, as he had not been able to prove the alleged non-payment of money due to him and the company had refused to give the court copies of contracts concluded with the applicant ’ s assistance, which could have confirmed a part of his claims.

The Court reiterates that the assessment of evidence is a matter for the domestic courts and the Court shall not substitute its own view of the facts for an assessment which has been reached in the course of the domestic proceedings. Moreover, while Article 6 of the Convention guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see Dombo Beheer B.V. v. the Netherlands , judgment of 27 October 1993, Series A no. 274, p. 19, § 31).

Nevertheless, the Court must ascertain whether the proceedings as a whole were fair and whether the effects of domestic interpretation of facts and law were compatible with the Convention (see, for instance, Platakou v. Greece , no. 38460/97, § 37 , ECHR 2001 ‑ I ).

In this context, the Court recalls that that the principle of equality of arms – one of the elements of the broader concept of fair trial – requires that each party should be afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see Dombo Beheer B.V. , cited above, § 33; Ankerl v. Switzerland , judgment of 23 October 1996 , Reports of Judgments and Decisions 1996-V, pp. 1567-68, § 38).

T he Court notes that the applicant sought the recovery of debts before the domestic courts. His claims concerned several sums of money allegedly not paid by the defendant company. The courts rejected them for the following reasons. The first part of the applicant ’ s claims was rejected on the ground that the defendant company had provided copies of payment slips; the second part of the claims was held unsubstantiated on the basis of the witnesses ’ statements and because of the applicant ’ s failure to refute them by lodging documentary evidence; and their third part was dismissed, as the applicant had not submitted evidence that the defendant company had been under the obligation to pay him the money .

The Court finds no ground to doubt the fair manner in which the courts dealt with the applicant ’ s claims in applying the rule that it is for a debtor to submit documentary or other evidence to prove that it fulfilled a monetary obligation, provided that a creditor demonstrated that such an obligation existed.

While it is true that, as indicated by the Ukrainian monetary legislation (see Relevant Domestic Law above), a transfer of money can be best evidenced by bank documents, payment slips, or written confirmation of a creditor, the courts ’ reliance on oral evidence does not raise any problem from the point of view of a “fair trial” within the meaning of Article 6 § 1 of the Convention. In particular, the applicant and his lawyer attended the court hearings and were able to question the employees of the debtor company who had been heard as witnesses and to comment on their statements.

In so far as the applicant complained that the courts had refused to consider his motion for an independent expert examination in the case, the Court discerns no issues requiring in these circumstances the courts to order such an examination.

It follows that this part of the application must be rejected as manifestly ill-founded, in accordance with Article 3 5 §§ 3 and 4 of the Convention.

II. Complaint about the length of the proceedings

The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requir ement, provided in Article 6 § 1 of the Convention, the relevant provisions of which were cited above.

The Government maintained that the applicant had not exhausted the domestic remedies available to him , in that he had failed to appeal to the higher courts against the first instance court ’ s procedural decisions adjourning the proceedings. Also, the applicant failed to institute disciplinary proceedings against the first instance judge.

The Court does not find it necessary to deal with the Government ’ s objection as to the exhaustion of domestic remedies, as it considers that this part of the application is anyway inadmissible for the following reasons.

The Court observes that the overall duration of the proceedings before three levels of jurisdiction was arou nd five years . The period falling within the Court ’ s competence ratione temporis lasted around four years and eight months .

The Court reiterates that only delays attributable to the State may justify a finding of failure to comply with the “reasonable time” requirement (see Humen v. Poland [GC], no. 26614/95, § 66 , 15 October 1999 ).

The Court also recalls that, although a party to civil proceedings cannot be blamed for using the avenues available to him under domestic law in order to protect his interests, he must accept that such actions necessarily prolong the proceedings concerned (see Malicka-Wasowska v. Poland (dec.), no. 41413/98, 5 April 2001).

The Court notes that the applicant has contributed to the overall length by lodging motions for adjournment of the proceedings; by amending his original claim; and by contesting the judgment in his case before the higher courts. Furthermore, the applicant was absent from eleven out of thirty-five hearings before the first instance court.

Even assuming that that there were certain delays attributable to the judicial authorities, the Court considers that it was primarily the applicant ’ s behaviour that prolonged the proceedings in his case.

Accordingly, the Court rejects this part of the application as manifestly ill-founded pursuant to Article 35 § § 3 and 4 of the Convention.

II I . Alleged violation of Article 1 of Protocol No. 1

In his submissions of 30 December 2006 the applicant further complained under Article 1 of Protocol No. 1 that he had been unlawfully deprived of her possessions on account of the outcome of the proceedings in his case.

The Court notes that the final domestic decision in the applicant ’ s case within the meaning of Article 35 § 1 of the Convention had been given by the Supreme Court on 22 May 2002 and thus more than six months before the date on which this complaint was submitted to the Court ( 30 December 2006 ). Thus , this part of the application has been submitted too late and the Court reject s it in accordance with Article 35 §§ 1 and 4 of the Convention.

I V . OTHER ALLEGED VIOLATIONS OF THE CONVENTION

Lastly, the applicant complained about a violation of Articles 3 and 10 of the Convention without any further specification. The Court finds that this part of the application is manifestly ill-founded and rejects it pursuant to Article 35 § § 3 and 4 of the Convention .

V . Article 29 § 3

In view of the Court ’ s above findings , it is appropriate to discontinue the application of Article 29 § 3 of the Convention .

For these reasons, the Court by a majority

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . Around 27 euros – “EUR”.

[2] . Around EUR 102.