FOURTH SECTION
CASE OF INDUSTRIAL FINANCIAL CONSORTIUM INVESTMENT METALLURGICAL UNION v. UKRAINE
(Application no. 10640/05)
JUDGMENT
STRASBOURG
26 June 2018
FINAL
26/09/2018
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Industrial Financial Consortium Investment Metallurgical Union v. Ukraine,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Vincent A. De Gaetano, President,
Ganna Yudkivska,
Faris Vehabović,
Egidijus Kūris,
Carlo Ranzoni,
Georges Ravarani,
Marko Bošnjak, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 5 June 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 10640/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian joint venture based in Kyiv with legal personality under Ukrainian law, Industrial Financial Consortium Investment Metallurgical Union (“the applicant company”), on 22 March 2005.
2. The applicant company was represented by Mr V. Yasinskiy, the head of the consortium’s executive board, and by different lawyers, most recently Mr J. Reynolds of White & Case LLP based in London. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice.
3. The applicant company complained, in the main, under Article 6 § 1 of the Convention of unfair proceedings, under Article 1 of Protocol No. 1 that the unfair proceedings had entailed the unlawful deprivation of its property, and of a violation of Articles 10, 11, 13, 14 and 18 of the Convention.
4. On 1 December 2008 the application was communicated to the Government. The applicant company and the Government each filed observations on the application.
5. Written submissions were also received from ArcelorMittal Duisburg GmbH, a private company with legal personality under German law, which had been granted leave to intervene by the President of the Section at the time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background to the case
1. Privatisation of Kryvorizhstal State Metallurgical Enterprise
6. On 6 August 2003 the Cabinet of Ministers decided that Kryvorizhstal State Metallurgical Enterprise (hereinafter “Kryvorizhstal”) was to be privatised. At the time Kryvorizhstal was one of the world’s largest steel manufacturing companies, employing about 60,000 people and producing about 20% of Ukraine’s annual steel supply. On 4 November 2003 the Ministry of Economy and European Integration included Kryvorizhstal in a list of State-owned assets which were to be privatised. Subsequently, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market adopted decisions designed to ensure the privatisation of the enterprise.
7. The applicant company was founded in April 2004 by nine private companies, five of which were owned or controlled by A., one of the leaders of the Party of Regions. Members of that party held the majority of posts in the Cabinet of Ministers in the period 2003-2004, including the post of Prime Minister. The remaining four companies were owned or controlled by P., the son-in-law of Mr L. Kuchma, the second President of Ukraine who held the post from 19 July 1994 to 23 January 2005.
8. On 12 May 2004 the State Property Fund (“the Fund”) announced a bidding competition for the purchase of 93.02% of the share capital of Kryvorizhstal. A condition of bidding was that a bidder had to have produced one million tons of charcoal of Ukrainian origin and two million tons of steel in Ukraine in each of the three years preceding the competition. The applicant company took part in that competition.
9. Out of six bids submitted by various companies, the Fund selected bids by the applicant company and Consortium Industrial Group, finding that these companies satisfied the conditions of the competition.
10. On 14 June 2004 the applicant company was declared the winner (successful bidder) of the bidding competition. On the same day the applicant company concluded a purchase contract with the Fund and paid 4,260,000,000 Ukrainian hryvnas (UAH), the equivalent of about 608,000,000 euros (EUR) at the time, for the shares at issue. The shares were transferred to the applicant company’s deposit account at ING Bank Ukraine.
11. On 23 July 2004 the applicant company appointed T. to represent it as the owner of the Kryvorizhstal shares and to complete the formalities of the transfer pursuant to the contract of 14 June 2004.
12. Without any further specification or evidence, the applicant company stated that it had invested substantial financial resources in Kryvorizhstal during the period of its control.
2. The 2004 presidential election and the reprivatisation of Kryvorizhstal
13. The lawfulness and transparency of the privatisation of Kryvorizhstal was contested by the political opposition, whose leaders in 2004 were Mr V. Yushchenko, Mrs Y. Tymoshenko and Mr O. Moroz. In their public statements, they all accused President Kuchma, P. and A. of fraud, and called for the enterprise to be returned to the State.
14. During the 2004 presidential election campaign the issue was debated by two main rivals, Mr Yushchenko and Mr Yanukovych. Mr Yanukovych, whose candidature was openly supported by President Kuchma and A., insisted that the privatisation of Kryvorizhstal had been lawful and fair.
15. Between late November 2004 and January 2005 a series of protests took place in the immediate aftermath of the run-off vote of the 2004 election, an election which, according to numerous national and international reports, was compromised by massive corruption, voter intimidation and direct electoral fraud. These events are commonly known as the Orange Revolution.
16. Following the revote of 26 December 2004, Mr Yanukovych lost the election to Mr Yushchenko, who became the third President of Ukraine on 23 January 2005. On 24 January 2005 Mrs Tymoshenko was appointed to the post of interim Prime Minister. On 4 February 2005 the Verkhovna Rada (Ukrainian Parliament) approved the appointment of the new Cabinet of Ministers, headed by her. The Party of Regions formed the parliamentary opposition.
17. According to different media reports submitted by the applicant company, between January and April 2005 President Yushchenko and Prime Minister Tymoshenko made public statements that the privatisation of Kryvorizhstal had been unlawful, and that the enterprise would be returned to the State and subsequently resold.
18. In particular, in an interview of 26 January 2005 Prime Minister Tymoshenko said that “Ukrainian enterprises, like Kryvorizhstal, which had blatantly been stolen, had to be returned to the State.”
19. On 4 February 2005 President Yushchenko made the following statement when addressing the Verkhovna Rada:
“...I promise that fair privatisation will be carried out this year. Those facilities which were stolen, starting with Kryvorizhstal, will be returned to the State ...”
20. On 12 February 2005 the Cabinet of Ministers revoked its decision of 6 August 2003 by which the privatisation of Kryvorizhstal had been launched. On 15 February 2005 the Fund also revoked its decisions concerning the privatisation.
21. On 8 June 2005 the State took control of Kryvorizhstal, pursuant to commercial court decisions declaring its privatisation unlawful (see paragraphs 51-53 and 56-57 below). By a decree of 11 June 2005, the Cabinet of Ministers declared the contract of 14 June 2004 invalid and withdrew the Kryvorizhstal shares from the applicant company.
22. On an unspecified date the money paid for the shares in the enterprise in 2004 was returned to the applicant company.
23. By two decrees of 23 June 2005, the Cabinet of Ministers launched the procedures for resale of 93.02% of Kryvorizhstal’s share capital. On 9 August 2005 it approved the bidding conditions. The next day the bidding competition was officially announced.
24. The applicant company did not participate in the competition. Instead, it challenged the authorities’ decrees issued in February and June 2005 before the commercial courts and the courts of general jurisdiction, but to no avail. The applicant company did not provide any further details of those proceedings.
