FIFTH SECTION

DECISION

Application no . 38713/04 PIVDENBUDTRANS, PAT against Ukraine

The European Court of Human Rights ( Fifth Section ), sitting on 15 April 2014 as a Committee composed of:

Boštjan M. Zupančič , President, Ann Power-Forde , Helena Jäderblom , judges and Stephen Phillips , Deputy Section Registrar ,

Having regard to the above application lodged on 6 October 2004 ,

Having regard to the decision of 28 May 2013 to adjourn the application after deliberations,

Having deliberated, decides as follows:

THE FACTS

The app licant company, Pivdenbudtrans , PAT, is a joint stock venture registered in Yuzhnoukrainsk . It is represented before the Court by Mr Volodymyr Lopushanskyy .

A. The circumstances of the case

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

1. First set of proceedings

On 5 August 1998 company Y. issued a bill of exchange to the applicant company. On an unspecified date the applicant company transferred it to company Ya . The applicant company and Ya . drew up a delivery-acceptance act in respect of the bill, which contained the latter ’ s details, the amount payable (UAH 57,409) and the date of payment. Ya . subsequently transferred the bill to company V. Eventually, the amount mentioned in the bill was paid to its holder, V., and the bill was returned to company Y.

The applicant instituted proceedings in the Vinnytsya Regional Commercial Court against company Ya . seeking the recovery of the sum mentioned in the bill claiming that it sold the bill to Ya . but the latter had failed to pay for it.

On 2 June 2003 the court found that the transfer of the bill in question fell to be regarded as its purchase and the delivery – the acceptance act constituted a purchase agreement. At the same time, the court rejected the applicant company ’ s claims against company Ya . as unsubstantiated, finding that the applicant company had transferred its right to claim the debt under the bill to company Ya . and that there was no evidence that company Ya . owed a debt to the applicant company.

On 18 December 2003 the Zhytomyr Commercial Court of Appeal upheld this judgement . It confirmed that the transfer of the bill from the applicant to Ya . constituted a purchase.

On 10 March 2004 the Higher Commercial Court upheld the lower courts ’ decisions. The applicant company did not appeal to the Supreme Court.

2. Second set of proceedings

On 25 August 1999 company Y. issued a bill of exchange for the amount of 1,800,000 Ukrainian hryvnias (UAH) to the applicant company. On the same day the applicant company transferred that bill to the State-owned company YAES. The applicant company and Y AES drew up a delivery-acceptance act in respect of the bill, which contained the latter ’ s details, the amount payable (UAH 1,800,000) and the date of payment.

On an unspecified date company Y. paid the sum mentioned in the bill to Y AES.

On 6 July 2001 the applicant instituted proceedings before the Mykolayiv Regional Commercial Court against Y AES seeking the recovery of debts. The applicant company claimed that according to the delivery accept ance act, it sold the bill to Y AES, which had failed to pay its full price (UAH 1,800,000).

The court allowed the applicant company ’ s claims in part.

On 19 February 2002 the Odessa Commercial Court of Appeal quashed that judgment and dismissed the applicant company ’ s claims.

On 23 October 2002 the Higher Commercial Court quashed the decisions of the lower courts and remitted the case to the first-instance court for fresh consideration.

On 15 January 2003 the first-instance court found that the delivery-acceptance act must be regarded as a purchase agreement in respect of the bill. The court concluded that YAES bought the bill from the applicant company but failed to pay its full price. YAES was thus ordered to pay the outstanding debt to the applicant.

On 15 April 2003 the Odessa Commercial Court of Appeal disagreed with the first-instance court, noting that the delivery-acceptance act did not contain the essential elements required for it to constitute a purchase agreement, notably the object being purchased, its price and the terms of payment. On the contrary, the delivery-acceptance act was proof that the applicant company had negotiated the bill to YAES and thus lost any rights to claim the sums under the bill or the act. The court quashed the lower court ’ s judgment and found against the applicant company having found that after negotiation the applicant company lost any rights to claims sums under it.

By a decision of 16 July 2003, the Higher Commercial Court returned a cassation appeal by the applicant to it on account of procedural shortcomings. On 21 October 2003 the Supreme Court quashed this decision and remitted the case to the Higher Commercial Court for consideration on the merits. On 28 January 2004, in the absence of the applicant company ’ s representative, who had not been informed of the hearing, the Higher Commercial Court upheld the findings of the Court of Appeal and dismissed the applicant company ’ s cassation appeal.

