FIFTH SECTION
DECISION
Application no. 1752/13
CARLTON TRADING LTD and CARLTON TRADING UKRAINE, LLC
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 27 March 2025 as a Committee composed of:
Gilberto Felici, President,
Diana Sârcu,
Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 1752/13) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 4 January 2013 by two companies, Carlton Trading Ltd (“the first applicant company”), which was established in 1990 and is based in the British Virgin Islands, and Carlton Trading Ukraine LLC (“the second applicant company”), which was established in 1998 and is based Kyiv, and which were represented by Mr O. A. Peremezhko, a lawyer practising in Kyiv;
the decision to give notice of the complaints under Article 6 of the Convention concerning the right to a fair trial to the Ukrainian Government (“the Government”), represented by their Agent, Ms Marharyta Sokorenko, and to declare the remainder of the application inadmissible;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The case concerns the alleged unfairness of domestic commercial proceedings concerning the validity of a contract between the applicant companies, and Hotel K. (a State-owned enterprise attached to the Ministry of Defence) which contained an arbitration clause (“the contract”).
2. On 30 September 2011 the Arbitration Institute at the Stockholm Chamber of Commerce issued an arbitration award, finding the contract to be valid (“the arbitration award”). It ordered Hotel K. to fulfil a number of obligations, including monetary obligations, towards the applicant companies.
3. On 10 July 2012 the Higher Commercial Court of Ukraine upheld decisions of the lower courts dated 17 January and 17 April 2012, respectively, which had found the contract and the arbitration clause to be invalid.
4. The applicant companies complained under Article 6 of the Convention that the national courts had not been established by law, that the first applicant company had only participated in the cassation proceedings, and that the national courts’ decisions had been arbitrary. They further complained that those decisions would impede the enforcement of the arbitration award.
5. On 14 January 2021 the Registry of the Court sent a letter to the applicants’ representative, asking him to provide information in relation to the enforcement of the arbitration award and to submit any relevant documents.
6. In a letter dated 25 February 2021, the applicant companies’ representative informed the Court that on 8 May 2014 the Shevchenkivskyi District Court of Kyiv had allowed the applicant companies’ application for the recognition and enforcement of the arbitration award and that enforcement orders had been submitted to the relevant Bailiffs’ Service. The representative also stated that the court decision of 17 January 2012 had impeded the enforcement of the arbitration award in full, without giving details, and that the aim of lodging the complaint with the Court had been to receive a basis for reversing that decision, after which the arbitration award would be enforced in full.
7. According to the information provided by the Government in their observations of 3 March 2023, (i) on 29 August 2017 and 22 May 2020 respectively, the second applicant company had received 1,514,271.72 Ukrainian hryvnias (UAH) (around 50,475 euros (EUR) at the material time) as payment of arbitration costs and UAH 95,000 (around EUR 3,275 at the material time) as reimbursement of expenses for legal representation; and (ii) on 4 January 2021 the first applicant company had received UAH 212,997.07 (around EUR 6,265 at the material time) as payment of the guaranteed minimum return in line with inflation.
THE COURT’S ASSESSMENT
8. The Government argued that the application should be declared inadmissible on the grounds that the applicant companies had abused their right of petition by failing to inform the Court about the enforcement, in part, of the arbitration award relating to the payment of monetary obligations.
9. The applicant companies argued in response that at the time of their lodging of the application, the arbitration award had not been enforced and thus they had provided the correct information at the time. In addition, they stated that the main parts of the arbitration award, namely, those parts relating to the obligation to take certain action, had not been enforced and that the Court had already rejected their complaint raised under Article 1 of Protocol No. 1 to the Convention as inadmissible at the time of giving notice of their application to the Government.
10. The Court reiterates that an application may be rejected as an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention if, among other reasons, it was knowingly based on false information or if significant information and documents were deliberately omitted, either where they were known about from the outset or where new significant developments occurred during the proceedings. Incomplete and therefore misleading information may amount to an abuse of the right of application, especially if the information in question concerns the very core of the case and no sufficient explanation is given for the failure to disclose that information (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014; S.A.S. v. France [GC], no. 43835/11, § 67, ECHR 2014 (extracts); and Čaluk and Others v. Bosnia and Herzegovina (dec.) [Committee], nos. 3927/15 and 63 others, §§ 18-19, 25 September 2018).
11. In the present case, the applicant companies’ lawyer failed to inform the Court of the important developments, which directly related to the complaint that they had raised in their application form.
12. In addition, the Court observes that the applicant companies should have updated the Court on at least three occasions, namely, in 2014, when the Shevchenkivskyi District Court of Kyiv allowed their application for the recognition and enforcement of the arbitration award (see paragraph 6 above); between 2017 and 2021 at the time of the enforcement of certain monetary obligations (see paragraph 7 above); and in February 2021, when replying to the Court’s request for information (see paragraphs 5 and 6 above).
13. The Court notes that the applicant companies, represented by a legal counsel, have not furnished any plausible explanation for their failure to inform the Court in a timely manner about the above important developments. Having regard to the importance of the information at issue for the proper determination of the present case, the Court finds that the applicant companies’ conduct was contrary to the purpose of the right of individual petition, as provided for in Article 34 of the Convention.
14. In view of the above, the application must accordingly be rejected as abusive, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 2 May 2025.
Martina Keller Gilberto Felici
Deputy Registrar President