25. On 24 October 2005 the bidding competition was completed by an auction, which was broadcast live by major television stations. Mittal Steel Germany GmbH was declared the successful bidder. On 28 October 2005 it concluded a purchase contract with the Fund and became the new owner of 93.02% of Kryvorizhstal’s share capital, for the price of UAH 24,200,000,000, the equivalent of about EUR 3,964,021,752 at the time. Eventually, Mittal Steel Germany GmbH was succeeded by ArcelorMittal Duisburg GmbH, which, according to the documents submitted by that company, made significant investments in Kryvorizhstal.
3. Events after the 2004 election concerning one of the applicant company’s owners
26. According to the applicant company, after the 2004 election A. was targeted for his political expression and association. In particular, companies which he owned or controlled were subjected to various checks by the authorities. The authorities allegedly attempted to nationalise some of those companies, though they were unsuccessful. The applicant company submitted copies of several petitions to the domestic authorities made by third parties with a view to preventing the nationalisation of those companies.
B. Proceedings before the courts of general jurisdiction instituted by private individuals
1. Proceedings instituted by N., S. and Kh.
27. On 28 May, 3 and 11 June 2004 respectively, three private individuals, N., a lawyer practising in Kyiv, S. and Kh., members of Parliament, lodged with the Golosiivskyy District Court of Kyiv three separate administrative law complaints against the decisions of the Fund and the State Commission on Securities and the Stock Market concerning the organisation of the 2004 bidding competition, contending that those decisions had violated the right of every citizen to participate in the privatisation of State property.
28. On an unspecified date the President of the Kyiv Court of Appeal transferred the case to the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”). By separate decisions of 8 and 14 June 2004, the latter court refused to consider those complaints, and ordered that its decisions be immediately “enforced”. No copy of those decisions was provided to the Court.
29. On 2 August 2004 the Kyiv Court of Appeal changed the decisions of 8 and 14 June 2004 in part by excluding the provisions concerning their immediate enforcement.
2. Proceedings instituted by I. and N.
30. On 14 June 2004 I., a private individual, and N. lodged with the Shevchenkivskyy District Court of Kyiv a claim against the Fund, the State Commission on Securities and the Stock Market, and ING Bank Ukraine, challenging the validity of their decisions and actions in connection with the privatisation of Kryvorizhstal. On an unspecified date the case was transferred to the Pecherskyy Court.
31. At the claimants’ request, the applicant company was invited to participate in the proceedings as a third party. By letters of 20 October and 25 November 2004, the Pecherskyy district prosecutor applied to the court for leave to participate in the case to represent the interests of I. and those of the State. The prosecutor’s application was granted.
C. Proceedings before the commercial courts instituted by Consortium Industrial Group
32. On 25 June 2004 Consortium Industrial Group, the losing party in the 2004 bidding competition, instituted proceedings in the Kyiv Commercial Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions adopted in connection with the privatisation of Kryvorizhstal and the contract of 14 June 2004. It contended that the 2004 bidding competition had been unlawful and unfair.
33. In particular, Consortium Industrial Group argued that the shares in Kryvorizhstal had not been issued in accordance with the law; that the competition had not been announced in due time; that the conditions of the competition had been too narrow and restrictive, thereby limiting the circle of potential bidders and disrespecting the statutory right of every citizen to participate in the privatisation of State assets; that the shares should have been sold through the stock exchange; and that its total offer, including the money it had planned to invest in Kryvorizhstal, had been higher than the amount paid by the applicant company for the shares in the enterprise. It also argued that, because the complaints by three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts in the period May-June 2004, any decision adopted between 8 and 14 June 2004 in relation to the competition had been invalid.
34. On 5 July 2004 the applicant company lodged a counterclaim against the other parties to the proceedings, asking the court to endorse its right to 93.02% of the Kryvorizhstal shares.
35. By a procedural ruling of 20 July 2004, the Kyiv Commercial Court found that the Office of the Prosecutor General had to participate in the proceedings, and ordered it to designate a representative in the proceedings. Notwithstanding that ruling, no prosecutor appeared before the Kyiv Commercial Court or the Higher Commercial Court in 2004.
36. Kryvorizhstal took part in the proceedings as a third party.
37. On 19 August 2004 the Kyiv Commercial Court, having considered the arguments of Consortium Industrial Group in detail, dismissed them as unsubstantiated and found that the privatisation of Kryvorizhstal had been carried out in accordance with the relevant legislation. The court held, inter alia, that citizens’ rights to participate in the privatisation had not been restricted, since they had been free to establish companies and participate in the competition through such companies. It also stated that the complaints by the private individuals against the competition had not been lodged in accordance with the law, and thus had had no suspensive effect. The court further endorsed the applicant company’s property rights over the Kryvorizhstal shares, and banned any actions by the defendants which could violate these rights.
38. Consortium Industrial Group appealed in cassation to the Higher Commercial Court.
39. On 22 October 2004 the Higher Commercial Court held a hearing in the presence of the parties’ representatives and upheld the judgment of 19 August 2004. The parties made no appeal to the Supreme Court against the decision of 22 October 2004.
40. On 7 February 2005 the Prosecutor General lodged a cassation appeal in the interests of the State with the Supreme Court, alleging that the contested decisions of the Kyiv Commercial Court and the Higher Commercial Court concerned the rights and obligations of the Cabinet of Ministers. The Prosecutor General sought an extension of the time-limit for lodging his appeal, stating, without giving any further details, that he had missed it since he had only become aware of the decision of 22 October 2004 in the course of examining a complaint by S. to the Prosecutor General. According to the Government, the Office of the Prosecutor General had received that complaint on 30 December 2004, and it had been directed mainly against the decision of the Higher Commercial Court of 22 October 2004.
41. In his appeal, the Prosecutor General mainly challenged the application of the law by the Kyiv Commercial Court and the Higher Commercial Court, and alleged that those courts’ decisions had been inconsistent with a decision of the Supreme Court in a similar case. He also stated that the courts had failed to invite the Cabinet of Ministers to take part in the proceedings, although the subject matter had concerned its functions under the relevant privatisation regulations.
42. On 17 February 2005 the Supreme Court granted the extension requested and opened the proceedings on the merits of the Prosecutor General’s cassation appeal. No copy of that procedural ruling was provided to the Court.
43. On 1 March 2005 the Supreme Court allowed the appeal by the Prosecutor General, quashed the decisions of the lower courts, and remitted the case for fresh consideration. It found that under Ukrainian law neither Consortium Industrial Group nor the applicant company had been eligible to participate in the 2004 bidding competition; that the competition had not been announced in due time, as required by law; and that the lower courts, when allowing the applicant company’s counterclaim, had erred in applying the rules of procedure, which stated that no counterclaim could be lodged by a defendant against another defendant in the proceedings.
44. On 21 March 2005 the Deputy Prosecutor General lodged with the Kyiv Commercial Court, to which the case had been remitted, a claim in the interests of the State and on behalf of the Fund against the applicant company, the Ministry of Industrial Policy, and the State Commission on Securities and the Stock Market. His claim was directed against the decisions concerning the privatisation of Kryvorizhstal and the contract of 14 June 2004. He also sought the return of the Kryvorizhstal shares to the Fund, and asked the court to seize the shares as a temporary measure until the dispute was finally resolved.
