The application to the European Court of Human Rights was issued on March 18th, 2020 within the 6 months period from the last national decision. The application was based on violations of article 6 of the Convention and article 1 of the first Protocol to the Convention.

Having regulations on admissibility and relevant guidelines (attached document version April 2020, so after the application, version valid on the date of application no longer visible on the courts web-site) as well as the guide on fair trials from the court in mind, the application was carefully created to argue along the admissibility criteria.

Nonetheless the application was declared inadmissible by a single judge decision, which I think is not only in contrast to the admissibility regulations, but violates article 27 of the Convention, which regulates the competence of single judges regarding inadmissibility decisions.

How, given the content of the application outlined in the following, “such decision can be taken without further examination” and not be completely arbitrary, is rather hard to understand. Unfortunately the “reasons” given in

do not really solve that question.

Violations of the right to a fair trial in court of first instance

On page 5 of the application is outlined the trial before Odessa trade court and it’s deficiencies. It is pointed to the fact, that arguments essential to the decision of the case have not been taken into account and are not covered in the reasoning of the court. The court decided that the goods have not been delivered, even though such claim had not even been formulated by the buyer (at least in the official proceedings) and does not take our argument into account, that the fact that the buyer wanted to transport the goods from the negotiated place of delivery is an important indication that the buyer actually did receive the goods. Furthermore on that page of the application are outlined violations of the regulations on trade courts related to the adversarial principle and obligation to provide reasons for the decision. Furthermore it is argued that the court took a position in the interest of the “opposing party”, even though that party never took part in the procedure, which in a known corrupt court system may question the indepence of the court.

The Court is publishing a Guide on Article 6 of the European Conventionon Human Rights “Right to a fair trial” and it might be expected that admissibility decisions on applications relating to the right to a fair trial are made in line with the content of this guide – however that obviously is not the case.

On page 57 of the guide are mentioned principles, stating among others “283.An effective right: the parties to the proceedings have the right to present the observations which they regard as relevant to their case. This right can only be seen to be effective if the observations are actually “heard”, that is to say duly considered by the trial court (Donadzev.Georgia, §35). In other words, the “tribunal” has a duty to conduct a proper examination of the submissions, arguments and evidence adduced by the parties (Kraska v.Switzerland, §30; Van de Hurk v.the Netherlands, §59; Perez v.France[GC], §80).” As outlined in the application, the argument in the proceedings in the national court, that the buyer intended to take away the goods from the place of delivery and that this confirms the fact that he received the delivered goods, is neither considered in the decision nor mentioned in the reasoning of the national court, this indicates that the arguments have not been “heard” (duly considered) according to above interpretation in the guide. Furthermore that argument in the national proceedings is to be considered essential to the decision of the national court, the court could not have taken the decision if that argument had been considered.

Page 68 of the guide holds “340.The adversarial principle: the concept of a fair trial comprises the fundamental right to adversarial proceedings. This is closely linked to the principle of equality of arms.” If, as outlined in our application, the other side does not take part in the procedure before the court at all, but the court itself is constructing/inventing a far-fetched reasoning in the interest of the other side and there is no possibility to argue on that reasoning, as it is delivered only in the written court decision, that can obviously not be considered implementing the right to adversarial proceedings.

On page 74 on requirements to reasoning of the decision for a trial to be considered “fair” is included

“373.The extent to which this duty to give reasons applies may vary according to the nature of the decision (Ruiz Torija v.Spain, §29; Hiro Balani v.Spain, §27) and can only be determined in the light of the circumstances of the case: it is necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments (Ruiz Torija v.Spain, §29; Hiro Balani v.Spain, §27).
374.However, where a party’s submission is decisive for the outcome of the proceedings, it requires a specific and express reply(Ruiz Torija v.Spain, §30; Hiro Balani v.Spain, §28).”

With the argument, that the fact that the buyer intended to take away the goods from the place of delivery, was not included in the reasoning of the decision of the national court quite obviously the demands to reasoning for a trial to be considered fair have not been fulfilled. As far as the content of P 373 of the guide relates to the circumstances of the case, the Ukrainian “Trade Proceedings Kodex” holds the requirement:

“Стаття 236. Законність і обґрунтованість судового рішення
1. Судове рішення повинно ґрунтуватися на засадах верховенства права, бути законним і обґрунтованим.
2. Законним є рішення, ухвалене судом відповідно до норм матеріального права при дотриманні норм процесуального права.
…
5. Обґрунтованим є рішення, ухвалене на підставі повно і всебічно з’ясованих обставин, на які сторони посилаються як на підставу своїх вимог і заперечень, підтверджених тими доказами, які були досліджені в судовому засіданні, з наданням оцінки всім аргументам учасників справи.”

As not all readers may be fluent in Ukrainian language here is a translation:

“Article 236. Legality and Foundedness of a court decision
1. A court decision must be based on the rule of law, be lawful and reasonably justified.
2. A decision is lawful, if it is decided by the court according to norms of material right while norms of procedural right are kept.
…
5. A decision is well-founded, if it is decided on the base of fully and comprehensively clarified circumstances, to which the parties refer as the basis of their claims and objections, supported by the evidence examined at the hearing, with an assessment of all the arguments of the parties.”

So obviously the demands for a decision to be well-founded are very high in Ukrainian legislation and that has to be considered when a decision of the ECtHR on foundedness (or ill-foundedness) as base for an admissibility decision is made.

Violations of the right to a fair trial in appeal court

On page 6 of the application we point to the fact that in the proceedings before the appeal court we issued a request to the court to request evidence on contractual relations between the buyer of our products and the company operating the grain store at the place of delivery according to the contract, as this relation is a major proof of the fact that the reception of the goods at the grain store was made in the name of the buyer. However the court refused to request this proof violating national law on trade court rulings and such violates the obligation to thoroughly analyze the case and found the court decision.

The Ukrainian “Trade Proceedings Kodex” foresees such procedure

“Стаття 81. Витребування доказів
1. Учасник справи у разі неможливості самостійно надати докази вправі подати клопотання про витребування доказів судом. Таке клопотання повинно бути подане в строк, зазначений в частинах другій та третій статті 80 цього Кодексу. Якщо таке клопотання заявлено з пропуском встановленого строку, суд залишає його без задоволення, крім випадку, коли особа, яка його подає, обґрунтує неможливість його подання у встановлений строк з причин, що не залежали від неї.”

Furthermore we argue that the fact that the opposite party did not take part in the court proceedings and the position taken by the court was not presented during the hearings and thus could not be argued by us violates the right on adversarial proceedings.

Furtheron in page 7 of the application is outlined that we did not receive payment for the sold goods as foreseen by the contract and that damages our right on property and that that is a consequence of the non-fair trial.

With above highlighted facts in the application evidence of the violation on the Convention and Protocol is given, which makes rather hard to understand how the Court by decision of a single judge may find that the material in the possession of the Court “do not disclose any appearance of a violation of the rights and freedoms set out in the convention or the protocols”

The condition according to article 27 of the Convention “where such a decision can be taken without further examination” is not fufilled, at least if such decision is qualified according to the standard the court should apply to the requirements of a fair trial on the national level. It should be expected that the ECtHR is not setting lower standards for it’s own decisions than those it claims as base for a fair trial on the national courts in it’s own rulings.