Communicated on 11 February 2016

FIFTH SECTION

Application no. 54581/10 Svitlana Valentynivna KHLABYSTOVA against Ukraine lodged on 11 September 2010

STATEMENT OF FACTS

The applicant, Ms Svitlana Valentynivna Khlabystova , is a Ukrainian national who was born in 1960 and lives in Yalta.

A. The circumstances of the case

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

In August 2009 the applicant, acting as a private entrepreneur, instituted proceedings in the Commercial Court of the Autonomous Republic of Crimea, seeking to oblige Gurzuf Village Council to renew a commercial lease agreement with her.

After the first-instance and appellate courts had rejected her claims, the applicant lodged a cassation appeal with the Higher Commercial Court of Ukraine.

On 23 March 2010 the Higher Commercial Court rejected the applicant ’ s cassation appeal.

On 8 April 2010 the applicant submitted a further cassation appeal with the Higher Commercial Court of Ukraine against its ruling of 23 March 2010. The cassation appeal was addressed to the Supreme Court of Ukraine, and the applicant intended for it to be forwarded to the Supreme Court, together with the case file.

On 11 June 2010 the Higher Commercial Court returned the applicant ’ s cassation appeal with a covering letter signed by the head of one of the departments of the court registry. The relevant parts of the letter read:

“In its ruling of 11 March 2010 the Constitutional Court of Ukraine ... held that the constitutional status of the Supreme Court of Ukraine was such that it ... did not authorise it to act as a court of cassation in respect of decisions of the higher specialised courts. ...

Accordingly, the rulings (decisions) of a higher specialised court may not be subject to a cassation appeal before the Supreme Court of Ukraine.

In view of the above, the cassation appeal of [the applicant] ... and the enclosed documents are being returned to the appellant.”

On 9 July 2010 the applicant forwarded her cassation appeal directly to the Supreme Court, requesting that it accept it for consideration. She submitted, in particular, that the Higher Commercial Court had arbitrarily refused to fulfil its obligation, as set out in Article 111-16 of the Code of Commercial Procedure, to forward her cassation appeal, together with the case file, to the Supreme Court for review.

On 16 July 2010 the Deputy President of the Commercial Disputes Chamber of the Supreme Court returned the applicant ’ s submissions to her with a covering letter, the relevant parts of which stated:

“... In accordance with the current provisions of the Code of Commercial Procedure of Ukraine, the Supreme Court of Ukraine is not empowered to decide whether to grant [you] leave to lodge a cassation appeal ... in the absence of a case file. At the same time, procedural law does not empower the Supreme Court of Ukraine to demand the production of a case file in order to review the rulings of a [lower] court.”

On 27 July 2010 the applicant wrote a letter to the President of the Higher Commercial Court, complaining that her cassation appeal had mistakenly been returned to her, and demanding that it be forwarded to the Supreme Court together with the case file. She enclosed the Supreme Court ’ s letter of 16 July 2010 and emphasised that there was nothing in the letter indicating that the ruling of the Constitutional Court had invalidated the provisions of Chapter XII-2 of the Code of Commercial Procedure. Accordingly, those provisions had been in force at the time when she had first lodged her cassation appeal, and had to be complied with in her case. The applicant also argued that, having consulted the Supreme Court ’ s website, she had discovered that the Commercial Disputes Chamber had continued to operate in June 2010, and had a schedule of hearings posted on its web page.

On 11 August 2010 the Head of the Document Management Department of the Higher Commercial Court replied to the applicant, saying that there had been no mistake in not forwarding her cassation appeal to the Supreme Court, as the Constitutional Court had clearly establ ished in its ruling of 11 March 2010 that the Supreme Court was not authorised to act as a court of cassation in respect of rulings given by the Higher Commercial Court. He stated, in particular:

“According to paragraph 3.33 of the Instructions on the processing of documents in the commercial courts of Ukraine ... of 10 December 2002 (as amended), cassation appeals against rulings (decisions) of the Higher Commercial Court and any enclosed documents must be returned to the appellants with a relevant advice note and a court fee refund check. ...

