FIFTH SECTION

CASE OF GENERALNYY BUDIVELNYY MENEDZHMENT v. UKRAINE

(Application no. 11925/09)

JUDGMENT This version was rectified on 14 October 2022

under Rule 81 of the Rules of Court

STRASBOURG

22 September 2022

This judgment is final but it may be subject to editorial revision.

In the case of Generalnyy Budivelnyy Menedzhment v. Ukraine,

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

Ivana Jelić, President, Ganna Yudkivska, Arnfinn Bårdsen, judges, and Martina Keller, Deputy Section Registrar,

Having regard to:

the application 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 private company, Generalnyy Budivelnyy Menedzhment (“the applicant company”), on 16 February 2009;

the decision to give notice to the Ukrainian Government (“the Government”) of the complaint concerning the alleged breach of the applicant company’s rights under Article 6 § 1 of the Convention as a result of the reconsideration of two final decisions given in its favour and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 2 June 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The applicant company complained under Article 6 § 1 of the Convention that the national courts had overturned two final decisions given in its favour after the expiry of the time-limit for lodging an appeal, in breach of the principle of legal certainty.

THE FACTS

2. The applicant company was registered in Odessa. It was represented before the Court by Mr M. Tarakhkalo and Ms O. Protsenko, lawyers practising in Kyiv.

3. The Government were represented by their acting Agent, Ms O. Davydchuk, of the Ministry of Justice.

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

5 . On 2 December 2004 the applicant company entered into a contract of sale (“the contract”) with Odessa Regional Union of Cooperative Societies (“the Union”) on account of which the Union was to transfer to the applicant company the ownership of its subsidiary company B., an integral property complex ( цілісний майновий комплекс ). The contract had to be notarised within one year from the date of its signature.

6 . On 9 December 2004 both parties signed a certificate, which provided for, with reference to the contract, the transfer from the Union to the applicant company of ten identified residential buildings and one adjacent building (“the residential buildings”).

7. In November 2005 the applicant company requested the Odessa Regional Commercial Court (“the Commercial Court”) to declare the contract valid on the grounds that the parties had performed their obligations under it, whereas that the Union had avoided having it notarised. In reply, the Union consented to the applicant company’s claim.

8 . In a final decision of 20 December 2005, the Commercial Court, on the grounds of Article 220 of the Civil Code, declared the contract to be valid holding, inter alia , that the seller [1] had transferred and the purchaser had received the capital assets, a fact which had been reflected in the certificate for non-current assets (see paragraph 6 above). On the basis of that decision, in October 2006 the local department of the State real-estate Bureau registered the applicant company’s title to nine residential buildings.

9. On 29 January 2007 the Commercial Court rejected the Union’s application of 2 November 2006 for review of the final decision of 20 December 2005 on account of allegedly newly discovered circumstances. It found that the Union had relied on a known fact that it had previously omitted to raise. On 15 May 2007 the Odessa Commercial Court of Appeal (“the Court of Appeal”) upheld the above decision.

10 . On 25 June 2007 the Commercial Court allowed the Union’s application for interpretation of the final decision of 20 December 2005. The court clarified that the applicant company had acquired the title to ten residential buildings (“the interpretative decision”). The Court of Appeal declined to hear an appeal by the Union because an interpretative decision could not be appealed against.

11 . On 17 October 2007 the Union lodged a notice of appeal against “the final decision of 20 December 2005 as amended by the interpretative decision”, requesting the restoration of the time-limit for lodging an appeal.

12 . On 22 October 2007 the Court of Appeal restored the time-limit for lodging an appeal, finding the reasons given for the request to be compelling.

13 . On 23 June 2008 it partly allowed the appeal, quashed “the final decision of 20 December 2005 as amended by the interpretative decision” and closed the proceedings for lack of jurisdiction, on the grounds that the physical persons who were the owners of the flats located in the residential buildings should have been allowed to join the proceedings. The applicant company lodged a cassation appeal, asking the Higher Commercial Court of Ukraine (“the HCCU”) to quash the decision of the Court of Appeal and confirm the final decision of 20 December 2005.

