FIFTH SECTION
DECISION
Application no. 35093/05
Volodymyr Borysovych DRAGUN
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 8 October 2013 as a Committee composed of:
Angelika Nußberger, President,
André Potocki,
Aleš Pejchal, judges,
and Stephen Phillips, Deputy Section Registrar,
Having regard to the above application lodged on 16 September 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Volodymyr Borysovych Dragun, is a Belarusian national who was born in 1949 and lives in Dnipropetrovsk. He was represented before the Court by Mr I. Bozhok, a lawyer practising in Dnipropetrovsk.
2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr N. Kulchytskyy.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicant is one of the founders and the majority shareholder of a company, Treidingbudinvest Ltd (“company T.”), registered in Ukraine.
1. Proceedings instituted by company T.
5. In October 1997 company T. instituted proceedings in the Dnipropetrovsk Regional Arbitration Court against a State company, P. (“the debtor”), claiming that the latter had failed to deliver 95,000 tonnes of coal to it.
6. On 28 November 1997 the Dnipropetrovsk Regional Arbitration Court rejected the claim as unsubstantiated.
7. On 2 March 1998 the Deputy President of the same court rejected a request for supervisory review submitted by company T. and upheld the decision of 28 November 1997.
8. On 21 April 1998 the Higher Arbitration Court adopted a resolution by which it granted the request for supervisory review by company T., quashed the decision of 28 November 1997 and the resolution of 2 March 1998, and ordered that the debtor deliver 95,000 tonnes of coal to company T. The court based its conclusions, inter alia, on an agreement of 26 January 1995 confirming the debtor’s obligation.
9. The resolution became final and enforcement proceedings were instituted.
10. On 9 April 1999 the Higher Arbitration Court changed the manner of enforcement of the resolution of 21 April 1998 and specified that the debtor, instead of delivering the coal, should pay the amount of 10,144,100 Ukrainian hryvnias (UAH) to company T.
2. The prosecutor’s request for review of the case in the light of newly‑discovered circumstances
11. On 28 October 1999 the Deputy General Prosecutor requested the Higher Arbitration Court to review the resolution of 21 April 1998 in the light of newly-discovered circumstances, namely, that the director of the debtor allegedly never signed the agreement of 26 January 1995.
12. On 10 December 1999 the Higher Arbitration Court granted the request and quashed the resolution of 21 April 1998, noting that there had not been appropriate evidence that the agreement of 26 January 1995 had been concluded. It further upheld the decision of 28 November 1997 and the resolution of 2 March 1998 taken by the Dnipropetrovsk Regional Arbitration Court.
3. Company T.’s request for review of the case in the light of newly‑discovered circumstances
13. On 22 July 2002 company T. requested the Dnipropetrovsk Regional Commercial Court to review the case in the light of newly-discovered circumstances. It submitted an expert conclusion of 27 June 2002 that the agreement of 26 January 1995 had in fact been signed by the director of the debtor.
14. On 15 October 2002 the Dnipropetrovsk Regional Commercial Court (as the Dnipropetrovsk Regional Arbitration Court was renamed) rejected the request of company T. as unfounded.
15. On 9 January 2003 the Higher Commercial Court (as the Higher Arbitration Court was renamed) quashed the decision of 15 October 2002 and remitted the case to the Dnipropetrovsk Regional Commercial Court for fresh consideration.
16. On 31 March 2003 the Dnipropetrovsk Regional Commercial Court granted the request of company T. and found that the agreement of 26 January 1995 had been signed by the debtor. It therefore quashed the decision of 28 November 1997 and the resolutions of 2 March 1998 and 10 December 1999, and upheld the resolution of 21 April 1998.
17. On 18 June 2003 the Dnipropetrovsk Commercial Court of Appeal upheld the decision of 31 March 2003.
18. On 23 October 2003 the Higher Commercial Court upheld the resolution of 18 June 2003. The debtor lodged cassation appeal with the Supreme Court.
19. On 3 February 2004 the Supreme Court held a hearing in the presence of Mr I. Bozhok, who was acting as the representative of company T. Having examined the matter, the Supreme Court found that company T.’s request for review of the case in the light of newly-discovered circumstances had been unfounded. It therefore quashed the resolution of the Higher Commercial Court of 23 October 2003, the resolution of the Dnipropetrovsk Commercial Court of Appeal of 18 June 2003, the decision of the Dnipropetrovsk Regional Commercial Court of 31 March 2003, and the resolution of the Higher Commercial Court of 9 January 2003, and upheld the decision of 15 October 2002 taken by the Dnipropetrovsk Regional Commercial Court.
20. According to the applicant, it was only on 19 July 2005 that company T. could examine the Supreme Court’s resolution of 3 February 2004.
