FIFTH SECTION

DECISION

Application no. 53760/10 Mayya Volodymyrivna DUBYNYUK against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 23 June 2020 as a Committee composed of:

Mārtiņš Mits , President, Ganna Yudkivska , Lәtif Hüseynov , judges, and Anne-Marie Dougin, Acting Deputy Section Registrar ,

Having regard to the above application lodged on 10 September 2010,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Mayya Volodymyrivna Dubynyuk , is a Ukrainian national who was born in 1964 and lives in Sevastopol. She was represented before the Court by Mr S.A. Zayets , a lawyer practising in Irpin in the Kyiv Region.

2 . The Ukrainian Government (“the Government”) were represented by their Agent, Mr I. Lishchyna .

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

4 . From 18 to 24 April 2008 the applicant, who was a shareholder in a closed joint-stock company, B ., concluded twelve sale and purchase contracts with other shareholders of that company for the purchase of 3,234 shares.

5 . On 5 September 2008 D., another shareholder in the B. company , initiated twelve sets of court proceedings against the applicant and other shareholders who had sold the shares to the applicant. Relying on his pre ‑ emptive purchase rights under domestic law as a shareholder, he requested that the right to purchase the shares under the disputed contracts be transferred to him.

6 . On 16 April 2009 the Sevastopol City Commercial Court allowed D. ’ s claim in all twelve cases, finding that his pre-emptive right to purchase the shares had been breached, and that he was entitled to have the right to purchase the shares transferred to him. The court ordered D. to pay the applicant the sum she had originally paid for the shares by way of consideration.

7 . The applicant appealed against the decisions in all twelve cases. The complaints she raised before the Court concerned five out of those twelve sets of proceedings, namely the proceedings relating to cases nos. 5020 ‑ 3/112-12/533-5/021 (“case no. 1”), 5020-3/113-12/534-5/022 (“case no. 2”), 5020-3/118-12/539-5/027 (“case no. 3”), 5020 ‑ 3/119-12/540-5/028 (“case no. 4”) and 5020-3/122-12/543-5/031 (“case no. 5”) .

8 . On 20 October 2009 the Sevastopol Commercial Court of Appeal upheld the decisions of 16 April 2009 of the first-instance court in cases nos. 1 and 2.

9 . The applicant and other shareholders lodged cassation appeals in those cases. On 24 December 2009 the Higher Commercial Court of Ukraine upheld the decisions of the lower courts.

10 . The applicant and other shareholders appealed to the Supreme Court of Ukraine. On 11 March 2010 the Supreme Court of Ukraine refused to open cassation proceedings in either case, upholding the finding of the lower courts that D. ’ s pre ‑ emptive rights had been breached.

11 . On 29 October 2009 the Sevastopol Commercial Court of Appeal upheld the decisions of 16 April 2009 of the first-instance court in cases nos. 3, 4 and 5.

12 . The applicant and other shareholders lodged cassation appeals. On 8 February 2010 the Higher Commercial Court of Ukraine upheld the decisions of the lower courts.

13 . Three other shareholders, Dm., I. and M., lodged cassation appeals with the Supreme Court of Ukraine in cases nos. 3, 4 and 5 respectively.

14 . On 20 April 2010 the Supreme Court found in all three cases that the lower courts had misapplied the national law. It remitted the cases to the first ‑ instance court for fresh consideration, in so far as they concerned the transfer of rights. The Supreme Court interpreted the relevant provisions of the Civil and Commercial Codes and the Law on commercial companies and established that in a situation where a shareholder wished to sell his or her shares, he or she should take into consideration the pre ‑ emptive rights of other shareholders. However, at the same time, there was no obligation to sell the shares to those other shareholders on an equitable basis. The shareholder was able to choose any purchaser from among the persons who held a pre-emptive right. The court confirmed that a pre-emptive right could be breached in the event that shares were sold to a third party, but that other shareholders of the company concerned were not third parties. The court concluded that D. ’ s pre-emptive right to purchase the shares had not been breached.

15 . The Sevastopol City Commercial Court dismissed D. ’ s claims on 23 September 2010 (case no. 3) and 2 September 2010 (cases nos. 4 and 5) , finding that D. ’ s pre-emptive right had not been breached.

16 . Appeals against those decisions lodged by D. with the Sevastopol Commercial Court of Appeal were rejected on 4 November 2010, 25 October 2010 and 15 November 2010 respectively.

17 . Under Article 81 § 3 of the Commercial Code of Ukraine of 2003, as worded at the relevant time, the shareholders of a closed joint-stock company had a pre-emptive right to acquire any shares which other shareholders of that company intended to sell. The Constitutional Court of Ukraine has interpreted this provision as follows ( point 1.2 of the operative part of its judgment of 11 May 2005):

“[A]n owner shall possess, use and dispose of his or her property at his or her own discretion, but when enjoying this right, he or she shall not breach the rights or legally secured interests of citizens, legal persons and society, including the pre-emptive purchase right (which is not absolute) of the shareholders of a closed joint-stock company for the acquisition of shares in that company ...”

COMPLAINT

18 . The applicant complained under Article 6 § 1 of the Convention that the Supreme Court had reached different conclusions in identical cases, breaching the principle of legal certainty.

THE LAW

19 . In her complaint to the Court, the applicant relied on Article 6 § 1 of the Convention, which reads as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

20 . The Government submitted that the applicant had not provided copies of the cassation appeals which she had lodged with the Higher Commercial Court and the Supreme Court in cases nos. 1 and 2. They could not, therefore, examine those documents and compare their contents with the cassation appeals lodged by Dm., I. and M. in cases nos. 3, 4 and 5.

21 . Furthermore, the relevant files were kept in the archives in the territory of the Autonomous Republic of Crimea, to which they had no access. They added, referring to a letter from the Supreme Court to the Ministry of Justice of 24 June 2019, that the Supreme Court ’ s case file in cases nos. 1 and 2 had been destroyed owing to the expiry of the five-year storage period.

22 . At the same time, they submitted that there were no grounds to believe that the Supreme Court had reached different conclusions in similar cases, as in cases nos. 1 and 2 it had not considered the merits. In addition, there were no profound and long-standing differences in the case-law nor could it be said that distinct standards of jurisprudence had developed, leading to similar cases being decided differently. The applicant had benefited from adversarial proceedings, she had been able to adduce evidence and her arguments had been properly examined by the courts. They asked the Court to reject the application as unsubstantiated.

23 . The applicant submitted that there had been no significant differences between the cases in issue that could justify the different outcomes of the proceedings: the purchase of shares had been concluded between 16 and 24 April 2008, the applicant had been one of the respondents in all the above-mentioned sets of proceedings, all the cassation appeals had been lodged with the Supreme Court on the same day and they had been drafted by the same lawyer on the basis of the same template.

24 . The Court notes that the applicant ’ s submissions are unsubstantiated. Even though she was represented by a lawyer, the applicant did not provide copies of the cassation appeals she had lodged with the Supreme Court in cases nos. 1 and 2, nor did she comment on why she had not provided those documents in her reply to the observations of the Government.

25 . Therefore, the applicant has failed to demonstrate that the Supreme Court was called upon to decide on similar issues in cases nos. 1 and 2 and cases nos. 3, 4 and 5.

26 . The application being unsubstantiated, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 16 July 2020 .

Anne-Marie Dougin Mārtiņš Mits              Acting Deputy Registrar President