Communicated on 11 February 2016
FIFTH SECTION
Application no. 42520/10
Neonila Grygoriivna AGEYEVA
against Ukraine
lodged on 23 June 2010
STATEMENT OF FACTS
The applicant, Ms Neonila Grygoriivna Ageyeva, is a Ukrainian national who was born in 1939 and lives in Lugansk.
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 18 December 2008 the Lugansk Regional Commercial Court ordered liquidation of company L.A.P. in the course of bankruptcy proceedings.
On 31 March 2009 the applicant, one of L.A.P.’s creditors, lodged an appeal against this decision.
On 2 April 2009 the Lugansk Commercial Court of Appeal (“the Court of Appeal”) refused to consider this appeal as lodged out of time.
On 22 September 2009 the Lugansk Commercial Court of Appeal reviewed the decision of 18 December 2008 on appeals lodged by other L.A.P.’s creditors and upheld it.
In the meantime, on 13 April 2009, the applicant had lodged a cassation appeal against the decision of 18 December 2008 with the Higher Commercial Court of Ukraine (“The Higher Court”). Having initially accepted this appeal for consideration, on 3 March 2010 the Higher Court discontinued it on the grounds that the applicant had not challenged the ruling of 22 September 2009 in which the Court of Appeal had upheld the decision of 18 December 2008. The Higher Court noted that the applicant could appeal against the ruling of 22 September 2009 if she so wished.
On 22 March 2010 the applicant lodged a cassation appeal against the ruling of the Higher Commercial Court of Ukraine of 3 March 2010. Relying on Article 111-16 of the Code of Commercial Procedure of Ukraine, the applicant lodged the cassation appeal and accompanying documents with the Higher Court, intending for them to be transferred to the Supreme Court for consideration.
On 5 May 2010 the applicant’s submissions were returned to her with a covering letter signed by the head of the bankruptcy proceedings department of the Higher Court’s 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 had no authority 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.”
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?
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