MPP GOLUB v. UKRAINE
Inadmissible
The applicant, MPP “Golub”, is a Ukrainian company that is registered in Ternopil. The company belongs to a private entrepreneur Mr Ivan Mikheyevich Golub, born in 1947 and residing in Ternopil. Since August 1995 the applicant had been making plans for the construction of a building containing 30 apartments on 0,25 hectares of land situated in the village of Zhovtneve, in the Kamyanets-Podilsky District of the Khmelnytsky region. It alleged that it received all the necessary construction permits and concluded an agreement with the PMK-35 company (a private company; “PMK-35”) for construction of this building. On 4 October 1996 the Ternopil Regional Arbitration Court declared null and void the construction contract of 9 August 1995 concluded between the applicant and the PMK-35 (PMK-35 was later reorganised into the construction company “Kamyanets Ltd.”). The applicant alleges that from November 1996 it was allegedly persecuted by the Ukrainian authorities for its attempt to construct the building. Allegedly as a result of this persecution, PMK-35 demolished the foundation of the building it was supposed to construct. In 1996-2001 the applicant was a respondent and / or plaintiff in unsuccessful litigation before different courts about the building. It did not provide a full account of the litigation, and submitted that the only proceedings of which it complains were the proceedings initiated by it on 24 January 2002 before the Khmelnytsky Regional Commercial Court (case no. 6/661). These proceedings were instituted by the applicant against the PMK-35. However, on 14 February 2002 the Khmelnytsky Regional Commercial Court (“Khmelnytsky Court”), changed the respondent to the construction company “Kamyanets Ltd.” (hereinafter the “respondent”) as the successor of PMK-35. The applicant sought restitutio in integrum. In particular, it claimed that, as the respondent had demolished the building’s foundations constructed by PMK-35, it was obliged to rebuild it. On 20 August 2002 the Khmelnytsky Court rejected the applicant’s claims as the events about which the applicant complained dated back to 1996. It therefore considered that they were lodged outside the three-year statutory time-limit for the introduction of civil claims, envisaged by Article 71 of the Civil Code. On 19 November 2002 the L’viv Regional Commercial Court of Appeal rejected the applicant’s appeal as being unsubstantiated and upheld the judgment of 20 August 2002. On 16 March 2003 the Higher Commercial Court quashed the aforementioned judgment of 20 August and the ruling of 19 November 2002 and remitted the case for a fresh consideration to the Khmelnytsky Court. On 5 March 2003 the Khmelnytsky Court ruled that it had jurisdiction over the applicant’s case. In the course of the new proceedings before the Khmelnytsky Court, the applicant asked the court to extend the three-year limitation period for lodging its claims against the respondent. It also requested the court to suspend or temporarily terminate the proceedings in its case in view of the criminal investigation pending against the respondent’s director. It lodged additional claims for compensation against the respondent. Initially, the applicant claimed that the damage amounted to UAH 21, 211.0. Later, it increased its claims to UAH 256,579.89. On 31 March, 15 April and 10 June 2003 the Khmelnytsky Court ordered the applicant to produce substantiation for the amounts it claimed in damages. It also required the applicant to pay the State tax (державне мито) for the introduction of its additional claims. On 23 June 2003 the Khmelnytsky Court rejected all of the applicant’s motions and requests as unsubstantiated. As to the increase in the applicant’s claims, the Khmelnytsky Court stated that the applicant had failed to substantiate or pay the State tax on them. It further decided that the applicant’s claim should be rejected as it was lodged outside the statutory three-year limitation period (Article 71 of the Civil Code). On 11 December 2003 the Zhytomyr Regional Commercial Court of Appeal rejected the applicant’s appeal as unsubstantiated, and upheld the judgment of 23 June 2003. In particular, it referred to Articles 71 and 80 of the Civil Code that envisaged a three-year limitation period for lodging claims for damages. The applicant appealed in cassation directly to the Higher Commercial Court (Вищий Господарський Суд України). On 21 January 2004 the Higher Commercial Court rejected the cassation appeal as it should have been lodged through the first instance