45. The Deputy Prosecutor General argued that the 2004 bidding competition had not been organised in a lawful and fair way, particularly regarding the conditions which the potential bidders had had to satisfy. He further submitted that the bidders whose offers had been chosen had not satisfied the legislative requirements for participating in that competition.
46. On 23 March 2005 the court held a hearing in camera at which it decided to open the proceedings and invite the parties to submit their arguments on the case. It also scheduled the next hearing for 1 April 2005.
47. On 1 April 2005 the court ordered that ING Bank Ukraine, where the shares at issue had been deposited, participate in the case as a defendant. The Office of the General Prosecutor was granted leave to take part in the proceedings as a third party on behalf of the Cabinet of Ministers.
48. On 15 April 2005 the applicant company requested that the court allow journalists to attend the hearings in the case. The court rejected that application, finding that the journalists had not obtained official authorisation from the court administration.
49. Subsequently, journalists obtained the necessary authorisation and attended the hearings.
50. On 21 April 2005 a copy of the Pecherskyy Court’s decision of 21 April 2005 (see paragraph 83 below) was included in the case file and examined by the court at a hearing on the same day.
51. On 22 April 2005 the court delivered a judgment in the case whereby it allowed the claims of Consortium Industrial Group and the Office of the Prosecutor General, which it found to be of the same nature. It annulled the authorities’ decisions concerning the 2004 privatisation and the contract of 14 June 2004, and ordered the Fund to return the money paid by the applicant company for the Kryvorizhstal shares. The applicant company’s counterclaim was rejected, and it was ordered to return the shares to the Fund and pay UAH 1,903, the equivalent of about EUR 291 at the time, to the State for costs and expenses.
52. The court held that the Fund had failed to announce the competition in due time; that it had unlawfully introduced a condition concerning the production of charcoal and steel; that the Fund had failed to set out specific conditions of sale of certain number of the Kryvorizhstal shares outside the bidding competition; that the Fund’s decisions issued between 8 and 14 June 2004 in relation to the competition had been invalid, as the complaints of three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts during that period; and that the applicant company and Consortium Industrial Group had unlawfully been allowed to participate in the competition.
53. By a procedural ruling of 28 April 2005, the same court seized the shares at issue. On the same day, bailiffs started enforcement proceedings in respect of that ruling.
54. The applicant company appealed against the judgment of 22 April 2005 and the ruling of 28 April 2005. According to the text of the Kyiv Commercial Court of Appeal’s decision of 2 June 2005 (see paragraph 56 below), the applicant company contended that the Kyiv Commercial Court had wrongly established the circumstances of the case, and that it had erred in applying the law. The applicant company further challenged the lawfulness of the bailiffs’ actions as regards enforcement of the ruling of 28 April 2005. No copy of the applicant company’s appeal was provided to the Court.
55. In the appeal proceedings, the applicant company asked the Kyiv Commercial Court of Appeal to suspend the proceedings before the commercial courts pending the outcome of the proceedings before the courts of general jurisdiction (see paragraphs 81-87 below). The court rejected that application on the grounds that the latter proceedings were not decisive for the outcome of the commercial case.
56. On 2 June 2005 the Kyiv Commercial Court of Appeal changed the judgment of 22 April 2005 in part. In particular, the appeal court found that the claims by Consortium Industrial Group had to be rejected, as it had not been eligible to participate in the 2004 bidding competition. The applicant company’s appeal was dismissed as unsubstantiated.
57. By the same decision, the appeal court annulled the ruling of 28 April 2005 for non-compliance with the procedural rules, and refused to consider the applicant company’s complaints against the bailiffs, on the basis that the matter fell outside its jurisdiction. The court further ruled to seize the Kryvorizhstal shares for the purpose of securing the claim by the Office of the Prosecutor General.
58. The applicant company appealed in cassation. No copy of the cassation appeal was provided to the Court.
59. On 21 July 2005 the Higher Commercial Court rejected the applicant company’s cassation appeal as unsubstantiated.
60. On 31 August 2005 a panel of three judges of the Supreme Court rejected the applicant company’s further cassation appeal. No copy of that appeal was provided to the Court.
61. In the course of the proceedings before the commercial courts between February and June 2005 the applicant company challenged the impartiality of the judges and the courts dealing with its case on a number of occasions, alleging that their decisions and actions were influenced by government officials. According to the text of the judgment of the Kyiv Commercial Court of 22 April 2005 and the decision of the Kyiv Commercial Court of Appeal of 2 June 2005 (see paragraphs 51-52 and 56‑57 above), the applicant company’s procedural applications were rejected as unsubstantiated. No further explanation in that regard was given by the courts.
D. Public statements concerning the proceedings before the commercial courts instituted by Consortium Industrial Group
62. After 1 March 2005, and while the applicant company’s case was being considered by the commercial courts, the President and the Prime Minister made a number of public statements concerning the proceedings. The applicant company submitted different media reports reproducing and/or interpreting those statements. The Government argued that some of the reports had not interpreted the statements accurately. In particular, they referred to the reports concerning the Prime Minister’s press conference of 5 April 2005, at which she had made statements as to when the ongoing proceedings before the Kyiv Commercial Court might be completed.
63. According to a number of other reports, at a press conference of 11 April 2005 the Prime Minister said:
“... Facilities such as Kryvorizhstal ... I think that today the [authorities] are involved in the court proceedings concerning the return of those assets to the State. We are confident that we have a clear position [in relation to the case], and these enterprises will be returned to the State ...”
In an interview of 14 April 2005 the President stated:
“... If the owners refuse to cooperate voluntarily, we will go down the legal route and will undoubtedly win [the case]. [However,] this will take several months...
The facility has been stolen, and the cost of that theft is several billion [United States] dollars. For me, this is a fact...
We prepare the terms of a new [bidding] competition...”
64. On 23 April 2005, commenting on the possibility that the applicant company could appeal against the judgment of 22 April 2005, the Prime Minister stated:
“... This will be an important decision by the appeal [court]. It will be evidence not only of the court’s objectivity, but also of the [past] negotiations behind closed doors between various representatives from the authorities and the business...”
E. Proceedings before the courts of general jurisdiction instituted by Consortium Industrial Group
65. In July 2004 Consortium Industrial Group instituted proceedings in the Pecherskyy Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions issued in connection with the privatisation of Kryvorizhstal and the contract of 14 June 2004. Consortium Industrial Group relied mainly on the same circumstances and considerations referred to in its claims before the commercial courts. Its claims before the courts of general jurisdiction contained an additional element – a challenge to the validity of T.’s appointment on 23 July 2004 as the applicant company’s representative in the procedures following the 2004 bidding competition.
