FIFTH SECTION

DECISION

Application no. 250/10 KORONA-SERVIS, TOV against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 22 October 2019 as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President, Yonko Grozev, Lado Chanturia, judges, and Cla udia Westerdiek , Secti o n Registrar ,

Having regard to the above application lodged on 25 September 2009,

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

Having deliberated, decides as follows:

THE FACTS

1 . The applicant company, Korona-Servis, TOV, is a limited liability company registered in Ukraine. It was represented before the Court by Mr A. Shapovalov, a lawyer practising in Lviv .

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

3 . On 22 February 2018 notice of the applicant company ’ s complaints under Article 6 § 1 of the Convention of the alleged breach of its right of access to a court and under Article 1 of Protocol No. 1 raised in connection with that alleged breach was given to the Government, and the remainder of the application was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court.

The circumstances of the case

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

5 . Between 1998 and 2003 the applicant company leased premises from the local authorities. On 2 September 2003 the lease contract was terminated after the premises were sold to a third party during a privatisation process. The applicant company was paid compensation for permanent improvements it had made to the premises while leasing them. The amount of that compensation was determined by a private company (“company A.”) hired by the local authorities. In particular, an evaluation report by that company dated 1 April 2003 (“the report of 1 April 2003”), which determined the amount of the compensation, was based, inter alia , on an inventory file relating to the above premises kept by the local Technical Inventory Bureau (“the TIB”).

6 . As can be seen from the applicant company ’ s submissions and from the public register of court decisions, on an unspecified date it lodged a claim with the commercial courts against company A., seeking the invalidation of the report of 1 April 2003 on the grounds that, because of various mistakes made in it, the amount of compensation due to the applicant company had been determined incorrectly.

7 . By a final ruling of 24 December 2008, the Higher Commercial Court upheld the lower courts ’ decisions rejecting the claim. The courts noted that the report of 1 April 2003 had created in respect of the applicant company a right to compensation and that they therefore had jurisdiction to examine the claim. However, the claim had been found ungrounded as the report had been prepared correctly and without any irregularities. Furthermore, the courts noted that they had already examined another claim lodged by the applicant company in June 2003 against company A., challenging the evaluation of the cost of the permanent improvements that it had made, as determined in the above-mentioned report. Lastly, the courts held that even though the applicant company had argued that the case file had not contained the full text of the report of 1 April 2003 (which had allegedly prevented it from arguing its case), the full text had eventually been obtained by the appellate court from the local authorities, but its presence in the file had not altered the courts ’ view that the claim had been groundless.

8 . According to the applicant company, during the appellate proceedings held in the course of the aforementioned proceedings against company A. it became acquainted with the full text of the report of 1 April 2003, to which the TIB ’ s inventory file had been added as an annex. On 11 September 2008 it lodged a claim with the commercial courts against the TIB for the invalidation of that file, considering that it contained mistakes and that the compensation due to it had therefore been incorrectly determined in the above-mentioned report.

9 . By a ruling of 4 March 2009, the Higher Commercial Court upheld the lower courts ’ decisions not to examine the claim . The courts found that the inventory file neither specified any rights or obligations in respect of the parties nor created them; it did not therefore constitute a deed. Nor did it constitute a legal or individual act . Consequently, the courts had no jurisdiction to examine the case.

10 . On 30 July 2009 the Supreme Court declined to grant leave to the applicant company to lodge an appeal in cassation against the above ruling.

11 . On 25 September 2008 the applicant company lodged a similar claim with the administrative courts for the invalidation of the inventory file.

12 . On 11 December 2009 the Chernigiv Administrative Court declined to examine the claim. On 7 October 2010 the Kyiv Administrative Court of Appeal upheld that decision. The courts held that the inventory file did not constitute a legal act, decision, action or failure to act on the part of the public authorities and that the case should not therefore be examined by the administrative courts. They also noted that if the applicant company believed that the inventory file contained mistakes affecting its rights, it could challenge in the courts the actions of the TIB officials who had allegedly inserted incorrect data into the file.

13 . On 21 December 2017 the applicant company lodged an appeal in cassation against the above decisions. On 18 January 2018 the Administrative Court of Cassation rejected that appeal as having been lodged out of time, no valid reason having been given by the applicant company for a renewal of the time-limit for lodging it.

14 . On 29 October 2008 the applicant company lodged a similar claim with the civil courts for the invalidation of the inventory file.

15 . By a final ruling of 27 March 2009, the Supreme Court upheld the lower courts ’ decisions not to examine the claim. The courts held that the parties to the dispute were legal bodies and that the case should be examined by the commercial courts. The courts also noted that the commercial courts had already examined a dispute between the applicant company and company A. over the validity of the report of 1 April 2003 (see paragraph 7 above), on the basis of which the amount of compensation due to the applicant company had been determined. That report had been prepared taking into account the data contained in the inventory file.

COMPLAINTS

16 . The applicant company complained under Articles 6 § 1 and 13 of the Convention that the domestic courts had failed to examine its claims for the invalidation of the inventory file, having deprived it of its right of access to a court . It also complained under Article 1 of Protocol No. 1 in that connection.