14 . By a decision of 23 October 2008, the HCCU dismissed the applicant company’s cassation appeal. It found, however, that the Court of Appeal could not have examined “the final decision of 20 December 2005 as amended by the interpretative decision”, as the interpretive decision had not been an act of justice, but it had only commented on the contents of the decision of 20 December 2005. Accordingly, it concluded that the Court of Appeal had unlawfully restored the time-limit for lodging an appeal. At the same time, the court held that the final decision of 20 December 2005 had not been lawful and sufficiently reasoned. It established that the Commercial Court had wrongly applied Article 220 (2) of the Civil Code in that it had not established the parties to the contract, its subject-matter, whether the contents of the contract had been in conformity with the legislation in force and why the parties had not notarised it. The HCCU quashed both the final decision of 20 December 2005 and the decision of 23 June 2008, remitting the case to the Commercial Court for re-examination. The applicant company unsuccessfully requested that the Supreme Court review that decision.

15 . On 15 June 2009 the Commercial Court dismissed the applicant company’s claim and declared the contract null and void finding that the parties had not complied with the legal requirements as to notarisation of the contract. The Commercial Court further referred to its decision of 15 June 2007 in case no. 9/69-07-1394 ( Vysokyy Housing Cooperative ), which had declared invalid the contractual obligation to transfer the Union’s housing stock, stipulated in the contract of 2 December 2004.

16. By the decisions of 25 August and 17 December 2009, the Court of Appeal and the HCCU, respectively, upheld that decision of the Commercial Court. On 11 March 2010 the Supreme Court of Ukraine refused a request by the applicant company for a review of those decisions.

17. On 21 September 2011 the applicant company lodged a separate application with the Court containing new facts and complaints in relation to one of the residential buildings (“the disputed building”) (see paragraph 6 above).

18. On 10 March 2006 the Commercial Court allowed a claim by the applicant company (“the final decision of 10 March 2006”), declared it to be the owner of the disputed building and ordered the Union to transfer it to the applicant company in accordance with the certificate described in paragraph 6 above.

19. Following an unsuccessful attempt of a certain Mr Zh. for re ‑ examination of the final decision of 10 March 2006 on account of newly discovered circumstances, on 4 November 2010 the Court of Appeal allowed an application of Ms Zh., his former wife, for restoration of the time-limit for lodging an appeal against that decision.

20 . On 23 November 2010 that court quashed the final decision of 10 March 2006 and found that the applicant company had no title to the disputed building. In doing so it referred to both decisions indicated in paragraph 15 above and concluded that the principle of legal certainty allowed for re-examination of court decisions with the aim of repairing fundamental defects, as in the present case. The applicant company lodged a cassation appeal. It did not provide a copy of this document to the Court.

21. On 21 March 2011 the HCCU upheld the decision of the appellate court. Whereas it noted, in general terms, that the applicant company complained about errors on the law and substantive procedural flaws, the HCCU did not deal with the issue of res judicata of the final decision of 10 March 2006.

RELEVANT LEGAL FRAMEWORK

22 . Article 220 (2) of the Civil Code of 16 January 2003, provided that a court may declare a contract valid when the parties had agreed to all essential provisions of the contract, had fully or partly performed their obligations under it, but one of the parties avoided having it notarised. In such a case, the notarisation of the contract was no longer required.

23 . Article 107 of the Code of Commercial Procedure of 6 November 1991, as applicable on 23 October 2008, provided that the parties to the case may lodge a notice of cassation appeal against a decision of the first instance court, which entered into force, or a decision of the appellate court. Article 110 provided, inter alia , that a notice of cassation appeal could be lodged within one month from the date when the relevant decision has entered into force. On 3 August 2010, Article 107 was amended and required an appellate review of a first-instance court’s decision before its cassation review. On 7 January 2018, Article 17 (2) was amended to include a prohibition for a cassation review of the first-instance court’s decision without it having been examined in appeal.

24. The applicant company complained that the quashing of the final decisions in its favour of 20 December 2005 and 10 March 2006 had breached the principle of legal certainty. It relied on Article 6 § 1 of the Convention, which, insofar as relevant, reads as follows:

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

25. The Government did not raise any objections as to the admissibility of the complaint under this head. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and is not inadmissible on any other grounds. It must therefore be declared admissible.

(a) The parties’ submissions

26. The applicant company maintained its complaint.

27 . The Government submitted that the review of the final decision of 2005 had been justified because it had been made necessary by circumstances of a substantial and compelling character. In particular, the Commercial Court had committed a “fundamental error” when it had declared the contract to be valid, given that it had not been notarised and registered, as required by law. Furthermore, they argued that the right of the owners of the flats located in the residential buildings to the peaceful enjoyment of their possessions had been defended. Lastly, they submitted that the applicant company had enjoyed all procedural guarantees during the fresh examination of the case.

(b) The Court’s assessment

28 . The general principles relevant for the present case were summarized in Diya 97 v. Ukraine (no. 19164/04, §§ 46 and 47, 21 October 2010).