Accordingly, the rulings (decisions) of the higher specialised courts may not be appealed against to the Supreme Court.

There is a warning on the official website of the Higher Commercial Court of Ukraine that cassation appeals ... will not be forwarded to the Supreme Court of Ukraine and will be returned to the appellants.”

B. Relevant domestic law

1. 1996 Constitution of Ukraine

The relevant provisions of the Constitution of Ukraine read:

Article 6

“State power in Ukraine is exercised on the basis of its division into legislative, executive and judicial power.

Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution, and in accordance with the laws of Ukraine.”

Article 8

“In Ukraine, the principle of the rule of law is recognised and effective. ...”

Article 125

“In Ukraine, the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation .

The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction.

The respective higher courts are the highest judicial bodies of specialised courts. ...”

Article 129

“...The main principles of the administration of justice are:

...

(8) guaranteeing the possibility of an appeal or cassation appeal against a court decision, except in cases provided for by law; ...”

Article 147

“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine.

The Constitutional Court of Ukraine decides issues relating to the conformity of laws and other legal instruments with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”

Article 150

“The Constitutional Court of Ukraine has the power to:

(1) decide issues relating to conformity with the Constitution of Ukraine (constitutionality) of:

laws and other legal instruments of the Verkhovna Rada of Ukraine; ...

(2) give the official interpretation of the Constitution of Ukraine and the laws of Ukraine;

With regard to the issues set out in this Article, the Constitutional Court of Ukraine adopts final rulings which are binding throughout the territory of Ukraine, and are not subject to appeal.”

Article 152

“...Laws and other legal instruments, or separate provisions thereof, which are deemed to be unconstitutional shall lose legal force from the day the Constitutional Court of Ukraine adopts a decision on their unconstitutionality.”

2. Code of Commercial Procedure of Ukraine

The relevant provisions of the Code, as worded between 15 May 2003 and 7 July 2010, read:

Chapter XII- 2. Review of judicial decisions of the Higher Commercial Court of Ukraine by the Supreme Court of Ukraine

Article 111-14 . The right to a cassation appeal against the judicial decisions of the Higher Commercial Court of Ukraine

“The parties to a case, as well as the Prosecutor General of Ukraine, have the right to lodge a cassation appeal with the Supreme Court of Ukraine against a ruling of the Higher Commercial Court of Ukraine which was adopted following the review of an enforceable ruling of a first-instance commercial court, or a ruling of either the Commercial Court of Appeal or the Higher Commercial Court of Ukraine, upon return of a cassation appeal (request for review).”

Article 111-15. The grounds for appeal to the Supreme Court of Ukraine against a ruling [or decision] of the Higher Commercial Court of Ukraine

“The Supreme Court of Ukraine shall review in cassation proceedings the rulings [or decisions] of the Higher Commercial Court of Ukraine if they are appealed against:

(1) where the Higher Commercial Court of Ukraine has applied a law or normative legal instrument which contravenes the Constitution of Ukraine;

(2) where a decision contravenes decisions of the Supreme Court of Ukraine or a higher specialised court on an issue relating to the application of rules of substantive law;

(3) where it is revealed that the Higher Commercial Court of Ukraine has applied the same legal provision or any other normative legal instrument differently in similar cases;

... ”

Article 111 - 16. Procedure for filing a cassation appeal and submissions against a ruling or decision of the Higher Commercial Court of Ukraine

“... A cassation appeal ... shall be filed with the Supreme Court of Ukraine via the Higher Commercial Court of Ukraine.

The Higher Commercial Court of Ukraine shall forward the cassation appeal (submissions), together with the case file, to the Supreme Court of Ukraine within ten days of receipt.

...”

3. Ruling of the Constitutional Court of Ukraine in a case regarding a constitutional application by forty-six members of parliament concerning the official interpretation of the terms “the highest judicial body”, “a higher judicial body” [and] “the cassation appeal”, contained in Articles 125 and 129 of the Constitution of Ukraine

“...

