MELNYK v. UKRAINE
Inadmissible
Peer Lorenzen
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 Agents, Mr Y. Zaytsev and Mrs I. Shevchuk. 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. Out 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 (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, 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. According to Article 29 of the Code, 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 to reject an appeal; 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; to quash the judgment of the first instance court and to discontinue the proceedings; 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 if the case had been considered by a person, who had not been entitled to sit as a judge in the case; if the judgment had been adopted or singed by a judge who had not heard the case; 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 if the judgment concerned the rights and obligations of persons who had not participated in the case. 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.