THE LAW

17 . Relying on Articles 6 § 1 and 13 of the Convention, the applicant company complained that it had been denied access to a court in the proceedings for the invalidation of the inventory file. The Court considers that this complaint should be examined solely under Article 6 § 1 (see, for instance, Matsyuk v. Ukraine , no. 1751/03 , § 22, 10 December 2009 ), which reads:

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

18 . The Government submitted that the domestic courts had established that the inventory file had not constituted a legal act and that the information contained therein had not created any legal consequences for the parties. In their view, instead of challenging that file, the applicant company could have challenged the actions of the TIB officials (who had allegedly made mistakes in the inventory file) or the report of 1 April 2003 as a whole. Had such a claim been allowed, it would have then had grounds to challenge the actions of the authorities that had carried out the privatisation of the premises and to ask the courts to declare that the amount of compensation paid to it had been incorrect. The Government thus concluded that the proceedings for the invalidation of the inventory file had not concerned the determination of the applicant company ’ s “civil rights” within the meaning of Article 6 § 1 and that the complaint was therefore incompatible ratione materiae with that provision.

19 . The applicant company did not comment on the admissibility of the complaint. In responding to the Government ’ s argument that it could have challenged the report of 1 April 2003, it generally referred to the proceedings against company A. It also generally referred to a breach of Article 6 § 1 in its case.

20 . The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“contestation” in the French text) over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law – irrespective of whether it is also protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Lastly, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Baka v. Hungary [GC], no. 20261/12, § 100, ECHR 2016).

21 . The Court notes that in its claims for the invalidation of the inventory file the applicant company stated that that file had contained mistakes and that, as a result, the compensation due to it had been incorrectly determined in the report of 1 April 2003. At the same time, it did not seek any compensation as such within those claims; their only object was the invalidation of the inventory file. In fact, it would not appear that it would have been able to seek any compensation within those claims that were lodged solely against the TIB (and not jointly against the TIB officials who had allegedly made mistakes in compiling the inventory file, company A. which had determined the compensation in its report of 1 April 2003 on the basis, inter alia , of that file, and the local authorities which had paid the compensation to the applicant company determined on the basis of that report). Accordingly, the possible examination of those claims on the merits would not have resulted in any award of compensation to the applicant company or in the establishment of any rights allegedly belonging to it. Indeed, the Court notes that the commercial and administrative courts directly or indirectly concluded that the inventory file did not contain or create any rights for the applicant company (see paragraphs 9 and 12 above). In such circumstances, the Court fails to see how the proceedings instituted by the applicant company for the invalidation of the inventory file could have addressed its allegation that the compensation calculated in the report of 1 April 2003 had been incorrect, and how the possible invalidation of the inventory file would have automatically led to a determination, within the same proceedings, of its alleged right to a different amount in compensation. The applicant company did not explain the purpose of bringing the above proceedings and how their outcome could have been “directly decisive” for its right to compensation.

22 . In the Court ’ s view, it was the report of 1 April 2003, rather than the inventory file, that directly determined the applicant company ’ s right to compensation and the amount thereof. That view was also held by the domestic courts in the proceedings against company A.; the courts noted that the above-mentioned report created the applicant company ’ s right to compensation (see paragraph 7 above). Indeed, the applicant company twice challenged before the courts the validity of that report on various grounds, also alleging that the compensation determined in it had been calculated incorrectly. It thus appears that the applicant company did not consider such a procedural route inappropriate in its attempts to challenge the amount of compensation. The commercial courts, which established their jurisdiction to examine its claims, did not consider that procedural route inappropriate either. It is not clear from the court decisions and the applicant company ’ s submissions whether in those proceedings the latter was in a position to challenge and actually challenged the validity of the report on the grounds that it had been based on the inventory file, which had allegedly contained mistakes. The applicant company made no argument in this respect and the Court notes that its complaint exclusively concerns the proceedings for invalidation of the inventory file (see paragraph 17 above).

23 . The Court thus concludes that the proceedings for the invalidation of the inventory file – regardless of the question of which court would have jurisdiction on the matter – could not alone result in the determination of the applicant company ’ s right to compensation. It cannot therefore be said that their outcome would be directly decisive for its “civil rights” under the Convention. It follows that Article 6 § 1 of the Convention does not apply (see, mutatis mutandis , Ulyanov v. Ukraine (dec.), no. 16472/04, 5 October 2010).

24 . Accordingly, this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) of the Convention and must be rejected under Article 35 § 4.

25 . The applicant company also alleged a breach of Article 1 of Protocol No. 1 on account of the domestic courts ’ refusal to examine its claims for the invalidation of the inventory file. The above provision reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

26 . The Government reiterated that the applicant company had not challenged the report of 1 April 2003 and furthermore stated that it had not sought the ordering of an expert examination for the purposes of establishing whether the above-mentioned report was correct. They concluded that it had no “legitimate expectation” within the meaning of Article 1 of Protocol No. 1 and that its complaint was incompatible ratione materiae .

27 . The Court refers to its findings under Article 6 § 1 of the Convention detailed in paragraphs 21 - 24 above and reiterates that the proceedings in which the applicant company challenged the inventory file could not have led to compensation being awarded to it. It also notes that the domestic courts ’ decisions adopted in those proceedings do not appear to have been arbitrary or manifestly unreasonable. Furthermore, the Court has limited jurisdiction to interpret domestic law and, in principle, it cannot substitute its view for that expressed by the domestic courts (see, mutatis mutandis , Menshakova v. Ukraine , no. 377/02 , § 66, 8 April 2010) . Accordingly, it considers that the outcome of the proceedings for the invalidation of the inventory file does not disclose any unjustified interference with the applicant company ’ s possessions under Article 1 of Protocol No. 1.

28 . It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 November 2019 .

Claudia Westerdiek Gabriele Kucsko-Stadlmayer Registrar President