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The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

Bo&scaron;tjan M. Zupančič, President, Ann Power-Forde, Angelika Nußberger, judges, and Stephen Phillips , Deputy Section Registrar ,

The case originated in an application (no. 2217/07) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian company, Firma Veritas, TOV (“the applicant company”), on 29 November 2006.

The applicant company was represented by Mr Valeriy Andrusenko, a lawyer practising in Dnipropetrovsk. The Ukrainian Government (“the Government”) were represented by their Agents, Mr Nazar Kulchytskyy and Ms Valeria Lutkovska, of the Ministry of Justice.

On 21 March 2011 the application was communicated to the Government. In accordance with Protocol No. 14, the application was allocated to a Committee of three Judges.

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On 10 April 2008 the Supreme Court opened the cassation proceedings. On 13 May 2008 it quashed the decisions of 19 September 2007 and 13 February 2008 on the grounds that the courts’ findings had been unfounded and erroneous, and upheld the judgment of 30 May 2007. It stated, in particular, as follows:

“Pursuant to the provisions of Articles 6 and 8 of the Constitution of Ukraine, ... the Supreme Court does not consider it necessary to remit the case for fresh consideration to the first-instance court, because that would contradict Articles 125 and 129 of the Constitution of Ukraine, Sections 2 and 39 of the Judiciary Act governing the status of the Supreme Court and its tasks of ensuring the legitimacy in the administration of justice, and would entail quashing of the legitimate judgment of 30 May 2007, which would be contrary to the Constitution. Thus, the list of the consequences of the examination of an appeal in cassation against a decision of the Higher Commercial Court, as envisaged by Article 111-18 of the Code of Commercial Procedure, is not a procedural impediment to the upholding by ... the Supreme Court of the judgment ... of 30 May 2007”.

The applicant company states that prior to the hearing of 13 May 2008 it requested the Supreme Court to conduct audio-recording of that hearing and sought the withdrawal of some of its judges, but its requests were not examined.

B. The second set of proceedings

In June 2005 the applicant company lodged another claim with the Commercial Court against company E. for the recovery of debts owed for legal services.

On 22 August 2005 the above court allowed the claim. On 17 October 2005 the Court of Appeal partly amended the above judgment. On 7 February 2006 the Higher Commercial Court upheld the latter decision. On 30 May 2006 the Supreme Court quashed the above decisions and remitted the case for fresh consideration.

The hearing of 30 May 2006 took place in the presence of company E.’s representatives and in the absence of the applicant company’s representative, who allegedly had not been informed thereof. The applicant company states that prior to the hearing of 30 May 2006 company E. sent a letter to the Supreme Court asking it to consider the case “with special attention”.

Following the reconsideration of the case, on 13 December 2007 the Commercial Court delivered a judgment having allowed the claim in part. On 1 October 2008 the Court of Appeal quashed that judgment and rejected the claim as unsubstantiated. On 23 February 2009 the Higher Commercial Court upheld the latter decision.

C. The third set of proceedings

In June 2005 the applicant company lodged yet another claim with the Commercial Court against company E. for the recovery of debts owed for legal services.

On 12 December 2005 the above court delivered a judgment. On 7 June 2006 the Higher Commercial Court quashed it and remitted the case for fresh consideration.

On 29 November 2011 the applicant company informed that, following the reconsideration of the case, its claim had eventually been allowed in part, the final decision having been given by the Higher Commercial Court on 15 October 2008.

II. RELEVANT DOMESTIC LAW

The relevant domestic law is summarized in the cases of Sokurenko and Strygun v. Ukraine (nos. 29458/04 and 29465/04, §§ 10-12, 20 July 2006) and Bazalt Impex, Tov v. Ukraine (no. 39051/07, §§ 10-12, 1 December 2011).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicant company complained that in the first set of proceedings the Supreme Court was not “a tribunal established by law”, as it exceeded its competence in upholding the judgment of 30 May 2007 after quashing the decisions of 19 September 2007 and 13 February 2008. It relied on Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

A. Admissibility

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

The Government admitted that, by quashing the decisions of the Court of Appeal and the Higher Commercial Court and by upholding the judgment of the Commercial Court, the Supreme Court had exceeded its competence as envisaged by Article 111-18 of the Code of Commercial Procedure and had acted contrary to that provision. However, they considered that the principle of the rule of law, enshrined in Article 8 of the Constitution and the tasks entrusted to the Supreme Court under Section 2 of the Judiciary Act required the exceptional course of action taken by the Supreme Court in the present case. The Government referred to the Sokurenko and Strygun case, where the Court had acknowledged that in exceptional circumstances the highest judicial body competent to interpret the law could take a decision which was not strictly provided by the law. They further reiterated the reasoning given by the Supreme Court in its decision of 13 May 2008. Finally, the Government observed that the relevant domestic legislation had been changed in July 2010 and that the Supreme Court was no longer competent to review the commercial cases as a second-instance court of cassation, this fact having rectified the situation and dispensed the State of liability.

