FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 26345/02 by Liliya Nikolayevna ANISINA against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 18 September 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 , Mr M. Villiger, judges , and Mrs C. Westerdiek , Section Registrar .

Having regard to the above application lodged on 2 June 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, Ms Liliya Nikolayevna Anisina, is a Ukrainian national who was born in 1952 and lives in Mak yiy vka . The Ukrainian Government (“the Government”) were represented by their Agent s , Mrs I. Shevchuk and Mr Y. Zaytsev .

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1952 and lives in Mak yiy vka.

In April 2001 she instituted proceedings in the Sovetskyy District Court of Makyiyvka against Mr M., seeking recovery of a debt and compensation for non-pecuniary damage. The applicant submitted that on 10 June 2000 Mr M. had borrowed USD 3,000 [1] from her, which he had undertaken to give back in two months. In September 2000 the applicant asked him to return the money, but Mr M. refused.

In the course of the proceedings, Mr M. confirmed that he had received the money from the applicant. He however stated that the applicant had given him the money for the use in commercial transactions under the condition that he would pay her 60% of his monthly income. Mr M. further stated that by November 2000 he had given the full amount back to the applicant.

On 9 July 2001 the court ruled in part for the applicant. It found that the parties had reached an oral agreement on the money loan, which was evidenced by their submissions before the court. The court also noted that in 2000 Mr M. had made similar written submissions to the police, confirming that he had taken the money from the applicant for the use in his commercial transactions.

The court further found that the submissions of Mr M. that he had paid back the money were unsubstantiated, as they were not supported by any documentary evidence.

It ordered Mr M. to pay the applicant the equivalent of USD 3,000 in the Ukrainian national currency (hryvnya) [2] . The court also awarded her UAH 2,000 [3] in compensation for non-pecuniary damage.

Mr M. appealed, alleging that the first instance court had erred in establishing the facts of the case. In particular, he stated that, since the court had found that there had been a debt without having any documentary evidence before it, it should not have rejected his submissions that the debt had been paid in full.

On 20 September 2001 the Donetsk Regional Court of Appeal (the Donetsk Court ) quashed the judgment of 9 July 2001. It held, referring to Article 375 of the Civil Code of 1963, that Mr M. should not have been required to provide documentary evidence to establish that he had fulfilled the obligation deriving from the contract which had been concluded orally. Such a requirement existed in respect of written contracts. Since the applicant failed to provide any documentary evidence to demonstrate that there was an outstanding debt, which was contested by Mr M., her claim for the recovery of that debt was rejected as unsubstantiated.

By the same judgment, the court of appeal ordered the applicant to pay the State the court fee of UAH 181.40 [4] .

The applicant appealed in cassation, alleging that the judgment of the Donetsk Court was arbitrary. On 11 January 2002 the panel of three judges of the Supreme Court rejected the applicant ’ s appeal, finding that the judgment of the court of appeal was lawful.

On 28 March 2002 the Donetsk Court adopted a supplementary decision, by which it rejected the applicant ’ s claim for compensation for non-pecuniary damage as unsubstantiated. The applicant did not appeal in cassation against that decision, as, according to her, it was not to be appealed under Ukrainian law.

II. RELEVANT DOMESTIC LAW

A. Civil Code of 1963 (repealed as of 1 January 200 4 )

The relevant provisions of the Code read as follows:

Article 44 . Written contracts

“ [The following] should be concluded in writing:

2) agreements between citizens concerning a sum of more than 100 karbovantsiv[ [5] ]...

3) other agreements between citizens which the law requires to be concluded in a written form...”

Article 46 . Consequences of the [parties ’ ] failure to observe [the requirement] of written form

“ The parties shall have no right to refer to witnesses ’ statements to prove the existence of a contract in case of a dispute, if that contract was not put in writing, which was required by the law[. In] cases specifically mentioned in the law, [the failure to observe the requirement of written form] entails the nullity of a contract...”

Article 374 . Contract of loan

“ Pursuant to a contract of loan, a party (the lender) gives [a sum of] money ... to another party (the debtor), and the debtor undertakes to return the same sum of money...

A contract of loan shall be considered as concluded at the time of the money transfer...

Article 375 . Form of a contract of loan

“ A contract of loan for more than 100 karbovantsiv shall be concluded in writing.”

Article 376 . Denial of a contract of loan

“ A debtor has a right to deny a contract of loan ... by proving that the money ... was not in fact received by him ... or that [he] received less money than mentioned in the contract.

If a contract of loan must be concluded in writing (Article 375 of this Code), [the parties] are not allowed to deny [that the money were transferred or received] on the basis of witnesses ’ statements, except if the matter involves an act punishable under criminal law.”

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

The relevant provisions of the Code read as follows:

Article 29 . Admissibility of evidence

“ The circumstances of the case, which according to the law must be established by specific evidence, shall not be established by any other evidence.”

Article 214 . Supplementary decision

“ The court, who delivered a judgment [in the case], may, upon an application of persons who take part in the case or upon its own motion, adopt a supplementary decision in [the following] cases:

1) if any of the claims, concerning which the parties submitted evidence and observations, was not adjudicated;

...