[The Constitutional Court] holds:

1. As regards the constitutional application:

- the reference to ‘ the possibility of a ... cassation appeal against a court decision ’ in ... Article 129 of the Constitution of Ukraine ... means a single cassation appeal and review of a judicial decision; the law may set out other forms of appeal and review of decisions taken by the courts of general jurisdiction;

- the reference in ... Article 125 of the Constitution of Ukraine to the ‘ higher courts ’ as ‘ the highest judicial bodies of specialised courts ’ means that the higher courts operate as cassation courts in respect of decisions of the specialised courts, on the basis of and within the limits established by the laws on the administration of justice;

- the reference in ... Article 125 of the Constitution of Ukraine to the Supreme Court of Ukraine as ‘ the highest judicial body in the system of courts of general jurisdiction ’ means that the constitutional status of the Supreme Court of Ukraine is such that the legislature does not intend for it to act as a cassation court with regard to decisions of the higher specialised courts, which do operate as cassation courts.

2. A ruling of the Constitutional Court of Ukraine is final, binding throughout the territory of Ukraine, and not subject to appeal. ...”

4. Law of Ukraine on the Judicial System and th e Status of Judges (no. 2453-VI of 7 July 2010)

Amongst other things, the aforementioned Act introduced amendments to Chapter XII-2 of the Code of Commercial Procedure, the relevant parts of which read:

Chapter XII . Final Provisions

“ 1. This Act shall enter into force immediately ...

3. The following amendments shall be made ...

3.3. to the Code of Commercial Procedure of Ukraine:

...

Chapter XII- 2 . Review of judicial decisions by the Supreme Court of Ukraine

Article 111 - 14 . Review of judicial decisions by the Supreme Court of Ukraine

The Supreme Court of Ukraine shall only review rulings of the commercial courts on the grounds and in accordance with the procedure set out in this Code.

Article 111-15. The right to apply for review of a judicial decision of a commercial court

The parties to a case and the Prosecutor General of Ukraine have the right to lodge an application for review of a judicial decision of a commercial court after its review in cassation proceedings. ...

Article 1 11 - 16. Grounds for lodging an application for review of a judicial decision of a commercial court

An application for review of a judicial decision of a commercial court may only be lodged on the following grounds:

(1) inconsistent application by a court of cassation of the same provisions of substantive law, resulting in the adoption of conflicting judicial decisions in respect of similar factual situations regulated by law;

(2) where there has been a finding by an international judicial body whose jurisdiction is recognised by Ukraine, that Ukraine has breached international obligations in relation to the determination of a case.”

5. Instructions on the processing of documents in the commercial courts of Ukraine, approved by Order no. 75 issued by the President of the Higher Commercial Court of Ukraine on 10 December 2002

The above instruct ions were amended on 25 October 2004, 21 April 2011 and 23 May 2011, and subsequently repealed on 27 Februa ry 2013. Paragraphs 3.32 and 3.33 of the instructions, as worded in 2010, read:

“3.32. Cassation appeals addressed to the Supreme Court of Ukraine and cases which arrive at the Higher Commercial Court of Ukraine shall be registered by the document processing service.

...

3.33. A covering letter concerning the forwarding of a cassation appeal with its case file to the Supreme Court of Ukraine shall be signed by an authorised official of the Higher Commercial Court of Ukraine and transferred to the document processing service, together with any accompanying material and the case file.

...”

COMPLAINT

The applicant complains under Article 6 § 1 of the Convention that she has been arbitrarily deprived of access to the Supreme Court of Ukraine.

QUESTIONS TO THE PARTIES

Was the Higher Commercial Court ’ s refusal to forward the applicant ’ s cassation appeal and the relevant case file to the Supreme Court compatible with the applicant ’ s right to a court, guaranteed by Article 6 § 1 of the Convention? In particular, were those actions foreseeable under the relevant domestic legislation and compatible with the legal certainty principle?