25. The applicant company considered that there had been no exceptional circumstances in the present case which would warrant the Supreme Court’s deviation from the provisions of the Code of Commercial Procedure, stating that after the delivery by the Court of its judgment in the Sokurenko and Strygun case, the Supreme Court had continued its practice until July 2010, when the relevant legislation had been changed.

The Court recalls that in the case of Sokurenko and Strygun it noted that the Supreme Court’s competence under the Code of Commercial Procedure was limited to review of the decisions of the Higher Commercial Court, as it could only have quashed the resolution of the latter court, remitted the case for fresh consideration or nullified the proceedings. Instead, the Supreme Court upheld the decision of the Court of Appeal, without giving any reasons for exceeding its jurisdiction, when no such course of action was provided for in the Code of Commercial Procedure. The Court concluded that the Supreme Court had acted contrary to Article 6 § 1 of the Convention, not as a “tribunal established by law”, as it overstepped the limits of its jurisdiction, which were clearly laid down in the aforementioned Code (see Sokurenko and Strygun, cited above, §§ 26 28).

In the Court’s view, the factual and legal circumstances of the present case are identical to those already examined by the Court in the above case (see also Veritas v. Ukraine, no. 39157/02, 13 November 2008, and Bazalt Impex, Tov, cited above). The Court sees no reasons which would justify departure from its previous case-law.

As regards the Government’s arguments concerning the exceptional nature of the Supreme Court’s actions in overstepping procedural rules, the Court observes that in Sokurenko and Strygun the Government acknowledged that taking such decisions had become usual practice for the Supreme Court (see Sokurenko and Strygun, cited above, §§ 19 and 27). The Court further considers that the reasoning given by the Supreme Court in the present case (see paragraph 12 above) did not justify its departure from the procedural rules (see also Bazalt Impex, Tov, cited above, § 24).

Finally, the Government’s argument that the State could be dispensed of liability for a violation of the applicant company’s rights under Article 6 of the Convention once measures had been taken to remedy the situation does not demonstrate in what way the legislative changes, made more than two years after the impugned decision in the applicant company’s case had been given, could remedy the company’s individual situation such that it could no longer claim to be a victim.

In view of the above, the Court concludes that there has been a violation of Article 6 § 1 of the Convention in the present case.

II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

The applicant company also complained that the Supreme Court had not been independent and impartial because its decisions of 30 May 2006 had allegedly been influenced by company E., because it had not examined the applicant company’s requests related to the hearing of 13 May 2008 and because it had not given reasons for allowing the company E.’s request for admission of its appeal in cassation against the decision of 13 February 2008. It also complained that the proceedings before the Supreme Court had not been adversarial and in breach of the principle of equality of arms, as its hearings of 30 May 2006 had taken place in the absence of the applicant company’s representative. It further complained that the Supreme Court and the Higher Commercial Court had breached the principle of legal certainty, having quashed the lower courts’ decisions during the first examination of the cases, and that the length of proceedings had been unreasonable. The applicant company invoked Article 6 § 1 of the Convention in respect of the above complaints. Lastly, it complained under Article 1 of Protocol No. 1 about a breach of its property rights in relation to the proceedings. Subsequently the applicant company withdrew the complaints in respect of the Higher Commercial Court.

Having carefully examined the applicant company’s submissions in the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention. It follows that this part of the application must be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

The applicant company claimed 253,767 and 20,000 euros (EUR), respectively, for pecuniary and non-pecuniary damage.

The Government contested these claims.

The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant company EUR 1,500 in respect of non-pecuniary damage.

B. Costs and expenses

The applicant company did not make any claims under this head. Accordingly, the Court makes no award.

C. Default interest

The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Declares the complaint under Article 6 § 1 of the Convention that the Supreme Court was not “a tribunal established by law” during the fresh consideration of the case in the first set of proceedings admissible and the remainder of the application inadmissible;

Holds that there has been a violation of Article 6 § 1 of the Convention;

Holds

(a) that the respondent State is to pay the applicant company EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Ukrainian hryvnia at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Dismisses the remainder of the applicant company’s claim for just satisfaction.

Done in English, and notified in writing on 15 May 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stephen Phillips Boštjan M. Zupančič
Deputy Registrar President

FIRMA VERITAS, TOV v. UKRAINE - 2217/07

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FIRMA VERITAS, TOV v. UKRAINE - 2217/07

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