Communicated on 22 February 2018
FIFTH SECTION
Application no. 250/10
KORONA-SERVIS, TOV
against Ukraine
lodged on 25 September 2009
STATEMENT OF FACTS
The applicant, Korona-Servis, Tov (“the applicant company”), is a privately-owned company registered in Ukraine.
The circumstances of the case
The facts of the case, as submitted by the applicant company, may be summarised as follows.
Between 1998 and 2003 the applicant company rented premises from the local authorities. On 2 September 2003 the rental agreement was terminated and the premises were sold by auction to a third party; the applicant company was offered compensation in respect of the modernisation of the premises undertaken by the applicant company while it had been renting the premises. The amount of compensation 1,030,178 hryvnias (UAH) – around 32,230 euros (EUR) at the material time) was calculated on the basis of an appraisal of the applicant company’s property, on the basis of its property inventory files. The applicant company, disagreeing with the content of the relevant property inventory files, instituted proceedings before the domestic courts against the local Bureau of Technical Inventory seeking their invalidation.
1. Proceedings before the commercial courts
On 11 September 2008 the applicant company instituted proceedings with the commercial courts seeking the invalidation of the property inventory files. On 17 September 2008 the Chernigiv Regional Commercial Court refused to examine the merits of the applicant company’s case on the grounds that it had no subject-matter jurisdiction over it. After an appeal by the applicant company, on 9 December 2008 the Kyiv Commercial Court of Appeal upheld the above-mentioned decision. After a further appeal by the applicant company, on 4 March 2009 the Higher Commercial Court of Ukraine upheld the above-mentioned decision as well. On 30 July 2009 the Supreme Court of Ukraine declined to examine an application lodged by the applicant company for review of its case.
2. Administrative proceedings
On 25 September 2008 the applicant company lodged the same claim (that is to say it instituted proceedings seeking the invalidation of the property inventory files) with the administrative courts. On 28 October 2008 the Chernigiv Circuit Administrative Court declined to examine the merits of the applicant company’s claim, ruling that the case was to be examined in civil proceedings. Following an appeal by the applicant company, on 11 November 2009 the Kyiv Administrative Court of Appeal quashed the above-mentioned decision and remitted the case to the first-instance court for fresh examination. On 11 December 2009 the same first-instance court terminated the proceedings in respect of the applicant company’s claim on the grounds that it should be examined in civil proceedings.
3. Civil proceedings
On 29 October 2008 the applicant company instituted proceedings before civil courts in respect of the same claim. On 6 November 2008 the Novozavodskyy District Court of Chernigiv declined to examine the merits of the applicant company’s civil claim. In particular, the court argued that it should be examined in other proceedings, not specifying in which. On 16 January 2009, following an appeal by the applicant company, the Chernigiv Regional Court of Appeal upheld the above-mentioned decision. On 27 March 2009 the Supreme Court of Ukraine upheld the above‑mentioned decision.
COMPLAINTS
The applicant company complains under Articles 6 § 1 and 13 of the Convention about the failure of the domestic courts to examine the merits of its claim, thus depriving it of its right of access to court.
The applicant company further complains under Article 1 of Protocol No. 1 to the Convention of interference with its property rights by virtue of the inadequate amount of compensation for the premises’ modernisation which had been calculated on the basis of allegedly incorrect property inventory files and which could not be challenged by the applicant company on account of its lack of access to domestic courts.
QUESTIONS
1. Has there been a violation of the applicant’s right of access to a court under Article 6 § 1 of the Convention in respect of the termination of the proceedings in its case on the grounds that the domestic courts had no subject-matter jurisdiction over it?
2. Did the refusal of the domestic courts to examine the merits of the applicant’s claims impair its right to the peaceful enjoyment of the possessions, as secured by Article 1 of Protocol No. 1 to the Convention? In particular, did it impose on the applicant a disproportionate burden, contrary to the right to peaceful enjoyment of its possessions?
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