66. T. took part in the proceedings as a defendant. Kryvorizhstal participated in the proceedings as a third party.
67. On 25 August 2004 the court delivered a judgment dismissing the claims of Consortium Industrial Group. For the most part, it contained identical reasons to those in the judgment of the Kyiv Commercial Court of 19 August 2004 (see paragraph 37 above).
68. On 1 and 27 December 2004 respectively the Kyiv Court of Appeal and a panel of three judges of the Supreme Court upheld the judgment of 25 August 2004.
69. On 9 February 2005 N. lodged an application for review of the above case with the Pecherskyy Court, in the light of newly discovered circumstances. In particular, she argued that the findings concerning the right of every citizen to participate in the privatisation of State assets contained in the judgment of 25 August 2004 had been contrary to the judgment of the Constitutional Court of 1 December 2004 (see paragraph 99 below). She also contended that the courts had not been aware of the fact that the decisions of the Pecherskyy Court of 8 and 14 June 2004 had been challenged on appeal, and thus they had not become final before 2 August 2004.
70. N.’s application was dealt with by the same judge of the Pecherskyy Court who had sat in the main proceedings.
71. By a telegram of 15 February 2005, the court informed the applicant company that the next day it would hold a hearing, at the request of N..
72. On 15 February 2005 the applicant company lodged with the court an application to consult the case file. The application was not granted.
73. On 16 February 2005 the court held a hearing on the merits of N.’s application. Consortium Industrial Group, T., the State Commission on Securities and the Stock Market and Kryvorizhstal, who had been the parties to the main proceedings, did not take part in the hearing.
74. The representatives of the applicant company requested leave to consult the case file and the adjournment of the hearing on the grounds that they had not been informed about the merits of the application before the hearing, and accordingly had not been able to prepare for it. They also sought the withdrawal of the judge dealing with the case, challenging her impartiality.
75. The judge rejected the applications by the applicant company’s representatives, and read out the application by N.
76. The applicant company’s representatives objected to the application, arguing that N. was not entitled to ask for a review of the case, since she had not been a party to the original proceedings, and there were no newly discovered circumstances or other reasons capable of warranting the reopening of the proceedings.
77. The applicant company’s representatives did not receive a copy of the application either before or during the hearing.
78. On 17 February 2005 the court allowed the application. It found that the right of every citizen, including that of N., to participate in privatisation and challenge its lawfulness had been confirmed by the judgment of the Constitutional Court of 1 December 2004. It also held that the ruling of 8 June 2004 on N.’s complaint concerning the 2004 competition had not entered into force at the time when the competition had taken place, and thus it could not have served as one of the grounds for rejecting the claims by Consortium Industrial Group.
79. The court quashed its judgment of 25 August 2004 and held that the higher courts’ decisions of 1 and 27 December 2004 were no longer valid.
80. On an unspecified date the case was transferred to another judge of the Pecherskyy Court for fresh examination.
F. Joined proceedings before the courts of general jurisdiction
81. On 28 February 2005, following an application by N., the Pecherskyy Court decided to examine the claims of I., N., and Consortium Industrial Group (see paragraphs 30 and 65 above) jointly, holding that they were of the same nature and concerned the same defendants.
82. On an unspecified date the applicant company lodged an application for review of the ruling of 17 February 2005 with the same court, in the light of newly discovered circumstances.
83. On 21 April 2005 the court granted the application by the applicant company, quashed the ruling of 17 February 2005, and rejected N.’s application of 9 February 2005 on the grounds that she had not participated in the original proceedings concerning the claims by Consortium Industrial Group.
84. By a separate ruling of the same date, the court rejected the claims by I. and N., finding that they had not participated in the 2004 bidding competition and did not have an arguable claim in respect of the subject matter of the proceedings. The court held that their claims represented a disguised attempt to settle a dispute between legal entities falling within the jurisdiction of commercial courts.
85. By decisions of 20 and 27 July 2005, the Kyiv Court of Appeal quashed the ruling of 21 April 2005, stating that, in the light of newly discovered circumstances, the ruling of 17 February 2005 was not to be reviewed, and that, with regard to Article 6 of the Convention, the Pecherskyy Court had unlawfully limited I.’s and N.’s right of access to a court.
86. On 15 October 2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 20 and 27 July 2005.
87. The case was remitted to the Pecherskyy Court, which on 6 February 2008 decided not to examine the claim of Consortium Industrial Group, because its representatives had failed to appear before the court.
88. No appeal was lodged against the decision of 6 February 2008. According to the Government, on the basis of that decision the joined proceedings before the courts of general jurisdiction were terminated. The applicant company did not contest this.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The 1991 Code of Commercial Procedure, as worded at the material time
89. Article 53 of the Code set out that, at the request of a party to proceedings or a prosecutor, or on its own initiative, a court could renew a time-limit if it considered that there were valid reasons for the time-limit being missed.
90. Under Articles 111-11, 111-14 and 111-16, a decision of the Higher Commercial Court had the force of law when delivered, but parties to proceedings and the Prosecutor General were entitled to lodge a cassation appeal with the Supreme Court within one month of the decision being delivered.
91. Article 111-15 provided that the Supreme Court had to examine cassation appeals if they were based on one of the following grounds: (i) the Higher Commercial Court’s application of a legal act contravening the Constitution; (ii) an impugned decision’s inconsistency with the case-law of the Supreme Court or a different specialised higher court on the application of the same substantive law provisions; (iii) the Higher Commercial Court’s inconsistent application of the same legal provision in similar cases; (iv) an impugned decision’s inconsistency with the international treaties of Ukraine approved by Parliament; and (v) a finding by an international judicial authority with jurisdiction recognised by Ukraine that an impugned decision violated the international commitments of Ukraine.
92. In accordance with Article 111-19, the Supreme Court had the power to quash a decision of the Higher Commercial Court if it was inconsistent with the Constitution or Ukraine’s international treaties approved by Parliament, or if it was based on the incorrect application of substantive law. The Supreme Court’s decision was final and could not be appealed against (Article 111-20).
B. The 1963 Code of Civil Procedure (repealed on 1 September 2005)
94. Article 248-1 of the Code established that every citizen was entitled to lodge a complaint with a court if he or she considered that his or her rights, freedoms or lawful interests had been infringed by a decision or action of a public authority or official, or by inactivity on the part of a public authority or official. In accordance with Article 248-4, the lodging of such a complaint suspended the execution of the impugned decision.
95. Under Article 347-2 of the Code, judgments and rulings of courts of first instance, appeal courts and cassation courts could be reviewed in the light of newly discovered circumstances. The same Article set out five grounds for such a review: (i) significant circumstances which had not been and could not have been known to the person applying for a review; (ii) the intentionally false testimony of a witness, intentionally incorrect expert conclusions, intentionally incorrect translations, forged documentary or material evidence leading to the issuing of an unlawful judgment, as established by a final judgment in a criminal case; (iii) criminal offences committed by parties, other persons participating in a case, or judges, in the course of a case being considered, as established by a final judgment in a criminal case; (iv) the annulment of a judgment, court ruling or decision of another authority on which the judgment or ruling at issue was based; and (v) the law applied by a court in the determination of a case being declared unconstitutional.