or appeal court which had considered the case and where the case file was. The court referred to Article 109 of the Code of Commercial Procedure. On 4 February 2004 the applicant re-lodged its appeal in cassation. On 10 March 2004 the Higher Commercial Court rejected the applicant’s cassation appeal as it was lodged outside the one-month time-limit allowed for the introduction of such appeals (Article 110 of the Code of Commercial Procedure). It also held that the incorrect introduction of the cassation appeal by the applicant does not suspend the one-month time-limit envisaged by Article 110 of the Code of Commercial Procedure. As a result, the cassation appeal was returned to the applicant. On 5 April 2004 the applicant re-lodged its appeal in cassation for the third time. It also requested renewal of the time-limit for the introduction of the cassation appeal. On 6 May 2004 the Higher Commercial Court rejected the applicant’s request to extend the time-limit as unsubstantiated. It also stated, inter alia, that the time-limit for lodging an appeal in cassation was 12 January 2004, but the applicant had lodged its appeal on 5 April 2004, i.e. out of time. Furthermore, the Higher Commercial Court reiterated that, under Article 110 of the Code of Commercial Procedure, the refusals of 21 January and 10 March 2004 to allow the applicant’s cassation appeal had no influence on the one-month time-limit for the introduction of an appeal with the Higher Commercial Court. Moreover, Article 109 of the Code of Commercial Procedure clearly states that cassation appeals with the Higher Commercial Court had to be addressed to it through the court of first instance or the court of appeal. As a result, the cassation appeal and the court fees were returned to the applicant. On 2 June and 20 July 2004 the Higher Commercial Court informed the applicant, by letters, that its complaints about the partiality and lack of independence of the judges who rejected the applicant’s cassation appeals were unsubstantiated. They also informed the applicant that it could appeal in cassation against the rulings of the Higher Commercial Court to the Supreme Court. On 31 May 2004 the applicant lodged a cassation appeal against the ruling of 6 May 2004 of the Higher Commercial Court with the Supreme Court (Верховний Суд України). On 16 September 2004 the Supreme Court refused to initiate cassation proceedings. B. Relevant domestic law 1. Constitution of Ukraine, 28 June 1996 Article 125 “In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation. The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction. The respective high courts are the highest judicial bodies of specialised courts. Courts of appeal and local courts shall operate in accordance with the law. The creation of extraordinary and special courts shall not be permitted.” 2. Law of Ukraine on the Judicial System of 21 June 2001 Section 47 The Supreme Court of Ukraine - the highest judicial body “1. The Supreme Court of Ukraine is the highest judicial body within the system of courts of general jurisdiction... 2. The Supreme Court of Ukraine: 1) examines in cassation proceedings the decisions of courts of general jurisdiction in cases which, in accordance with procedural law, fall within its jurisdiction and / or re-examines all cases considered by courts of general jurisdiction...” Transitional Provisions “1. This law shall become effective from the date of its publication, save for Article 81-1 [of the Code], which shall become effective from 28 June 2002. ...9. Decisions of the judicial divisions of the Higher Arbitration Court of Ukraine or of the Presidium of the Higher Arbitration Court of Ukraine that were not challenged by way of supervisory review proceedings before this Law entered into force, as well as resolutions of the Plenary Higher Arbitration Court of Ukraine, shall be final but may be appealed against to the Supreme Court of Ukraine on the basis of and pursuant to the procedure prescribed by the Code of Commercial Procedure of Ukraine.” “The appeal in cassation (petition for appeal in cassation) shall be lodged with the Higher Commercial Court through the court of first instance or the commercial court of appeal, which gave a contested judgment or resolution. The first instance or commercial court of appeal, that has adopted a contested judgment or resolution, shall transfer the appeal in cassation (petition for appeal in cassation) together with the case file to the Higher Commercial Court of Ukraine within 5 days from the moment of its receipt.” “Appeals in