CASE OF MALA v. UKRAINE
Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing)
Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger
5. The applicant was born in 1968 and lives in Zaporizhzhya. 6. On 4 January 1994 the Leninskyy District Court of Zaporizhzhya ordered the applicant’s former husband, S., to pay her child maintenance in respect of their daughter, who was living with the applicant. 7. According to a bailiff’s report of 24 January 2006, the outstanding arrears to the applicant at that date were 7,546 Ukrainian hryvnias ((UAH), at the time equivalent to about 1,200 euros (EUR)), of which UAH 2,052 (about EUR 330) was owed for 2005. The bailiff’s calculations were based on the average salary indicators in the district where S. lived, since he had been unemployed at the time. 8. On 1 April 2006 the same bailiff issued a fresh report, assessing the total amount of the arrears at 31 March 2006 at UAH 667.50. The sum owed for 2005 was assessed at UAH 480. The bailiff recalculated the earlier established amount on the basis of a tax return submitted by the applicant’s ex-husband for the last quarter of 2005, which showed that he had earned UAH 3,000 for that period. Viewed as his actual earnings for the whole year, that amount was lower than the average salary, which would have otherwise been taken as a basis for the arrears’ calculation. 9. On 4 April 2006 the report of 1 April 2006 was served on the applicant, who had ten days to challenge it. 10. On 11 April 2006 the applicant sought to challenge the accuracy of the report before the Khortytskyy District Court of Zaporizhzhya (“the Khortytskyy Court”). 11. On 24 May 2006 the Khortytskyy Court allowed her application and invalidated the impugned report as erroneous. It concluded that the bailiff had had no reasons to depart from the earlier calculation, since the tax return submitted by S. concerned only the last quarter of 2005. In the absence of any appeal, the ruling became final. 12. On 6 June 2006 the bailiff issued another report, according to which the outstanding child maintenance arrears owed to the applicant at that date were UAH 7,671 Ukrainian hryvnias, of which UAH 2,358 was owed for 2005. 13. On 29 June 2006 the bailiff reassessed the arrears owed by S. to the applicant, concluding that they were UAH 6,606 at 1 June 2006 (as S. had made some payments during that year), of which UAH 2,358 was owed for 2005. 14. On 19 October 2006 the Bailiffs’ Service terminated the child maintenance enforcement proceedings because on 2 October of that year the applicant’s daughter had reached the age of majority. The bailiff assessed the outstanding arrears at 2 October 2006 at UAH 8,637.32 (equivalent to about EUR 1,300 at that time); the sum owed for 2005 remained unchanged (UAH 2,358, equivalent to about EUR 330). Neither the applicant nor her former husband challenged this assessment. 15. On 26 January 2006 the applicant lodged a civil claim against S. for penalties to be imposed on him for late child maintenance payments. She relied on the bailiff’s report of 24 January 2006 (see paragraph 7 above). 16. On 16 March 2006 the court adjourned its hearing on the applicant’s request with a view to summoning the bailiff who had issued the aforementioned report. S. did not object to that, but submitted that he had requested recalculation of the arrears owed to the applicant. 17. On 3 April 2006 the Khortytskyy Court allowed the applicant’s claim in part and awarded her UAH 141.58 (about EUR 22) in penalties to be paid by her former husband. It based its calculation, in so far as the arrears for 2005 were concerned, on the bailiff’s report of 1 April 2006 (see paragraph 8 above), which had been presented by the bailiff at the hearing on 3 April 2006. Having regard to the bailiff’s explanations as to the reasons for the recalculation, the court held that the aforementioned report took precedence over the report of 24 January 2006 relied on by the applicant. According to the minutes of the hearing, the applicant did not object to the completion of the examination of the case on the merits, but insisted that the court should rely on the report adduced by her. 18. On 12 April 2006 the applicant appealed, claiming that the court had wrongly relied on the report of 1 April 2006, which she had only become aware of on 3 April, the day the court had given judgment. She further pointed out that the report in question had not been formally served on her until the following day (4 April 2006) and that she had challenged it in accordance with the established procedure (see paragraphs 9 and 10 above). 19. On 23 May 2006 the Zaporizhzhya Regional Court of Appeal (“the Court of Appeal”) upheld the Khortytskyy Court’s decision of 3 April 2006. It held, without giving further details, that the first-instance court had rightly relied on the bailiff’s report of 1 April 2006. 20. The applicant appealed in cassation for the decisions of 3 April and 23 May 2006 to be quashed and a fresh examination of the case to be carried out. She complained that the courts had disregarded, without any explanation, the key piece of evidence adduced by her – the bailiff’s report of 24 January 2006. It had not been challenged by any of the parties and was final. She reiterated the arguments of her appeal as regards the bailiff’s report of 1 April 2006 (see paragraph 18 above), pointing out that her complaint about that report had been successful and that it had been invalidated on 24 May 2006. 21. On 21 November 2006 the Supreme Court, sitting in a single-judge formation, rejected her request for leave to appeal in cassation. Its reasoning was limited to a statement that the cassation appeal was unfounded, and that its arguments did not warrant any verification of the case file materials in accordance with Article 328 § 3 of the Code of Civil Procedure (see paragraph 29 below). 22. On 21 November 2006 the applicant lodged with the Khortytskyy Court a civil claim against her former husband, seeking recovery of the child maintenance arrears as assessed by the bailiff on 19 October 2006 (see paragraph 14 above), with an inflationary adjustment and additional penalties. 23. On 22 January 2007 the court found against the applicant. It held that the Bailiffs’ Service had already determined the outstanding arrears S. had to pay (UAH 8,637.32 – see paragraph 14 above), and that the applicant was not entitled to any further indexation or penalties. 24. Following an appeal by the applicant, on 26 April 2007 the Court of Appeal quashed that decision and ordered the applicant’s former husband to pay her UAH 4,964 in arrears (equivalent to about EUR 740). As regards the arrears owed for 2005, it relied on the Khortytskyy Court’s decision of 3 April 2006 based on the bailiff’s report of 1 April 2006 (see paragraphs 8 and 17 above). 25. The applicant appealed in cassation. She argued that the final amount of outstanding child maintenance arrears owed to her by S. at 2 October 2006 was UAH 8,637.32 (equivalent to about EUR 1,290). The applicant emphasised that none of the parties had ever challenged the accuracy of that calculation. The appellate court had nevertheless chosen to rely on the bailiff’s earlier report of 1 April 2006, which had been invalidated by the Khortytskyy Court on 24 May 2006 after she complained. 26. On 19 July 2007 the Supreme Court, sitting in a single-judge formation, rejected her request for leave to appeal in cassation. Its reasoning was identical to that given in the ruling of 21 November 2006 (see paragraph 21 above). 27. On 28 April 2006 the applicant lodged a civil claim with the Khortytskyy Court, seeking an increase of the child maintenance to be paid by her former husband from that date onwards. 28. On 20 June 2006 the court allowed her claim in part and assessed the amount of monthly child maintenance at UAH 165, to be paid from 3 May until 2 October of that year, the date their daughter reached the age of majority. No appeal was lodged and the decision became final.