The question concerning [possible] adoption of a supplementary decision may be raised within ten days of the date of the judgment.

The court adopts a supplementary decision after the question was considered in a hearing to which the parties were summoned.

An appeal may be lodged against a supplementary decision within ten days following its adoption...”

C . Resolution no. 9 of the Plenary Supreme Court of 21 December 199 0 concerning application of procedural legislation by courts of first instance in civil cases

The relevant extracts from paragraph 8 of the Resolution read as follows:

“ ... According to Article 29 of [the Code of Civil Procedure] the existence of legal relations, concerning which there is a requirement of written form (Article 46 of [the Civil Code]), may not be established on the basis of witnesses ’ statements.

At the same time, the fact that such a contract was executed can be established on the basis of any evidence ..., including witnesses ’ statements.”

COMPLAINTS

In her initial submissions t he applicant complained under Article 6 § 1 of the Convention about the unfairness of the proceedings, alleging that the judgment of the Donetsk Court of 20 September 2001 had been manifestly unreasonable and arbitrary.

Subsequently, in her submissions of 6 February 2006 the applicant complained under the same provision of the Convention about a violation of the principle of legal certainty because of the fact that the Donetsk Court had delivered a supplementary decision on 28 March 2002, after the Supreme Court had already adopted the final decision in the case (11 January 2002) and the proceedings had been completed.

THE LAW

The applicant complained about a violation of Article 6 § 1 of the Convention, which read, in so far as relevant, as follows:

Article 6 § 1

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

I. the initial complaint

In their observations on the complaint about the proceedings before the Donetsk Court in September 2001, t he Government stated that the applicant had had a fair hearing in her case and the final conclusions reached by the courts had been based on a correct assessment of evidence before them.

The applicant contended that in rejecting her claims the Donetsk Court had relied exclusively on the submissions of the defendant and disregarded the fact that these submissions had not been supported by any documents. Thus, the proceedings were not fair, as the applicant could not effectively defend her rights and interests before that court or the Supreme Court.

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 o f 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, Series A no. 274, p. 19, § 33; Ankerl v. Switzerland , judgment of 23 October 1996 , Reports of Judgments and Decisions 1996-V, pp. 1567-68, § 38).

Turning back to the circumstances of the present case, the Court observes that it concerned the alleged non-fulfilment of a contractual obligation. As it was established by the domestic courts, one of the parties to the dispute, the applicant, had given a sum of money to the opposite party, Mr M., the latter having been obliged to return it to the applicant. This was not disputed by the parties. However, they disagreed as to whether the sum of money had been actually paid back. Thus, the courts had to determine that specific issue.

The first instance court ruled for the applicant, finding that her opponent had not provided any proof that he had paid the money back. The Donetsk Court , hearing the case on appeal, disagreed with the first instance court. Considering the applicant ’ s failure to meet the statutory obligation of a written contract, the former found that it was for the applicant to provide evidence that there was an outstanding debt.

The Court notes that a transfer of money can be evidenced by bank documents, payment slips, or written confirmation of a creditor, which a debtor should keep in order to prove that the transfer actually took place. In principle, it would be for a debtor to submit documentary or other evidence to prove that he or she fulfilled a monetary obligation, provided that a creditor demonstrated that such an obligation exited.

However, in the present case the dispute concerned a money loan, in respect of which the parties had not observed the statutory requirement of a written form of the contract. Under Ukrainian law the non-observance of that requirement prevented them from using certain means of proving the contract ’ s existence, namely, they could not refer to witnesses ’ statements on the matter.

The Court finds that in these circumstances the Donetsk Court ’ s conclusion that it was for the applicant to prove that the debt was still outstanding was a matter of application of domestic law, which does not disclose any appearance of unfairness or arbitrariness within the meaning of Article 6 § 1 of the Convention.

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.

I I. the complaint lodged in 2006

As regards the applicant ’ s complaint directed against the decision of the Donetsk Court of 28 March 2002, t he Court notes that according to Article 214 of the Code of Civil Procedure the applicant had a right to appeal in cassation to the Supreme Court against that decision (see Relevant Domestic Law). She however failed to do so and provided no reasonable explanation for not raising her complaints before the higher domestic court. Thus, the applicant has not exhausted the domestic remedies available to her under Ukrainian law. Even assuming that there was no remedy available to her, the applicant failed to raise this complaint within the period of six months from the date of the decision of 28 March 2002. Accordingly, the Court rejects this part of the application pursuant to Article 35 §§ 1 and 4 of the Convention.

II I. 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 reaso ns, the Court unanimously

Declares the application inadmissible.

Claudia Westerdiek Peer Lorenzen Registrar President

[1] . Around 3,500 euros – “EUR”.

[2] . UAH 16,000 (around EUR 3,500).

[3] . Around EUR 439.

[4] . Around EUR 37.

[5] . T he former transitional currency of Ukraine before September 1996 .