B. Relevant domestic law
21. Article 111-20 of the Code of Commercial Procedure, as worded at the relevant time, provided that a copy of the Supreme Court’s resolution was to be sent to the parties within five days of the date of its adoption.
22. The other relevant domestic law is summarised in the judgment of Sokurenko and Strygun v. Ukraine (nos. 29458/04 and 29465/04, §§ 10-12, 20 July 2006).
COMPLAINTS
23. The applicant complained under Article 6 § 1 of the Convention that on 10 December 1999 the Higher Arbitration Court had quashed its resolution of 21 April 1998 unfairly, alleging that it had been done at the request of the Deputy Prosecutor General and in violation of the principle of legal certainty.
24. The applicant complained under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 that the resolution of the Higher Arbitration Court of 21 April 1998 had not been enforced.
25. The applicant complained that by the resolution of 3 February 2004 the Supreme Court had exceeded its competence in upholding a decision of the first-instance court, no such course of action being provided by the domestic law.
26. The applicant complained under Article 6 § 1 of the Convention that the domestic court proceedings concerning the claim of company T. had been too lengthy.
27. The applicant complained that there had been a violation of Article 13 of the Convention on account of the outcome of the impugned proceedings.
28. The applicant complained under Article 14 of the Convention that the unfavourable outcome of the proceedings in question was the result of discrimination against him by the domestic authorities on the ground of his nationality.
29. The applicant complained under Article 1 of Protocol No. 1 that as a result of the quashing of the resolution of the Higher Arbitration Court of 21 April 1998 and the decision of the Dnipropetrovsk Regional Commercial Court of 31 March 2003 company T. was prevented from receiving property.
THE LAW
A. The Government’s objections as to the admissibility of the application
1. Victim status
30. Referring to the Court’s case-law (see Agrotexim and Others v. Greece, 24 October 1995, §§ 59-72, Series A no. 330‑A), the Government submitted that the applicant could not claim to be a victim of the alleged violations because the proceedings in question concerned the determination of company T.’s rights.
2. Six-month rule
31. As regards the applicant’s complaints relating to the prosecutor’s request for review of the case in the light of newly-discovered circumstances, the Government noted that the Higher Arbitration Court’s resolution of 10 December 1999 was a final decision and that the six-month period had started to run from the date of that decision. Meanwhile, the subsequent request by company T. for review of the case by way of extraordinary remedy could not interrupt the running of the six-month period in respect of this part of the application.
32. As regards the applicant’s complaints relating to the subsequent proceedings which ended with the Supreme Court resolution of 3 February 2004, the Government stressed that company T. had been aware of that resolution on the date of its adoption, because its representative had been present at the hearing before the Supreme Court. The Government further argued that on 22 April 2004 another representative of company T. had successfully applied to the first-instance court seeking permission to study the case file. The Government presented a copy of the relevant application to the first-instance court. The Government considered that these facts suggested that company T. was aware of the Supreme Court’s resolution of 3 February 2004 much earlier than 19 July 2005, and that the applicant’s submission in that regard had been misleading. Given that the application to the Court was submitted on 16 September 2005, the six-month rule was not complied with.
B. The applicant’s submissions on the admissibility of the application
1. Victim status
33. The applicant argued that he was a victim of the alleged violations because at the time of application to the Court he owned 95 % of the shares in company T. The domestic proceedings in question concerned both his and company T.’s rights. In his submissions of 23 April 2010 he requested that company T. be admitted to the case as the second applicant.
2. Six-month rule
34. The applicant considered that there were no grounds to calculate the six-month rule from 10 December 1999 in respect of his complaints, since the domestic proceedings terminated on 3 February 2004.
35. He further maintained that it was only on 19 July 2005 that company T.’s representative examined the Supreme Court’s resolution of 3 February 2004. He referred to the representative’ application of 19 July 2005, a copy of which had been earlier submitted to this Court.
36. As regards the Government’s allegation that company T.’s representative (Mr I. Bozhok) was present at the hearing before the Supreme Court on 3 February 2004, the applicant responded that this fact did not mean that a copy of the resolution had been received and could be properly examined. Moreover, the applicant argued that company T. had not validly issued the power of attorney to the representative, and that the Supreme Court had failed to verify the validity of that power of attorney when admitting the representative to the hearing.
37. As regards the Government’s argument that on 22 April 2004 another representative of company T. had examined the case file, the applicant submitted that he did not know that individual and argued that that individual had had no authority to act on his behalf or on behalf of company T. Moreover, the copy of the relevant application did not bear a signature of that person.
38. The applicant further submitted that under Article 111-20 of the Code of Commercial Procedure the Supreme Court was obliged to send a copy of its resolution of 3 February 2004 within five days. However, that obligation was not met.
