CASE OF FRIDA, LLC v. UKRAINE
Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)
Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary
5. The applicant company is a limited liability company registered in 2004 in Ukraine, with its registered office in Kyiv. 6. On 12 April 2005 the applicant company and another company, S., concluded an agreement by which the applicant company undertook to provide information and analytical services to S., and the latter undertook to pay for those services. On 24 November 2005 the parties concluded an additional agreement for supplementary services to be provided to S. by the applicant company. 7. On 27 April 2006 the applicant company lodged a claim against S. with the Kyiv Commercial Court, seeking recovery of an alleged debt under the above agreement, as well as the payment of penalties and legal fees. 8. On 9 June 2006 the Kyiv Commercial Court opened the proceedings in the case. 9. On 11 September 2006, during a hearing in the case, S. submitted a counterclaim, seeking that the agreement be declared void. The court adjourned the hearing until 14 September 2006 without deciding on the admissibility of the counterclaim. 10. On 14 September 2006 the judge hearing the case accepted S.’s counterclaim for joint consideration with the original claim by the applicant company. At the same hearing, the judge granted S.’s counterclaim in part and rejected the original claim of the applicant company in full. According to the record of the hearing, the hearing lasted ten minutes. 11. On 13 October 2006 the applicant company lodged an appeal on points of law against the judgment of 14 September 2006 with the Higher Commercial Court of Ukraine (“the HCCU”). It argued that the proceedings before the first-instance court had not been adversarial, and had not complied with the principle of procedural equality between the parties: the first-instance court had not provided the applicant company with an opportunity to prepare and submit observations as to S.’s counterclaim or collect and provide evidence in defence. The applicant company requested that the impugned judgment be quashed and the case remitted to the first-instance court for fresh consideration. 12. On 9 November 2006 the HCCU returned the applicant company’s appeal on points of law to it without considering the appeal on the merits, because the relevant court fee had not been paid in full. 13. On 21 November 2006 the applicant company resubmitted its appeal on points of law with proof of having paid the full court fee. The appeal on points of law was submitted together with a cover letter. In the cover letter, the applicant company set out the circumstances which had resulted in its missing the deadline for appealing on points of law, and asked the HCCU to extend the relevant time-limit and consider the appeal. Apart from that information, the cover letter contained the date, name and address of the court to which it was addressed, the case reference number, the parties’ contact details, and the disputed amount which was the subject of the case. The letter ended with a list of enclosures, the applicant company’s lawyer’s details, his signature and a stamp. 14. On 19 December 2006 the HCCU found that the applicant company had submitted the second appeal on points of law outside the time-limit provided for by Article 110 of the Code of Commercial Procedure, and had failed to enclose an application for an extension. Relying on sub-paragraph 5 of Article 111-3 § 1, the HCCU declined to consider the applicant company’s appeal on points of law. 15. On 4 January 2007 the applicant company challenged the decision of 19 December 2006 before the Supreme Court, arguing that on 21 November 2006 it had in fact applied for an extension of the time-limit for lodging the appeal on points of law with the HCCU. The application had been included in the text of the cover letter accompanying the appeal on points of law. 16. On 22 February 2007 the Supreme Court upheld the decision of 19 December 2006.