cassation (petition for appeal in cassation) shall be lodged within one month from the date of entry into force of the first instance court’s judgment or the resolution of the court of appeal.” “The parties to a case as well as the Prosecutor General of Ukraine have the right to lodge with the Supreme Court of Ukraine a cassation appeal against the resolution [or ruling] of the Higher Commercial Court of Ukraine adopted following the review of a decision of a first instance commercial court, that has entered into force, or a resolution of the Commercial Court of Appeal [adopted as a result of its review].” “The Supreme Court of Ukraine reviews cassation appeals lodged against the resolutions [or rulings] of the Higher Commercial Court of Ukraine if they are lodged: 1) on the basis of the application by the Higher Commercial Court of Ukraine of a law or normative act which contravenes the Constitution of Ukraine; 2) where a decision contravenes decisions of the Supreme Court of Ukraine or of a higher court of a different specialisation on the issue of the application of the norms of substantive law; 3) where the Higher Commercial Court of Ukraine has applied the same provision of the law or any other normative act differently in a similar case; 3-1) due to the inconsistency of the resolutions [or rulings] with the international treaties of Ukraine approved by the Verkhovna Rada of Ukraine; 4) where an international judicial body whose jurisdiction is recognised by Ukraine finds that a resolution has violated the international obligations of Ukraine.” “The cassation appeal (petition) of the Prosecutor General of Ukraine against the resolution of the Higher Commercial Court shall be lodged within one month from the moment of its [the resolution’s] adoption. In the event that the existence of the grounds for appeal in cassation after this period has ended, the Supreme Court shall be obliged to rule that it has jurisdiction over the cassation appeal (petition). The cassation appeal (petition) of the Prosecutor General of Ukraine against the resolution of the Higher Commercial Court of Ukraine shall be lodged with the Supreme Court through the Higher Commercial Court. The Higher Commercial Court shall transfer the cassation appeal (petition) together with the case file to the Supreme Court within ten days from the moment of its receipt.” “Proceedings for a review in cassation of a resolution [or ruling] of the Higher Commercial Court of Ukraine by the Supreme Court of Ukraine shall be initiated on the basis of a decision taken by at least one judge in the course of the hearing of the chamber in commercial cases composed of three judges and shall be considered within one month from the moment of arrival of the cassation appeal or petition. The resolution or a ruling of the Higher Commercial Court shall be reviewed by the judges of the commercial cases chamber of the Supreme Court in the course of a hearing. The resolution or a ruling of the Higher Commercial Court of Ukraine shall be reviewed in cassation on the basis of the rules for consideration of the case in the first-instance commercial court, save for “The Supreme Court of Ukraine, following consideration of the appeal in cassation by the Prosecutor General of Ukraine against a resolution [or ruling] of the Higher Commercial Court of Ukraine, is entitled to: 1) leave the resolution [or ruling] unchanged and dismiss the appeal; 2) quash the resolution [or ruling] and remit the case to the first-instance court for further consideration or quash the ruling and remit the case for further consideration to the Higher Commercial Court; 3) quash the resolution [or ruling] and terminate the proceedings in the case.” “The resolutions [or rulings] of the Higher Commercial Court of Ukraine shall be quashed if they contravene the Constitution of Ukraine, international treaties agreed as binding by the Verkhovna Rada of Ukraine, or if the substantive law has been misapplied otherwise.” “... A resolution of the Supreme Court of Ukraine shall be final and shall not be subject to appeal.” “... Resolutions of the Supreme Court of Ukraine, following a re-examination of the case on the basis of an appeal in cassation against the resolution [or ruling] of the Higher Commercial Court of Ukraine shall not include directions as to the admissibility or inadmissibility of evidence, the superiority of one type of evidence over another, the norms of substantive law which shall be applicable or the kind of decision that shall be adopted as a result of the further consideration of the case.”