Communicated on 28 June 2017
FOURTH SECTION
Application no. 11925/09
GENERALNYY BUDIVELNYY MENEDZHMENT
against Ukraine
lodged on 16 February 2009
STATEMENT OF FACTS
The applicant company, Generalnyy Budivelnyy Menedzhment, is a Ukrainian company, with its corporate seat in Odesa.
A. The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
1. First set of proceedings (legality of the sale contract).
On 2 December 2004 the applicant company entered into a sale contract with the Odesa Oblspozhyvspilka enterprise, under which the applicant company purchased from it the Budservis enterprise, a corporate housing company, pursuant to the property certificates, registration certificates and a delivery‑acceptance act (акт приймання-передачі). The sale contract specified neither the exact number of the buildings in question nor their addresses.
On 9 December 2004 the parties signed two delivery-acceptance acts specifying the locations and characteristics of the buildings.
Since the sale contract had not been notarised, the applicant company lodged a claim with the court, seeking to declare it valid.
On 20 December 2005 the Commercial Court of the Odesa Region declared the sale contract valid.
On 25 June 2007 the Commercial Court of the Odesa Region allowed an application for an interpretation of that decision and clarified that the applicant company had acquired the title to ten buildings, citing their addresses.
On 27 July 2007 Odesa Oblspozhyvspilka lodged an appeal against the interpretative decision. On 8 August 2007 the Court of Appeal of Odesa Region declined to hear the appeal because an interpretative decision could not be appealed against.
On 17 October 2007 Odesa Oblspozhyvspilka lodged an appeal against the decision of 20 December 2005 in the light of the interpretative decision of 25 June 2007, requesting the renewal of the time-limit for lodging an appeal.
On 22 October 2007 the Odesa Commercial Court of Appeal granted the renewal of the time-limit for lodging an appeal.
On 23 June 2008 the Odesa Commercial Court of Appeal partly allowed the appeal and quashed the decision of 20 December 2005 in view of the interpretative decision of 25 June 2007; it then closed the proceedings, having found that it had no jurisdiction, as the owners of the disputed buildings were physical persons and the dispute should be heard by the courts of general jurisdiction. The applicant company lodged a cassation appeal.
On 23 October 2008 the Higher Commercial Court of Ukraine quashed the decision of 23 June 2008, finding that the appellate court had unlawfully renewed the time-limit for lodging the appeal, but remitted the case to the first-instance court for re-examination.
On 15 June 2009 the Commercial Court of the Odesa Region dismissed the applicant company’s claim, finding that, since the sale contract had not been notarised, it failed to comply with the requirements of the law and was therefore null and void. In addition, the court referred to the decision of 15 June 2007 rendered by the Commercial Court of the Odesa Region in a case brought by the Vysokyy Housing Cooperative against the applicant company and Odesa Oblspozhyvspilka (case no. 9/69-07-1394), which had partly invalidated the sale contract. On 4 June 2008 the Higher Commercial Court of Ukraine upheld the decision of 15 June 2007.
On 25 August 2009 the Odesa Commercial Court of Appeal upheld the decision of the first-instance court.
On 17 December 2009 the Higher Commercial Court of Ukraine upheld the decisions of the lower courts.
On 11 March 2010 the Supreme Court of Ukraine refused the applicant company’s request for it to review the above decisions.
2. Second set of proceedings (title to the building situated at 6 Okruzhna Street, Odesa).
On 21 September 2011 the applicant company sent the Court another application form containing new facts and complaints relating to the sale contract.
In February 2006 the applicant company lodged a claim with the court against the Odesa Oblspozhyvspilka enterprise, contesting the enterprise’s title to the building situated at 6 Okruzhna Street, Odesa.
On 10 March 2006 the Commercial Court of the Odesa Region allowed the claim.
On 12 October 2007 the Commercial Court of the Odesa Region allowed the request of Mr Zh. that he be admitted to the proceedings as a third person. It then it then re-heard the case in the light of newly discovered circumstances and found that the disputed building had never been in the ownership of any legal person and quashed the decision of 10 March 2006, dismissing the claim in full.
On 9 October 2008 the Higher Commercial Court of Ukraine quashed the decision of 12 October 2007 and remitted the case to the same court for re-consideration.
On 7 November 2008 the Commercial Court of the Odesa Region refused the request of Mr Zh. for it to re-examine the decision of 10 March 2006 in the light of newly discovered circumstances.
On 18 October 2010 the Odesa Commercial Court of Appeal refused the request of Mr Zh. for the renewal of the time-limit for lodging an appeal against the decision of 10 March 2006.
On 4 November 2010 the Odesa Commercial Court of Appeal allowed two requests of Ms Zh.: for the renewal of the time-limit for lodging an appeal against the decision of 10 March 2006, and for her and Mr Zh. to be admitted to the proceedings as third persons without their lodging a separate claim. When considering the request for the renewal of the time-limit for lodging an appeal the court examined and rejected the applicant company’s arguments contesting that request.
On 23 November 2010 the Odesa Commercial Court of Appeal quashed the decision of 10 March 2006, dismissing the applicant company’s claim in full.
On 21 March 2011 the Higher Commercial Court of Ukraine upheld the decision of the appellate court.
B. Relevant domestic law
At the time of the facts of the case, the Code of Commercial Procedure provided:
Article 91
“Parties have the right to lodge an appeal and a prosecutor has the right to lodge an application for leave to appeal against a decision of a commercial court that has not entered into force.
Such an appeal or application for leave to appeal shall be lodged through the first-instance court that adjudicated the case.
The first-instance court shall transfer the appeal or application for leave to appeal, together with the relevant case-file, to the relevant appellate court within five days of the moment of its receipt.”
Article 93
“The appeal or application for leave to appeal shall be lodged within ten days of the moment at which the decision was adopted by the local commercial court ...
The time-limit for lodging the appeal or application for leave to appeal may be renewed within three months of the day of the adoption of the decision by a local commercial court.”
COMPLAINT
The applicant company complains under Article 6 § 1 of the Convention that in the two set of civil proceedings described above the courts overturned their final decisions given in its favour, in breach of the principle of legal certainty.
QUESTION TO THE PARTIES
1. Was there a breach of the applicant company’s rights under Article 6 § 1 of the Convention as a result of the reconsideration of the final decision of 20 December 2005 concerning the validity of the sale contract and the decision of 10 March 2006 concerning title to the building situated at the address 6 Okruzhna Street, Odesa?
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