96. Article 347-3 of the Code contained a list of those who were entitled to apply for a review of judgments and court rulings in the light of newly discovered circumstances: parties to a case, other persons participating in proceedings, and prosecutors. They could do so within three months of discovering grounds for such a review.
97. Under Article 347-6, an application for review had to be examined at a hearing of which parties, other persons participating in the case and a prosecutor had been informed. Their failure to appear at that hearing did not prevent a court from examining the application. If the court decided to allow the application and annul a judgment or ruling, the case was to be considered in accordance with the procedure set out by the Code.
98. In accordance with Article 347-7 of the Code, the decision to grant an application for review of a judgment or ruling of a court in the light of newly discovered circumstances was final and could not be challenged on appeal.
C. Judgment of the Constitutional Court of 1 December 2004
99. The relevant provisions of the Constitutional Court’s judgment read as follows:
“1... [The members of Parliament] of Ukraine lodged with the Constitutional Court of Ukraine an application for an official interpretation of the notion ‘interest protected by law’, as used in the first paragraph of Article 4 of the Code of Civil Procedure ..., and for an [official] explanation as to ‘whether this notion concerns an individual’s interest – a shareholder in a joint-stock company who applies to a court with a view to defending the violated rights of the joint-stock company ..., taking into account the fact that, because of the violation of the rights of the joint-stock company, the rights of the company’s shareholder[s], as set out in the current legislation of Ukraine and/or the company’s articles of association, have also been infringed’.
...
the Constitutional Court decided:
1. The notion ‘interest protected by law’ ... is to be understood as an inclination to use pecuniary and/or non-pecuniary benefits ... [an inclination] which is a distinct object of judicial protection and of other remedies aimed at satisfying individual and collective needs which are not contrary to the Constitution and laws of Ukraine, social interests, [the principles of] fairness, good faith, reasonableness, or other fundamental principles of law.
2. In the context of the question raised in the constitutional application, the provisions of the first paragraph of Article 4 of the Code of Civil Procedure of Ukraine are to be understood as meaning that a shareholder may defend his rights and interests protected by law through an application to a court if they are violated, disputed or not acknowledged by the joint-stock company [in which he or she holds shares], its organs or by other shareholders of that company.
The law shall determine the procedure of judicial protection of the joint-stock company’s rights and interests ... violated by any person, including third parties, where those rights and interests are not considered to equate simply to the totality of the individual interests ... of its shareholders.
...”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION
100. The applicant company complained, in its original application of 22 March 2005 which was subsequently amended on 21 June 2005, of a violation of Article 6 § 1 and Article 13 of the Convention, stating that after the 2004 election the proceedings concerning the 2004 bidding competition before the courts of general jurisdiction and the commercial courts had been conducted in an unfair manner.
101. Firstly, according to the applicant company, the principle of legal certainty had not been observed in those proceedings in view of (i) the annulment of the final judgment of the Pecherskyy Court of 25 August 2004 and the decisions of the Kyiv Court of Appeal and the Supreme Court of 1 and 27 December 2004; (ii) its case being reconsidered following an appeal by the Prosecutor General, who had not been a party to the proceedings, after being finally determined by the Higher Commercial Court on 22 October 2004; (iii) the failure of the Kyiv Commercial Court and the Commercial Court of Appeal to take into account the findings contained in the judgment of the Pecherskyy Court of 25 August 2004 as regards the same parties, facts and arguments; and (iv) the conflicting approaches to the interpretation of the relevant domestic law of the commercial courts and the courts of general jurisdiction dealing with its cases.
102. Secondly, the applicant company alleged that the review proceedings before the Pecherskyy Court in February 2005 had not been fair. In particular, it complained that the application to reopen the proceedings in the light of newly discovered circumstances had been lodged by a person who had not participated in the main proceedings, and that there had been no reason to reopen the case. It further alleged that the Pecherskyy Court had failed to respect the principle of equality of arms when considering that application, in that the applicant company’s lawyers had not been promptly informed of the hearing of 16 February 2005 or provided with a copy of the application to reopen the proceedings, or the documents in support of that application. Consequently, they had not been able to prepare for that hearing and comment effectively on the merits of the application.
103. Thirdly, the applicant company stated that the proceedings before the Supreme Court in the period February-March 2005 had also been unfair, arguing that the Prosecutor General’s cassation appeal had been considered on the merits, notwithstanding the fact that it had been lodged out of time.
104. Fourthly, the applicant company alleged that its lawyers had had no opportunity to put forward their arguments at the hearing of 23 March 2005 before the Kyiv Commercial Court, that journalists had not been allowed to attend that hearing, and that the judgment of 22 April 2005 lacked reasons.
105. Fifthly, the applicant company claimed that the courts dealing with its cases after the 2004 election had not been impartial and independent, and that their decisions which had been unfavourable to it had been politically motivated and influenced by top government officials. By making public statements concerning the ongoing proceedings, the authorities had violated Article 6 of the Convention.
106. In its submissions of 19 March 2008, the applicant company also complained regarding the unfavourable outcome of its application for review of the decision of the Pecherskyy Court of 17 February 2005, and of the failure of the authorities to inform it of the hearing of 21 July 2005 before the Higher Commercial Court, and the fact that the hearing had been held in the absence of its lawyers.
107. In its submissions of 7 July 2009, the applicant company further complained that there had been a violation of the principle of impartiality in the reopened proceedings in its case, in that the State authorities had revoked their decisions relating to the launch and conduct of the process privatising Kryvorizhstal while those proceedings had been ongoing (see paragraph 20 above).
108. The Court considers that the applicant company’s complaints fall to be examined under Article 6 § 1 of the Convention, which reads, in so far as relevant, as follows:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”
A. Admissibility
109. At the outset, the Court notes that the applicant company’s complaints essentially concern the manner in which the courts of general jurisdiction and the commercial courts examined the dispute concerning the lawfulness of the privatisation of Kryvorizhstal after the 2004 election. There are three main issues regarding which the applicant company complained: (i) the quashing of the final decisions in its cases and the subsequent reopening of the proceedings in February 2005; (ii) the allegedly inconsistent decisions taken by the courts after the proceedings were reopened; and (iii) the alleged violation of the principles of independence and impartiality. The Court will firstly examine the admissibility of those issues and then the admissibility of the applicant company’s other complaints under Article 6 § 1 of the Convention regarding an unfair hearing.
1. Annulment of the final decisions and the reopening of the proceedings
(a) The parties’ submissions
110. The Government argued that Article 6 § 1 of the Convention did not apply to the proceedings in question, as they had not been decisive for the applicant company’s civil rights or obligations. In particular, the decisions of the commercial courts of 19 August and 22 October 2004, and the decisions of the courts of general jurisdiction of 25 August and 1 and 27 December 2004 (see paragraphs 37, 39, 67 and 68 above) rejecting the claims against the applicant company, had not changed its legal status as the owner of Kryvorizhstal. Nor had the quashing of those decisions resulted in a change in that status. Also, the applicant company’s counterclaim in the commercial proceedings had not concerned a dispute, as it had been directed against different State bodies, which had not challenged the applicant company’s title in respect of Kryvorizhstal and which procedurally had been the applicant company’s co-defendants.