C. The Court’s assessment
39. The Court does not need to deal with the Government’s objection as to the applicant’s victim status because the application is in any event inadmissible in view of the following reasons.
1. Complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 related to the prosecutor’s request for review of the case in the light of newly-discovered circumstances
40. In its case-law the Court has viewed the quashing of a final judgment as an instantaneous act which does not create a continuing situation, even if it entails the reopening of proceedings. In the absence of an effective remedy, the Court has considered the very act of quashing of a final judgment to trigger the start of the six-month time-limit for lodging a related complaint with the Court (see Agrokompleks v. Ukraine, no. 23465/03, § 110, 6 October 2011).
41. The Court has also ruled that in cases where proceedings are reopened or a final decision is reviewed, the running of the six-month period in respect of the initial set of proceedings or the final decision will be interrupted only in relation to those Convention issues which served as a ground for such a review or reopening and were the subject of examination before the extraordinary appeal body (see Sapeyan v. Armenia, no. 35738/03, § 24, 13 January 2009).
42. In the light of the above principles, the Court considers that to the extent that the applicant complained of a violation of the Convention on account of the extraordinary review of the case at the request of the prosecutor (which resulted in the Higher Arbitration Court’s resolution of 10 December 1999 quashing the resolution of 21 April 1998), those Convention issues should have been either raised at the domestic level or – if there was no effective remedy to exhaust – submitted to the Court within the six-month time-limit from the date of the impugned unfavourable resolution of 10 December 1999. This was not done, however. Instead, more than two and a half years after the resolution of 10 December 1999 company T. decided to request another extraordinary review of the case in the light of newly-discovered circumstances. It is true that company T.’s request involved consideration of the case on the merits. However, there is no indication that the relevant Convention complaints were ever raised or examined in those extraordinary proceedings. Accordingly, those proceedings have no relevance for the issue of admissibility of the Convention complaints at stake (see Sapeyan, cited above, §§ 25-27).
43. It follows that this part of the application should be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 (a) of the Convention.
2. Complaints under Article 6 of the Convention and Article 1 of Protocol No. 1 related to the Supreme Court resolution of 3 February 2004
44. The Court refers to its well-established case-law that the six-month period runs from the date on which the applicant’s lawyer became aware of the decision completing the exhaustion of the domestic remedies, notwithstanding the fact that the applicant only became aware of the decision later (see Jakelaitis v. Lithuania (dec.), no. 17414/05, 16 December 2008, with further references).
45. The Court notes that company T.’s representative, the same person who is representing the applicant in the proceedings before this Court, attended the hearing before the Supreme Court on 3 February 2004 which ended with the final decision. The Court finds no reason to question the Supreme Court’s conclusion that that person could be admitted as a valid representative of company T. Further, even if that representative had not received a copy of the Supreme Court resolution on that day, there is nothing to suggest that he was not aware of that resolution from the date of its adoption.
46. The Court recalls that where a final decision was served ex officio on the applicant, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from “the date of service of the written judgment”, irrespective of whether the judgment concerned was previously delivered orally (see Worm v. Austria, 29 August 1997, §§ 32-33, Reports of Judgments and Decisions 1997-V). This principle was developed in a case where the written judgement was actually served on the applicant and the difference between the competing dates of oral and written notification of judgment was decisive for the six-month rule. In the present case, however, there is no evidence that company T. was ex officio served with a copy of the final decision, either within the time frame set in Article 111-20 of the Code of Commercial Procedure or later.
47. The Court further reiterates that it is incumbent on an interested party to display special diligence in the defence of his interests and to take the necessary steps to apprise himself of developments in the proceedings (see, among other authorities, Uruci v. Albania (dec.), no. 6491/06, 24 January 2012). It has also ruled that an applicant must show a certain degree of diligence and obtain a copy of the decision deposited with the court registry (see, for example, Çolakoğlu v. Turkey, no. 29503/03, § 28, 20 October 2009). Accordingly, even assuming that company T. had been insufficiently aware of the contents of the Supreme Court resolution of 3 February 2004 on the date of its adoption and had received its copy only on 19 July 2005, not on 22 April 2004, as contended by the Government, the Court finds no excuse for the delay of more than one year and five months in appraising with the written copy of the final decision in the case, and considers that this was due to company T.’s or the applicant’s own negligence.
48. The Court therefore dismisses this part of the application as out of time, pursuant to Article 35 §§ 1 and 4 (a) of the Convention.
3. Remaining complaints
49. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the materials in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
50. It follows that this part of the application must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen PhillipsAngelika Nußberger
Deputy RegistrarPresident
Full & Egal Universal Law Academy