AZIM DENIZCILIK TICARET VE SANAYI LIMITED SIRKETI v. UKRAINE
Inadmissible
Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva
The applicant, Azim Denizcilik Ticaret Ve Sanayi Limited Sirketi, is a Turkish company with its office in Ereğli-Zonguldak, Turkey. It was represented before the Court by Mr Y. Efe, a lawyer practising in EreğliZonguldak. The respondent Government were represented by Mr Y. Zaytsev, their Agent. The Turkish Government had exercised its right to intervene (Article 36 § 1 of the Convention and Rule 44 § 1 (b) of the Rules of Court). The facts of the case, as submitted by the parties, may be summarised as follows. At the material time the applicant company owned a ship, M/V Sevgin. On 28 November 2001 it was hired to carry goods of the Ukrainian Company V. from Izmayil, a Ukrainian port, to Bartin, a Turkish port. For this purpose on 13 December 2001 the applicant's ship arrived at Izmayil port. According to the applicant, the ship was damaged when mooring. After the cargo had been loaded on the ship, the independent inspectors revealed that the cargo had been damaged because of water leaking through a hole in the ship. On 28 January 2002 the V. company instituted proceedings in the Izmayil Town Court (the “Town Court”) against the applicant, seeking compensation for the damaged cargo. On 31 January 2002, at V.'s request, the court impounded the applicant's ship to secure the claim. In May 2002 the Town Court adjourned the hearings on two occasions due to the parties' failure to appear before it. On 6 June 2002 the Town Court allowed V.'s claim and awarded it 981,187.59 Ukrainian hryvnyas (UAH) in damages and UAH 1,700 in costs and expenses. On 13 June 2002 the Town Court adopted a decision specifying that the judgment of 6 June 2002 could be enforced by way of selling the impounded ship. According to the applicant company, it was only notified about the proceedings at this stage. On 19 June 2002 the State Bailiffs' Service instituted enforcement proceedings and on 21 June 2002 attached the applicant company's ship. On 22 October 2002 the Odessa Regional Court of Appeal, ruling on the applicant company's appeal, upheld the judgment of 6 June 2002 but quashed the decision of 13 June 2002, which had been adopted in the absence of the parties. The matter was remitted back to the Town Court but it is not clear from the available documents whether any decision has been taken on it. On 21 November 2002, at the end of the one-month time-limit for lodging of appeals against the court decisions mentioned in the preceding paragraph, the applicant company appealed in cassation. On 25 November 2002 the Illichivskyy District Court of Odessa quashed the bailiffs' decisions of 19 and 21 June 2002, finding that the enforcement proceedings in the applicant company's case should have been carried out by the Turkish authorities in accordance with the relevant treaty between Ukraine and Turkey. It further ordered that the applicant company should not be prevented by anybody from using its ship. However, on 2 December 2002, when the crew attempted to board the ship, the bailiffs' officers barred them access. On 28 December 2002, at the applicant company's request, the Prymorskyy District Court of Odessa prohibited the public sale of the applicant's ship. On 29 April 2003 the Odessa Regional Court of Appeal dismissed an appeal by the bailiffs against this decision. On 22 May 2003 the Town Court, for the purposes of partial enforcement of the judgment of 6 June 2002, acknowledged V.'s property right over the disputed ship. On 9 June 2003 this decision was enforced. On 21 July 2003 the General Prosecutor's Office informed the applicant that criminal proceedings had been instituted against the bailiffs' officials for abuse of powers. On 18 May 2005 the Supreme Court allowed in part the applicant company's appeal in cassation and quashed the judgments of 6 June and 22 October 2002 as unfounded remitting the case to the Town Court for a fresh examination. On 11 July 2005 the Town Court took over the case. Between 12 August and 28 November 2005 four hearings were adjourned because of, inter alia, the applicant company's relevant requests. On the last-mentioned date the applicant company counterclaimed, seeking damages from V. for the loss of its ship. It also requested to adjourn the hearing. For this reason, on 29 November 2005 the Town Court, having allowed the request, adjourned the hearing till 23 December 2005. On 23 December 2005 the hearing was adjourned till 31 March 2006 due to the applicant company's failure to attend it as its representative was ill. On 31 March 2006 the Town Court awarded V. damages in the amount of UAH 314,218.72 and rejected the applicant company's counterclaim as unsubstantiated. On 27 April 2006 the applicant company appealed. On 19 October 2006 the Odessa Regional Court of Appeal upheld the judgment. On 19 December 2006, at the end of the two-month time-limit for lodging of appeals against the above court decisions, the applicant company appealed in cassation. It did not mention in its cassation appeal that it had not had sufficient time to prepare for the hearings of the case. On 21 January 2008 the Kharkiv Regional Court of Appeal, acting as a court of cassation, dismissed the appeal and upheld the lower courts' decisions.