111. The Government further argued that the applicant company could not claim to be a victim regarding this part of its complaints, as the quashing of the court decisions at issue had not resulted in a change in the applicant company’s legal status as the owner of Kryvorizhstal. Moreover, the claim by Consortium Industrial Group had ultimately been rejected by the courts of general jurisdiction in February 2008 (see paragraph 87 above). Also, the applicant company could not claim to have been in a state of uncertainty following the quashing of the decisions of the commercial courts of 19 August and 22 October 2004, as those decisions had been reconsidered in the course of the ordinary cassation procedure.
112. The applicant company stated that Article 6 § 1 of the Convention was applicable to the impugned proceedings, as they had essentially concerned its title in respect of Kryvorizhstal and thus its consequent civil rights and obligations. Its title had been challenged directly and indirectly, initially by a private company and later by a private individual and the State through the Prosecutor General. The outcome of the proceedings had been decisive for the applicant company’s title.
(b) The Court’s assessment
113. The Court reiterates that, for the civil limb of Article 6 § 1 to be applicable, there must be a dispute over a “civil right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, among many other authorities, Micallef v. Malta [GC], no. 17056/06, § 74, ECHR 2009, and Boulois v. Luxembourg [GC], no. 37575/04, § 90, ECHR 2012).
114. Turning to the present case, the Court notes that the proceedings before the commercial courts and the courts of general jurisdiction concerned a genuine dispute between different parties over the lawfulness of the decisions and the contract by which the applicant company had acquired shares in Krivorizhstal. Thus, they were decisive for the determination of the applicant company’s right over the shares, which was a civil right within the meaning of Article 6 § 1 of the Convention. These considerations are not altered by the fact that the decisions of the courts, which were eventually quashed in February 2005, were favourable to the applicant company and endorsed its title in respect of the shares, or that the quashing of those decisions entailed no change in the applicant company’s legal status.
115. In the light of the foregoing, the Court finds that Article 6 § 1 applied to the impugned proceedings. Accordingly, the Government’s objections in that regard (see paragraph 110 above) must be rejected.
116. In so far as the Government argued that the applicant company had no victim status as regards the quashing of the decisions in its favour (see paragraph 111 above), the Court considers that the Government’s argument is closely linked to the substance of this part of the applicant company’s complaints. Accordingly, their objection in this regard must be joined to the merits.
117. The Court further finds that the applicant company’s complaints about the quashing of the final decisions in its cases in February 2005 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.
2. Allegedly inconsistent decisions taken by the courts after the proceedings were reopened
118. In so far as the applicant company complained that the Kyiv Commercial Court and the Commercial Court of Appeal had failed to take into account the findings contained in the judgment of the Pecherskyy Court of 25 August 2004, the Court considers that this complaint has to be examined in the context of the applicant company’s more general complaint relating to the fact that the dispute regarding the lawfulness of the 2004 privatisation had been dealt with by the courts in the framework of two “parallel” judicial procedures (see paragraph 101 above). While the existence of multiple parallel and interrelated proceedings concerning substantially the same legal issue may potentially have implications for compliance with the principle of legal certainty (see, for instance, Mullai and Others v. Albania, no. 9074/07, §§ 81, 86-88, 23 March 2010), the Court reiterates its finding that the dispute in the present case was finally resolved by the commercial courts, and the “parallel” proceedings before the courts of general jurisdiction were eventually discontinued (see paragraph 87 above). Although the applicant company argued that at some stage in those proceedings there had been some inconsistency between the decisions of the commercial courts and those of the courts of general jurisdiction, it has not been demonstrated that this was the case or that the alleged inconsistency persisted until the time when the matter was finally determined by the Supreme Court (see paragraph 60 above).
119. Accordingly, this part of the applicant company’s complaints should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
3. Alleged non-compliance with the guarantees of independence and impartiality
(a) The parties’ submissions
(i) The Government
120. The Government argued that the applicant company had no victim status as regards the alleged non-compliance with the guarantee of impartiality, since (i) no such complaint was contained in the application form, and (ii) public comments concerning the domestic proceedings had been made by individuals holding no government posts, in the context of an election debate.
121. The Government further argued that the applicant company had failed to exhaust domestic remedies as regards this part of the application, since it had not raised the issue of alleged bias in the domestic proceedings before the higher courts.
122. As to the proceedings before this Court, the Government stated that the applicant company had raised no complaint of bias on the part of the courts between 31 August 2005 and 28 February 2006, that is during the six months following the final determination of its case by the Supreme Court (see paragraph 60 above). The applicant company’s complaints in that regard raised outside that period had to be rejected as lodged out of time.
123. According to the Government, the applicant company’s allegations regarding a violation of the guarantees of independence and impartiality contained no complete and objective information about the statements by the politicians concerning the impugned proceedings. They were based on media reports containing incorrect interpretations of the statements, and the applicant company had misinterpreted some of the statements, in particular by saying that the Prime Minister had said that the proceedings “would” be finished by a certain date (see paragraph 62 above). Also, the applicant company had failed to demonstrate how the politicians’ statements had influenced the courts in the present case. For those reasons, the Government submitted that the applicant company’s allegations were manifestly ill‑founded.
(ii) The applicant company
124. The applicant company maintained its complaints that, following the 2004 election, the commercial courts dealing with its cases had not been independent and impartial, and their decisions had been influenced by top government officials.
125. The applicant company also contended that its appeals to the Higher Commercial Court and the Supreme Court had provided no effective remedy, since the judgment of the Kyiv Commercial Court of 22 April 2005 had become effective on 2 June 2005, and the State authorities had started the reprivatisation process before the higher courts had examined its appeals.
(b) The Court’s assessment
126. The Court notes that, in so far as the applicant company’s complaints concern proceedings before the courts of general jurisdiction, the applicant company can no longer claim to be a “victim” within the meaning of Article 34 of the Convention, as the civil claims against it were not pursued and, for that reason, the impugned proceedings were discontinued in February 2008 (see paragraph 87 above). It follows that this part of the applicant company’s complaints must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention (see, mutatis mutandis, Dilipak v. Turkey, no. 29680/05, § 32, 15 September 2015, with further references).
127. As regards the complaints regarding a violation of the guarantees of independence and impartiality in the proceedings before the commercial courts, the Court notes that the applicant company raised those complaints in its amended application form of 21 June 2005 (see paragraph 105 above). The complaints were essentially based on different media reports, according to which the Ukrainian authorities, acting at the highest level, made public statements concerning the outcome of those proceedings before the courts finally determined it. Notably, such statements were made by the President and the Prime Minister in January, February and April 2005 (see paragraphs 17-19 and 62-64 above). Thus, the Government’s objection as to the applicant company’s victim status must be rejected.
