JOINT DIS SENTING OPINION OF JUDGES POWER ‑ FORDE, YUDKIVSKA AND JÄDERBLOM

We are unable to share the majority ’ s conclusion that Article 6 § 1 was violated in the present case.

The applicant lodged a claim against her ex-husband for penalties for late child maintenance payments. Her calculation was based on the bailiff ’ s report valid at the relevant time (paragraph 7). During the court hearing the bailiff called by the applicant appeared with a new report, calculated on the basis of new information submitted by the defendant. There is nothing to suggest that in the course of the proceedings the applicant was unable to challenge the report or to submit any relevant data. The judge heard both parties and bailiff responsible for the calculation, assessed the information at hand and gave his judgment; and as with the majority, we see no reason to blame the first instance court. However, the majority criticised the Court of Appeal for a failure to address, specifically, the applicant ’ s submission that the bailiff ’ s report, which served as the basis for the first instance court ’ s judgment, was challenged by the applicants in separate proceedings. According to the majority, this failure amounts to the breach of the proper administration of justice principles established in the Court ’ s case-law (paragraph 54). We cannot subscribe to this conclusion. The role of the Court of Appeal is to correct errors that occurred at the first instance court, to check if the latter properly applied law to the facts before it. It can, of course, take into account new facts; but the decision on the applicant ’ s complaint against the bailiff ’ s report was taken on 24 May 2006, whereas the Court of Appeal delivered its judgment one day earlier, on 23 May 2006 (paragraphs 11 and 19). The Court of Appeal thus did not have sufficient grounds (a new fact) at the relevant time to quash the first instance judgment for being erroneous factually or procedurally flawed.

The majority ’ s conclusion in paragraph 52 that it is up to the national courts to assess evidence before them is equally pertinent to the appeal court ’ s decision, since the impugned bailiff ’ s report was only one aspect of the evidence before it, together with the bailiff ’ s explanations and the statements made by the parties. Criticising the Court of Appeal for a failure to address one of the applicant ’ s argument, albeit an important one, may be interpreted as going beyond this Court ’ s competence and acting as a “ fourth instance” court, in circumstances where the decision does not appear to be arbitrary in the sense of having a complete lack of reasoning.

Further, the Supreme Court, altho ugh aware of the decision of 24 May 2006 could not, as it follows from Article 335 of the Code of Civil Procedure (see paragraph 29), establish facts which were not established in the lower courts ’ decisions and quash them based on new facts. Thus it remains unclear how the Supreme Court could be expected to address the decision of 24 May 2006 (see paragraph 56). The role of the Supreme Court is very limited with respect to new facts.

Although the applicant is, understandably, unhappy about the outcome of the proceedings, we consider that even in this unfortunate sequence of events she was, nevertheless, in a position to protect her rights – she could, for instance, institute proceedings against the bailiff challenging termination of the enforcement proceedings (paragraph 14).

Finally, we would question whether the applicant has suffered any significant disadvantage with respect to the outcome of the first set of proceedings. We note that the courts imposed penalties of appro ximately 22 euros on the defendant for a debt of UAH 480 for 2005 calculated on the basis of the “wrong” bailiff ’ s report (paragraphs 8 and 17). Had the court considered the debt for 2005, as the applicant insisted, to be UAH 2,052, a simple calculation shows that the sum of pe nalties would have been only 72 euros more.

In sum, we consider that given the understandable omission of the Court of Appeal and the ­ amount of money which was at stake in the impugned proceedings, respect for human rights did not require the Court to examine this case on the merits and to find a violation of Article 6 § 1 of the Convention.

[1] . Rectified on 7 October 2014 : the text was ” the bailiff’s report of 24 May 2006”