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FIFTH SECTION

Application no. 4436/07
Anzhela Volodymyrivna MALA
against Ukraine
lodged on 4 January 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Anzhela Volodymyrivna Mala, is a Ukrainian national who was born in 1968 and lives in Zaporizhzhya.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Background

On 4 January 1994 the Leninskyy District Court of Zaporizhzhya ordered the applicant’s former husband to pay her child maintenance in respect of their daughter, who was living with the applicant.

According to a bailiff’s report of 24 January 2006, the outstanding arrears of child maintenance due to the applicant as of that date were 7,546 Ukrainian hryvnias (UAH).

On 1 April 2006 the Bailiffs’ Service issued a fresh report establishing the sum owed, as of 31 March 2006, at UAH 667.50.

The applicant challenged the accuracy of that calculation before the Khortytskyy District Court of Zaporizhzhya (“the Khortytskyy Court”).

On 24 May 2006 the Khortytskyy Court allowed her claim and invalidated the aforementioned bailiff’s report as erroneous. In the absence of any appeal, this ruling became final.

On 19 October 2006 the Bailiffs’ Service terminated the child maintenance enforcement proceedings because the applicant’s daughter had reached the age of majority on 2 October 2006. The Bailiffs’ Service also established that the outstanding arrears, as of 2 October 2006, were UAH 8,637.32. None of the parties challenged this assessment.

2.  First set of proceedings

On 26 January 2006 the applicant lodged a civil claim against her former husband seeking recovery of penalties for late child maintenance payments.

On 3 April 2006 the Khortytskyy Court allowed the applicant’s claim in part. Having based its calculations on the bailiff’s report of 1 April 2006 (instead of that of 24 January 2006 cited by the applicant), it awarded the applicant UAH 141.58 in penalties to be paid by her former husband.

The applicant appealed, submitting that she had challenged the bailiff’s report on which the court had relied and that the report was therefore not yet final.

On 23 May 2006 the Zaporizhzhya Regional Court of Appeal upheld the ruling of the Khortytskyy Court of 3 April 2006.

The applicant appealed in cassation. She noted that the bailiff’s report of 1 April 2006 on which the courts relied had, in the meantime, been quashed as invalid on 24 May 2006.

On 21 November 2006 the Supreme Court rejected her request for leave to appeal in cassation, merely stating that it was unsubstantiated.

3.  Second set of proceedings

On 21 November 2006 the applicant lodged a civil claim with the Khortytskyy Court, seeking recovery of the child maintenance arrears as established by the bailiff on 19 October 2006, with inflation adjustment and some additional penalties.

On 22 January 2007 the court found against the applicant. It held that the Bailiffs’ Service had already determined the outstanding arrears and that the applicant was not entitled to any further indexation or penalties.

Following an appeal by the applicant, on 26 April 2007 the Regional Court of Appeal quashed the impugned decision and delivered a new one ordering the applicant’s former husband to repay her UAH 4,964 in arrears. The court relied, in particular, on the bailiff’s report of 1 April 2006 defining the outstanding debt as of that date.

The applicant appealed in cassation. She argued that the final amount of the outstanding child maintenance arrears owed to her by her former husband as of 2 October 2006 was UAH 8,637.32. The applicant emphasised that none of the parties had ever challenged the accuracy of that calculation. However, the appellate court had wrongly chosen to rely on the earlier bailiffs’ report of 1 April 2006 which had been invalidated by the Khortytskyy Court on 24 May 2006 following the applicant’s complaint.

On 19 July 2007 the Supreme Court rejected the applicant’s request for leave to appeal in cassation as unsubstantiated, without providing further detail.

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention of the alleged unfairness of both sets of proceedings. She submits that the domestic courts relied, in an arbitrary manner and in complete disregard of her arguments, on the bailiff’s report of 1 April 2006 as the key piece of evidence, even though it had been invalidated by the time the proceedings were completed (the first set) or even initiated (the second set).

QUESTIONS TO THE PARTIES

Did the applicant have a fair hearing in the determination of her civil rights and obligations in both sets of proceedings, in accordance with Article 6 § 1 of the Convention?

In particular, was the examination of the claims by the domestic courts proper (see Dulaurans v. France, no. 34553/97, § 33, 21 March 2000; Pronina v. Ukraine, no. 63566/00, § 25, 18 July 2006; and Gheorghe v. Romania, no. 19215/04, § 43, 15 March 2007)?