128. The Court further notes that the Government provided no evidence demonstrating that the impugned media reports had either been untrue or incorrectly reproduced the statements. Accordingly, the Government’s objection in that regard (see paragraph 123 above) must be also dismissed.
129. As to the Government’s objection as to non-exhaustion (see paragraph 121 above), the Court notes that the applicant company raised its complaints of a violation of the principle of impartiality before the Kyiv Commercial Court and the Kyiv Commercial Court of Appeal. Those courts rejected its complaints as unsubstantiated, providing no reasons for their decision (see paragraph 61 above). Even assuming that the applicant company did not maintain those complaints before the Higher Administrative Court and the Supreme Court, there is no information demonstrating that the alleged violation of the principle of impartiality could have been remedied in the proceedings before those courts. Nor did the Government submit a specific example showing similar complaints having been remedied in the course of those types of proceedings (see, mutatis mutandis, Sovtransavto Holding v. Ukraine (dec.), no. 48553/99, 27 September 2001). Therefore, the Government’s objection as to non-exhaustion should be dismissed.
130. In the light of the foregoing conclusion that the proceedings before the Higher Administrative Court and the Supreme Court could offer no remedy for the alleged violation of the principle of impartiality (see paragraph 129 above), the applicant company should not be reproached for having lodged the complaints at issue with this Court on 21 June 2005, which was before those courts finally determined the case (see paragraphs 59 and 60 above). In any event, in accordance with the Court’s case-law, the last stage in the exhaustion of remedies may be reached after the lodging of an application but before the Court is called upon to pronounce on the issue of admissibility (see, for instance, Yazıcı and Others v. Turkey (no. 2), no. 45046/05, § 18, 23 April 2013 with further references). Accordingly, the Court also rejects the Government’s objection based on the six-month rule (see paragraph 122 above).
131. In so far as the Government argued that the applicant company had failed to demonstrate how those statements had influenced the courts (see paragraph 123 above), this objection is closely linked to the substance of the applicant company’s complaints. Therefore, it must be joined to the merits.
132. On the whole, the Court finds that the applicant company’s complaints regarding a breach of the guarantees of independence and impartiality in the proceedings before the commercial courts in 2005 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and are not inadmissible on any other grounds. They must therefore be declared admissible.
4. The applicant company’s remaining complaints under Article 6 § 1 of the Convention
133. The applicant company complained regarding different procedural violations in the way the Kyiv Commercial Court had dealt with its case in March 2005. However, it submitted no copy of its appeals against the judgment of that court of 22 April 2005. Nor did it demonstrate that those complaints had been duly raised in the ensuing proceedings before the higher courts. Accordingly, the complaints must be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
134. The Court notes that the applicant company’s complaints of 19 March 2008 and 7 July 2009, in so far as they concern the commercial proceedings, were lodged more than six months after the final domestic decision had been given by the Supreme Court on 31 August 2005 (see paragraph 60 above). Accordingly, those complaints should be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
135. The applicant company’s complaint of 19 March 2008 about the outcome of its application for review of the decision of the Pecherskyy Court of 17 February 2005 must be rejected as incompatible ratione materiae with the Convention, pursuant to Article 35 §§ 3 (a) and 4, since the impugned proceedings concerned no determination of civil right or obligations, but the question of admissibility of the applicant company’s extraordinary appeal.
B. Merits
136. The Court reiterates that the applicant company’s admissible complaints concern two issues: (i) the quashing of the final decisions in its cases and the subsequent reopening of the proceedings in February 2005 and (ii) the alleged violation of the principles of independence and impartiality in the proceedings before the commercial courts in 2005. The Court will examine those issues in turn in order to determine whether the impugned proceedings met the requirements of fairness within the meaning of Article 6 of the Convention.
1. The parties’ submissions
(a) The Government
(i) The quashing of the final decisions in its cases and the subsequent reopening of the proceedings in February 2005
137. The Government argued that the quashing of the decisions in February 2005 had entailed no violation of Article 6 § 1 of the Convention.
138. In particular, the decisions of the commercial courts of 19 August and 22 October 2004 had been challenged by the Prosecutor General by means of an ordinary appeal on points of law, the time-limit for which had been extended for the valid reason that the Prosecutor General had not been informed promptly of those decisions. The time-limit had been extended after a short delay, and the matter had been within the discretion of the Supreme Court. In contrast with the situation in Sovtransavto Holding v. Ukraine (no. 48553/99, ECHR 2002‑VII), in the present case, the Prosecutor General had enjoyed no special standing vis-à-vis other parties. The Prosecutor General had acted on behalf of the State, whose interests had been violated by the impugned decisions delivered in breach of the substantive and procedural law. The quashing of those decisions had entailed no change in the applicant company’s legal status as the owner of the shares in Kryvorizhstal, and had not hindered its participation in the subsequent fresh examination of the case.
139. As regards the proceedings before the general courts, the Government argued that the procedure of review in the light of newly discovered circumstances had been used to correct a miscarriage of justice and provide a remedy for N.’s legally protected interest or right to take part in the privatisation of Kryvorizhstal. This interest or right had been confirmed by the judgment of the Constitutional Court of 1 December 2004 after the applicant company’s case had already been examined by the first‑instance and appeal courts, and thus that judgment had not been taken into account by the courts. When examining the case in the light of that judgment, the Pecherskyi Court had not gone beyond its terms. In any event, it was not the Court’s task to substitute itself for the domestic courts in the interpretation and application of domestic law.
(ii) Alleged non-compliance with the guarantees of independence and impartiality
140. The Government stated that the relevant legislative provisions offered sufficient guarantees of independence and impartiality of the judiciary through the special procedure of the appointment and dismissal of judges, judges’ special legal and social status and protection, judges’ self‑administration, the guarantees of adequate financial support for the courts, and the legal prohibition of any influence on judges.
141. The applicant company’s allegations of undue pressure from the executive on the judges of the commercial courts dealing with its case after the 2004 election were devoid of any substance. The statements at issue were part of a political debate on a subject of public interest, and had not influenced the courts’ decisions in the applicant company’s case.
142. The Government further argued that the applicant company had had ample opportunity to challenge the judges dealing with its case, and the courts had given reasoned decisions in that regard.
(b) The applicant company
(i) The quashing of the final decisions in its cases and the subsequent reopening of the proceedings in February 2005
143. The applicant company stated that the procedure leading to the quashing of the decisions of the commercial courts of 19 August and 22 October 2004 had not been an ordinary one, as the time-limit for an appeal against those decisions had already expired at the time when the Prosecutor General had lodged his appeal with the Supreme Court. Furthermore, the impugned decisions had been quashed after the matter had been finally determined by the Supreme Court in the framework of the proceedings before the courts of general jurisdiction. Also, according to the applicant company, the Prosecutor General had provided no valid reason for his application for an extension of the time-limit for his appeal. Nor had such a reason existed, as the Prosecutor General must have been aware of the developments in the proceedings; at the outset of those proceedings the participation of the Office of the Prosecutor General had been ruled compulsory, and the ensuing proceedings had been closely followed by the public and reported in the media.
