SHYTIK v. UKRAINE
Inadmissible
Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva
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. 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.