BORISENKO AND YEREVANYAN BAZALT LTD v. ARMENIA
Inadmissible
Alvina Gyulumyan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra
The first applicant, Mr Mikhail Borisenko, is an Armenian national who was born in 1950 and lives in Yerevan. The second applicant, Yerevanyan Bazalt Ltd, is a private company which was set up in 1995 and has its registered office in Yerevan (hereafter, the applicant company). They were represented before the Court by Mr A. Grigoryan, a lawyer practising in Yerevan. s, may be summarised as follows. The first applicant is the director of the applicant company. The latter’s capital was divided in various proportions among seven stakeholders, including the first applicant and a third person, Y.K. On 1 October 2003 Y.K. passed away. By the decisions of the applicant company’s general assembly of 26 May and 2 June 2004 Y.K.’s share in the company’s capital was found to constitute five per cent and the transfer of this share to Y.K.’s successors was approved. On 8 April 2007 Y.K.’s successors instituted proceedings in the Commercial Court (ՀՀ տնտեսական դատարան) against the applicants and other stakeholders seeking to annul the above decisions, claiming that Y.K.’s share in the applicant company’s capital amounted to 20 per cent. On 16 July 2007 the Commercial Court granted the claim. On 31 July 2007 the applicants’ lawyer lodged an appeal on points of law with the Court of Cassation (ՀՀ վճռաբեկ դատարան). In his appeal the lawyer argued that a number of provisions of substantive and procedural law had been violated. As regards the admissibility grounds required under Article 231.2 § 1 of the Code of Civil Procedure (CCP), the lawyer did not indicate any of those grounds, arguing instead that this provision lacked legal certainty. By a decision of 17 August 2007 the Court of Cassation decided to return the applicants’ appeal on the ground that they had not indicated any of the grounds required under Article 231.2 § 1 of the CCP. A copy of this decision was sent to the applicants on 11 October 2007. On 27 November 2005 amendments were adopted to the Armenian Constitution which entered into force on 6 December 2005. As a result of these amendments the Court of Cassation was entrusted with a new role, namely to ensure the uniform application of the law. The relevant provisions of the amended Constitution read as follows: “...The highest judicial instance in Armenia, except for matters falling within constitutional jurisdiction, is the Court of Cassation which is called upon to ensure the uniform application of the law. ...” In order to implement the above constitutional amendments, a substantial reform was introduced to the Armenian procedural law. As part of this reform substance-based admissibility requirements were introduced in respect of appeals on points of law lodged with the Court of Cassation. The relevant provisions of the CCP, as amended on 7 July and 25 December 2006 and 21 February 2007 and in force at the material time, read as follows: Article 221.4: Entry into force of a judgment of the Commercial Court “1. A judgment adopted by the Commercial Court following the examination of a case at first instance shall enter into force 15 days after delivery. 2. If an appeal on points of law is lodged against a judgment which has not entered into force, the judgment shall not enter into force until a decision is taken on admitting the appeal by the Court of Cassation. ...” “Judgments and decisions of the Commercial Court can be contested through cassation proceedings...” Article 222: Review of judicial acts through cassation proceedings “1. Judgments of ... the Commercial Court which have not entered into force can be reviewed through cassation proceedings based on the appeals brought by persons indicated in Article 223 of this Code. ...” Article 223: Persons entitled to bring appeals on points of law “1. The parties to the proceedings and persons who were not parties to the proceedings but whose rights and obligations were affected by a judgment are entitled to lodge an appeal on points of law against a judgment of the Commercial Court which has not entered into force. ...” “1. Appeals on points of law lodged against judgments of ... the Commercial Court which have not entered into force are examined by the Civil Chamber of the Court of Cassation (hereafter, Court of Cassation). 2. The objective of the Court of Cassation’s activity is to ensure the uniform application of the law and its correct interpretation, and to promote the development of the law.” “An appeal on points of law can be lodged on the ground of ... a substantive or a procedural violation of the parties’ rights...” “...2. An appeal on points of law against a judicial act adopted by the Commercial Court on cases examined at first instance can be lodged ... before the entry into force of the judicial act. ...” “1. An appeal on points of law must contain (1) the name of the court to which the appeal is addressed; (2) the appellant’s name; (3) the name of the court that has adopted the judgment, the case number, the date on which the judgment was adopted, the names of the parties, and the subject-matter of the dispute; (4) the appellant’s claim, with reference to the laws and other legal acts and specifying which provisions of substantive or procedural law have been violated or wrongly applied ...; (4.1) arguments required by any of the subparagraphs of paragraph 1 of Article 231.2 of this Code; [and] (5) a list of documents enclosed with the appeal. 2. An appeal on points of law shall be signed by the appellant. 3. A document certifying payment of the State fee shall be attached to the appeal.” “1. An appeal on points of law shall be returned if it does not comply with the requirements of Article 230 and paragraph 1 of Article 231.2 of this Code...” “1. The Court of Cassation shall admit an appeal on points of law, if (1) the judicial act to be adopted on the given case by the Court of Cassation may have a significant impact on the uniform application of the law, or (2) the contested judicial act contradicts a judicial act previously adopted by the Court of Cassation, or (3) a violation of the procedural or the substantive law by the lower court may cause grave consequences, or (4) there are newly discovered circumstances. 2. The Court of Cassation sitting as a panel composed of the President of the Court of Cassation and the judges of the chamber shall decide whether appeals on points of law lodged with the Court of Cassation comply with the requirements of Article 230 of this Code and paragraph 1 of this article and should be admitted. 3. An appeal on points of law shall be admitted if at least three of the judges of the Court of Cassation vote in favour of admitting it. This decision of the Court of Cassation is not subject to appeal. ...”