On 27 February 2004 the applicant company applied to the Supreme Court for leave to appeal in cassation, alleging, in particular, that in an identical situation involving different parties the Higher Commercial Court had reached an opposite conclusion, having found that a delivery-acceptance act was a purchase agreement. In support of its allegation, the applicant company submitted a copy of a decision of the Higher Commercial Court of 7 August 2003 given in a dispute between the companies B. and G. (see below). The applicant company did not complain about the absence of its representative at the hearing of 28 January 2004.

On 15 April 2004 the Supreme Court rejected the applicant ’ s request for leave to appeal in cassation, finding that there were no irregularities in the contested decisions.

3. P roceedings concerning the dispute between companies B. and G.

On 7 August 2003 the Higher Commercial Court, dealing with a dispute between companies B. and G., which is identical to the applicant ’ s dispute with YAES , found that a delivery-acceptance act in respect of a bill of exchange drawn up by companies B. and G. must be regarded as purchase agreement in respect of that bill.

COMPLAINTS

1. The applicant company complained that it had not had a fair and public hearing within a reasonable time by an independent and impartial tribunal in the second set of proceedings. In particular, it argued that ( i ) in that set of proceedings the Higher Commercial Court found that the delivery acceptance act did not constitute a purchase agreement, while in the first set of proceedings and in the proceedings concerning the dispute between companies B. and G. , that court reached an opposite conclusion ; (ii) the applicant company had not been duly informed of, and its representative had not been present at the hearing of 28 January 2004 before the Higher Commercial Court ; (iii) by the decision of 16 July 2003 this court had unlawfully rejected the applicant company ’ s appeal in cassation , thus depriving it of access to that court ; (iv) the length of the second set of proceedings had been excessive; and (v) the courts dealing with the second set of proceedings case had been biased.

2. The applicant company further complained under Article 14 of the Convention that ( i ) in the second set of proceedings the courts had favoured the arguments of YAES because that company was owned by the State; and that (ii) on account of that company ’ s failure to pay its debt s to it, the applicant company had had to sell its property to pay the salaries of its employees .

3. The applicant company also complained of a violation of Article 1 of Protocol No. 1 in connection with the latter allegation. The applicant company further complained under the same provision that as a result of the unfair consideration of its claims in the second set of proceedings, it had been deprived of the sums due to it under the bill of exchange.

THE LAW

1. The applicant company complained that it had been denied a fair hearing in the second set of proceedings as the matter it had raised before the domestic courts had been the subject of conflicting decisions by the Higher Commercial Court .

The applicant company 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 [a] ... tribunal ...”

The Court reiterates that when dealing with allegations concerning conflicting decisions of domestic courts, it must determine in the first place whether the allegedly conflicting decisions concerned identical factual situations (see Rakić and Others v. Serbia , nos. 47460/07 and foll . , § 43, 5 October 2010). Where the facts are identical but the application of the law by a domestic court or courts differ s , the Court must be guided in its examination of the issue by the following criteria: whether “profound and long-standing differences” exist in the case-law of a supreme court, whether the domestic law provides for machinery for overcoming these inconsistencies, whether that machinery has been applied and, if appropriate, to what effect (see Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05 , §§ 49-58, 20 October 2011 ).

Turning to the circumstances of the present case, the Court accepts that all the three disputes to which the applicant company refers in its application are identical. However, in the Court ’ s view, it has not been demonstrated that there existed “profound and long-standing differences” in the case-law of the Higher Commercial Court or of the Supreme Court in respect of the legal issues raised in those disputes. Furthermore, the decisions of the Higher Commercial Court in the second set of proceedings as such do not appear to be arbitrary or manifestly unreasonable, and thus the Court sees no call to intervene in the present situation under Article 6 § 1 of the Convention in the field of interpretation of domestic legislation .

Accordingly, this part of the application must be declared inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

2. The applicant company also raised other complaints under Articles 6 and 14 of the Convention and Article 1 of Protocol No. 1.

Having carefully examined those complaints 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 also be declared inadmissible as being manifestly ill-founded, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Stephen Phillips BoÅ¡tjan M. Zupančič              Deputy Registrar President