FIFTH SECTION
DECISION
Application no. 9215/02
by the SUZIRYA
against Ukraine
The European Court of Human Rights (Fifth Section), sitting on 13 November 2006 as a Chamber composed of:
MrP. Lorenzen, President,
MrsS. Botoucharova,
MrK. Jungwiert,
MrV. Butkevych,
MrsM. Tsatsa-Nikolovska,
MrR. Maruste,
MrM. Villiger, judges,
and Mrs C. Westerdiek, Section Registrar,
Having regard to the above application lodged on 25 January 2002,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
THE FACTS
The applicant, the “Suzirya”, is a Ukrainian company registered in the village of Dorotysche, in the Kovelsky district of the Volyn region, Ukraine. The respondent Government were represented by their Agent, Mr Y. Zaytsev.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant instituted civil proceedings before the Volyn Regional Arbitration Court against the “Ukrayina” agricultural limited company (the “UALC”), seeking to recover assets which had allegedly been unlawfully transferred from the ownership of the applicant’s legal predecessor, the “Niva” collective farm (the “NCF”). On 19 March 2001 the Volyn Regional Arbitration Court allowed the applicant’s claims and ordered the UALC to return the disputed property to the applicant.
On 8 June 2001 the Deputy President of the Volyn Regional Arbitration Court initiated “supervisory review” proceedings upon the UALC’s request and, in a Resolution, upheld the judgment of 19 March 2001, finding that the UALC’s claims were unsubstantiated and that the property at issue belonged to the applicant. The President of the court also quashed a ruling of 12 April 2001 which had suspended the enforcement of the judgment of 19 March 2001.
On 19 June 2001 the UALC lodged complaints with the Higher Arbitration Court seeking to review the judgment of the Volyn Regional Arbitration Court of 19 March 2001, and the Resolution of this court on 8 June 2001, in the course of “judicial review proceedings”.
According to the stamp of the Volyn Regional Arbitration Court, the complaint of 19 June 2001 was received by it on 22 June 2001. The Higher Arbitration Court received the complaint on 25 June 2001. The State court tax was paid by the UALC on 27 June 2001. The complaint to review the case in the course of supervisory review proceedings of 19 June 2001 was sent to the applicant by the UALC on 27 June 2001. On 17 July 2001 the President of the Volyn Regional Commercial Court (the former Arbitration Court) informed the applicant that case-file no. 7/77-56 had been sent to the Higher Arbitration Court on 27 June 2001 from the Volyn Regional Court.
On 27 June 2001 the Higher Arbitration Court, in the absence of the parties and being composed of two judges - G.M.P., its Deputy President, and S.V.V. - quashed the judgment of 19 March 2001 and the Resolution of 8 June 2001, and rejected the applicant’s claims in full.
The applicant appealed in cassation to the Supreme Court.
On 27 November 2001 the Commercial Chamber of the Supreme Court, composed of seven judges, refused to initiate cassation proceedings, finding no grounds for them. It also rejected the UALC’s appeal in cassation as it did not concern points of law.
COMPLAINTS
The applicant complained under Article 6 § 1 of the Convention about the unfairness of the proceedings. In particular, the applicant stated that the Higher Arbitration Court was not a tribunal established by the law, within the meaning of Article 6 § 1 of the Convention. Moreover, the applicant alleged that it lacked independence and impartiality in reviewing the applicant’s claims and that the principle of equality of arms was not respected.
The applicant further complained that the domestic courts failed to protect its property rights and unlawfully interfered with their enjoyment by the applicant. It alleged an infringement of Article 1 of Protocol No. 1 to the Convention.
THE LAW
Notice of the application was given to the Government on 22 September 2005. The Government submitted their observations on the admissibility and merits of the applicant’s application on 21 December 2005. The applicant has failed to submit observations in reply. Moreover, it has failed to respond to the communications from the Registry of the Court, the last of which was a registered letter dated 3 July 2006 warning the applicant of the possibility that its case might be struck out of the Court’s list if it failed to respond. The applicant company received this letter on 11 July 2006. No reply was received to it.
Having regard to Article 37 § 1 (a) of the Convention, the Court concludes that the applicant does not intend to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the further examination of this case. Accordingly, the application of Article 29 § 3 of the Convention to the case should be discontinued.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Claudia WesterdiekPeer Lorenzen
RegistrarPresident
Full & Egal Universal Law Academy