29. The Court notes that the core issue in the first set of proceedings concerns the quashing by the HCCU of the decision of 20 December 2005 almost three years after this later decision had become final. The quashing in question followed the second-instance proceedings that were set in motion after the Court of Appeal had restored the time-limit for lodging an appeal against the decision of 20 December 2005. It is noteworthy that the HCCU found such restoration of the time-limit unlawful and quashed, on that basis, the Court of Appeal’s decision of 23 June 2008. It further carried out an additional and independent examination of the decision of 20 December 2005 and concluded that it was unlawful and insufficiently reasoned. On that basis, it quashed that decision and ordered reconsideration of the case by the Commercial Court, as the court of first instance. In doing so, the HCCU did not point to any statutory provision allowing for such a decision to be taken in the given circumstances. In this connection it is to be noted that the cassation proceedings were launched following the notice of appeal by the applicant company in which it did not challenge the decision of 20 December 2005, but only the Court of Appeal’s decision of 23 June 2008. Even assuming that the applicant’s notice of cassation appeal was to be interpreted as having concerned also that decision, the HCCU did not explain why that appeal was to be regarded as having been lodged in compliance with the one ‑ month time-limit set in Article 110 of the Code of Commercial Procedure (see paragraph 23 above). Neither the HCCU in its decision nor the Government in their submissions provided any explanation and supporting material that the HCCU had competence to examine that decision on its own motion.

30. Given the above, the Court considers that the HCCU disregarded clear and precise procedural rules governing the administration of justice, setting at naught the entire judicial process that had ended with a final and enforceable judicial decision. In such circumstances, where the review procedure was not conducted in compliance with the requirements of the domestic law and procedure, there is no need for the Court to pronounce itself whether the disputed quashing was justified for the reasons advanced by the Government (see paragraph 27 above).

31. The Court concludes that in the first set of proceedings, there was a breach of the fair-trial requirement set out in Article 6 § 1 of the Convention.

32. The applicant company reiterated that the time-limit for lodging an appeal against the 2006 final decision in November 2010 had been restored without a valid reason.

33. The Government submitted that it was for the national authorities to resolve problems of interpretation of domestic legislation, including the application of procedural rules governing time-limits. Furthermore, the Court of Appeal had found a fundamental defect in that the contract of sale had never been finalised and that the final decision of 20 December 2005, which was decisive in the case, had been quashed.

34. The second set of proceedings concerns the quashing by the HCCU of the final decision of 10 March 2006. That decision post-dated the restoration of the time-limit for lodging an appeal by the Court of Appeal requested by a third person. The applicant challenged the Court of Appeal’s decision by means of a cassation appeal without providing a copy of its notice to the Court (see paragraph 20 above). In these circumstances, the Court is prevented from assessing whether the applicant company had raised the issue of res judicata before the HCCU. Furthermore, the applicant company, while being legally represented, did not explain why it had not provided that document to the Court (see Lyalyuk v. Ukraine [Committee], no. 38839/07, § 24 and 26, 10 June 2021).

35. Accordingly, this part of application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

36. 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.”

37. The applicant company claimed 4,116,495 United States dollars (USD) in respect of pecuniary damage for the quashing of the final decision of 20 December 2005 and USD 104,104 in respect of pecuniary damage for the quashing of the final decision of 10 March 2006. It submitted no claim in respect of non-pecuniary damage.

38. The Government submitted that the above claims were unsubstantiated and that there was no causal link between the violations the applicant company alleged and its claim in respect of pecuniary damage.

39. The Court does not discern any causal link between the violations found and the pecuniary damage alleged. It therefore rejects this claim.

40. The applicant company claimed 3,750 euros (EUR) in respect of legal fees for its representation before the Court. It presented an invoice for that sum from one of its lawyers, Mr Tarakhkalo.

41. The Government considered that amount to be excessive, given that the lawyer’s work was limited to the preparation of the applicant company’s reply to the Government’s observations and the just satisfaction claim.

42. The Court awards the applicant company EUR 850 in respect of costs and expenses, plus any tax that may be chargeable to it. This amount is to be paid directly into the bank account of the applicant’s representative, Mr Tarakhkalo, as requested by the applicant company (see, for example, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant company, within three months, EUR 850 (eight hundred and fifty euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to it, in respect of costs and expenses, to be transferred directly into the bank account of the applicant’s representative, Mr Tarakhkalo;

(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;

Done in English, and notified in writing on 22 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller Ivana Jelić Deputy Registrar President

[1] Rectified on 14 October 2022: the word was “buyer”.