Communicated on 3 April 2019
FIFTH SECTION
Application no. 53760/10
Mayya Volodymyrivna DUBYNYUK
against Ukraine
lodged on 10 September 2010
STATEMENT OF FACTS
The applicant, Ms Mayya Volodymyrivna Dubynyuk, is a Ukrainian national who was born in 1964 and lives in Olyka.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
From 18 to 24 April 2008 the applicant, who was a shareholder in a closed joint-stock company, B. (“the CJSC B.”), concluded twelve sale and purchase contracts with other shareholders of that company for the sale of 3,234 shares.
On 5 September 2008 D., another shareholder in the CJSC B., initiated twelve sets of court proceedings against the applicant. Relying on his pre‑emptive purchase rights as a shareholder under domestic law, he requested that the right to purchase the shares under the disputed contracts be transferred to him.
On 16 April 2009 the Sevastopol City Commercial Court allowed D.’s claim in all twelve cases, finding that his pre-emptive right to purchase the shares had been breached, and that he should be entitled to have the right to purchase the shares transferred to him. The court ordered that D. was to pay the applicant the sum she had originally paid for the shares by way of consideration.
The applicant appealed against the decisions in all twelve cases. It appears, however, from the documents she has filed with the Court that she maintained her appeals in respect of only five of them.
1. Proceedings relating to cases nos. 5020-3/112-12/533-5/021 and 5020-3/113-12/534-5/022
On 20 October 2009 the Sevastopol Commercial Court of Appeal upheld the decisions of the first-instance court of 16 April 2009 in two of those cases, namely cases nos. 5020-3/112-12/533-5/021 and 5020‑3/113‑12/534‑5/022.
The applicant lodged a cassation appeal. On 24 December 2009 the Higher Commercial Court of Ukraine upheld the decisions of the lower courts.
The applicant appealed to the Supreme Court of Ukraine. On 11 March 2010 the Supreme Court of Ukraine refused to open cassation proceedings in either case, upholding the finding of the lower courts that D.’s pre‑emptive rights had been breached.
2. Proceedings relating to cases nos. 5020-3/118-12/539-5/027, 5020‑3/119-12/540-5/028 and 5020-3/122-12/543-5/031
On 29 October 2009 the Sevastopol Commercial Court of Appeal upheld the decisions of the first-instance court of 16 April 2009 in the remaining three cases, namely cases nos. 5020-3/118-12/539-5/027, 5020‑3/119‑12/540-5/028 and 5020-3/112-12/543-5/031.
The applicant lodged a cassation appeal. On 8 February 2010 the Higher Commercial Court of Ukraine upheld the decisions of the lower courts.
The applicant lodged an appeal with the Supreme Court of Ukraine. On 20 April 2010 the Supreme Court found in all three cases that the lower courts had misapplied the national law. It remitted the cases to the first‑instance court for fresh consideration, in so far as they concerned the transfer of rights. The Supreme Court interpreted the relevant provisions of the Civil and Commercial Codes and the Law of Ukraine on commercial companies and established that in a situation where a shareholder wished to sell his or her shares, he or she should take into consideration the pre‑emptive rights of other shareholders. However, at the same time, there was no obligation to sell the shares to those other shareholders on an equitable basis. The shareholder was able to choose any purchaser from among the persons who held a pre-emptive right. The court confirmed that a pre-emptive right could be breached in the event that shares were to be sold to a third party, but that other shareholders of the company concerned had not been third parties. The court concluded that D.’s pre-emptive right to purchase the shares had not been breached.
The Sevastopol City Commercial Court rejected the claims on 23 September 2010 (case no. 5020-3/118-12/539-5/027) and 2 September 2010 (cases nos. 5020-3/119-12/540-5/028 and 5020-3/122-12/543-5/031), finding that D.’s pre-emptive right had not been breached.
Appeals against those decisions lodged by D. with the Sevastopol Commercial Court of Appeal were rejected on 4 November 2010, 25 October 2010 and 15 November 2010 respectively.
It appears from the case file that, before the Supreme Court, the presiding judge of the panel (Judge B.) was the same in all five cases, specifically cases nos. 5020-3/112-12/533-5/021, 5020-3/113-12/534-5/022, 5020‑3/118-12/539-5/027, 5020-3/119-12/540-5/028 and 5020‑3/122‑12/543-5/031. Other judges also sat on panels in both groups of cases: Judge V. sat on a panel of three judges in case no. 5020‑3/112‑12/533-5/021 and on a panel of eight judges in cases nos. 5020-3/118-12/539-5/027, 5020-3/119-12/540-5/028 and 5020‑3/122‑12/543-5/031; Judge K. sat on the panel of three judges in case no. 5020-3/112-12/533-5/021 and on the panel of eight judges in cases nos. 5020-3/118-12/539-5/027, 5020-3/119-12/540-5/028 and 5020‑3/122‑12/543-5/031; Judge Ch. sat on the panel of three judges in case no. 5020-3/113-12/534-5/022 and on the panel of eight judges in cases nos. 5020-3/118-12/539-5/027, 5020-3/119-12/540-5/028 and 5020‑3/122‑12/543-5/031.
B. Relevant domestic law
Under Article 319 of the Civil Code of Ukraine of 2003, an owner of property could possess, use and dispose of his or her property at his or her own discretion and was entitled to take any action in connection with his or her property if such action was not in contravention of the law. All owners had to be afforded the same conditions in which to implement their rights.
Article 627 of the same Code provided that parties were free to conclude an agreement, to select the party with whom they would conclude such an agreement and to determine the provisions of the agreement, taking into consideration the requirements of the Code, other acts of civil legislation, customs of business, requirements of rationality and justice.
In accordance with section 28 of the Law of Ukraine of 1991 on commercial companies, as worded at the relevant time, it was possible to purchase a share under a contract concluded with its owner either for a price determined by the parties or for the market price.
Under Article 81 § 3 of the Commercial Code of Ukraine of 2003, as worded at the relevant time, the shareholders of a closed joint-stock company had a pre-emptive right to acquire any shares which other shareholders of that company intended to sell. The Constitutional Court of Ukraine has interpreted this provision as follows (section 1.2 of the operative part of its judgment of 11 May 2005):
“... an owner shall possess, use and dispose of his or her property at his or her own discretion, but when enjoying this right, he or she shall not breach the rights or legally secured interests of citizens, legal persons and society, including the pre-emptive purchase right (which is not absolute) of the shareholders of a closed joint-stock company for the acquisition of shares in that company ...”
COMPLAINT
The applicant complains under Article 6 of the Convention that the Supreme Court of Ukraine reached different conclusions in identical cases, breaching the principle of legal certainty.
QUESTIONS TO THE PARTIES
1. In the light of the applicant’s allegation that the Supreme Court of Ukraine had reached different conclusions in cases that were identical (nos. 5020-3/112-12/533-5/021 and 5020-3/113-12/534-5/022 on the one hand, and nos. 5020-3/118-12/539-5/027, 5020-3/119-12/540-5/028 and 5020-3/122-12/543-5/031 on the other hand), was the applicant’s right to a fair trial under Article 6 § 1 of the Convention infringed?
2. In that connection, did the Ukrainian legal system provide for a mechanism to ensure consistency in the event of conflicting decisions in similar cases? (see, Nejdet Şahin and Perihan Şahin v. Turkey [GC], no. 13279/05, § 49-58, 20 October 2011)
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