144. In relation to the proceedings before the general courts, N., who had not been a party to the proceedings terminated by the final decision of the Supreme Court of 27 December 2004, and thus who had had no right to lodge an appeal in the light of newly discovered circumstances, had provided no acceptable justification for requesting that the applicant company’s case be reconsidered. The findings in the judgment of the Constitutional Court of 1 December 2004 were vague and could not serve as a basis for her intervention in the applicant company’s case. The applicant company also pointed to the fact that N.’s extraordinary appeal had been examined by the same judge of the Pecherskyi Court who had heard the case at first instance in August 2004 (see paragraph 70 above).
(ii) Alleged non-compliance with the guarantees of independence and impartiality
145. The applicant company maintained its complaints of the alleged non-compliance with the guarantees of independence and impartiality, making reference to a speech by the President of Ukraine on 25 May 2006 in which he had criticised the Ukrainian judiciary and stated that the courts were affected by “deep corruption”. It also argued that the courts’ biased approach was evidenced by the fact that the proceedings before the commercial courts had been reopened on the same date as those before the civil courts (see paragraphs 42 and 78 above).
2. The Court’s assessment
(a) General principles
(i) The quashing of final decisions
146. The Court observes that the relevant Convention principles have been set out in Brumărescu v. Romania ([GC], no. 28342/95, §§ 61-62, ECHR 1999‑VII) and Ryabykh v. Russia (no. 52854/99, §§ 51-52, ECHR 2003-X). Notably, in Ryabykh, cited above, the Court held:
“51. ... [T]he right to a fair hearing before a tribunal as guaranteed by Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, among other things, that where the courts have finally determined an issue, their ruling should not be called into question (see Brumărescu, cited above, § 61).
52. Legal certainty presupposes respect for the principle of res judicata (ibid., § 62), that is the principle of the finality of judgments. This principle underlines that no party is entitled to seek a review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Higher courts’ power of review should be exercised to correct judicial errors and miscarriages of justice, but not to carry out a fresh examination. The review should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not a ground for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character.”
147. In a number of judgments which have followed, the Court has held that the principle of legal certainty may be set aside in order to ensure the correction of a “fundamental defect”. For instance, it has stressed that merely considering that the investigation in an applicant’s case was “incomplete and one-sided” or led to an “erroneous” acquittal cannot, in itself, in the absence of jurisdictional errors or serious breaches of court procedure, abuses of power, manifest errors in the application of substantive law or any other weighty reasons stemming from the interests of justice, indicate the presence of a fundamental defect in the previous proceedings (see, for instance, PSMA, spol. s r.o. v. Slovakia, no. 42533/11, §§ 69-70, 9 June 2015, with further references).
(ii) The guarantees of independence and impartiality
148. In accordance with the Court’s case-law, in order to establish whether a tribunal can be considered “independent” for the purposes of Article 6 § 1, regard must be had to, inter alia, the manner of appointment of its members and their term of office, the existence of safeguards against outside pressures, and the question of whether it presents an appearance of independence. As to the requirement of “impartiality” within the meaning of Article 6 § 1, there are two aspects to this requirement. Firstly, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. Under the objective test, it must be determined whether, quite apart from the judges’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality. In this respect, even appearances may be of a certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and, above all, in the parties to proceedings (see, among other authorities, Kleyn and Others v. the Netherlands [GC], nos. 39343/98 and 3 others, §§ 190-91, ECHR 2003‑VI).
149. In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Kleyn and Others, cited above, § 194).
150. The concepts of independence and objective impartiality are closely linked, and accordingly the Court will consider both issues together as they relate to the present case (see Kleyn and Others, cited above, § 192).
(b) Application of the general principles to the present case
151. Turning to the present case, the Court notes that both sets of proceedings at issue were terminated before February 2005. Following two different types of appeal – an appeal in the light of newly discovered circumstances in the proceedings before the courts of general jurisdiction, and an appeal on points of law in the commercial proceedings – court decisions favourable to the applicant company, which had a res judicata effect, were quashed, and both sets of proceedings were reopened. The Court will examine the applicant company’s complaints as regards each of the two sets of proceedings separately.
(i) Proceedings before the courts of general jurisdiction
152. The Court notes that the proceedings before the courts of general jurisdiction were terminated by the final decision of the Supreme Court of 27 December 2004. About a month later the proceedings were reopened upon an extraordinary appeal – an appeal in the light of newly discovered circumstances – by a private individual. That person had not participated in the original proceedings, and thus under the Ukrainian law then in force was not entitled to lodge such an appeal (see paragraph 96 above).
153. The Court observes that this situation is somewhat similar to that in Diya 97 v. Ukraine (no. 19164/04, 21 October 2010), which also concerned the reconsideration of terminated civil litigation following a domestic court’s departure from the applicable procedural rules. The Supreme Court had allowed the appeal of a person who had not been entitled to lodge such an appeal. In that case, the Court found that this was not justified and breached the principle of legal certainty. The Court does not find any reason to depart from those findings in the present case.
154. Moreover, having regard to the reasoning behind N.’s appeal, it was an “appeal in disguise” rather than a “conscientious effort to make good a miscarriage of justice” (see, for instance, Pravednaya v. Russia, no. 69529/01, § 33, 18 November 2004). Her appeal was based essentially on the argument which had already been examined and dismissed in the original proceedings – that the statutory right of every citizen to participate in the privatisation of State assets had been unlawfully restricted in the course of privatisation of Kryvorizhstal (see paragraphs 37 and 67 above). The same argument was also dismissed in the course of the proceedings instituted by N. and two other people in the period May-June 2004 (see paragraphs 27 and 28 above).
155. Although the Pecherskyy Court held that the judgment of the Constitutional Court of 1 December 2004 constituted newly discovered circumstances in the applicant company’s case, it was not demonstrated, either in the decision of the Pecherskyy Court of 17 February 2005 or in the Government’s submissions, that the findings in that judgment, which concerned the relationship between a joint-stock company and its shareholders, had altered or could have altered the view taken by the courts in the original proceedings – that citizens’ rights to participate in the privatisation of Kryvorizhstal had not been restricted, since they had been free to establish companies and participate in the competition through such companies (see paragraphs 37, 67 and 99 above).
156. In any event, the Court considers that neither the appeal of N. nor the decision of the Pecherskyy Court of 17 February 2005 were based on “circumstances of a substantial and compelling character” justifying the interference with the final and binding judgment in the applicant company’s favour.
(ii) Proceedings before the commercial courts
157. With regard to the proceedings before the commercial courts, the Court notes that those proceedings were terminated by the decision of the Higher Commercial Court of 22 October 2004 upholding the judgment of the Kyiv Commercial Court of 19 August 2004, a judgment which was favourable to the applicant company. No appeal was lodged against that decision of the Higher Commercial Court within the one-month time-limit provided for by the law then in force (see paragraph 90 above), and thus the decisions had a res judicata effect. However, upon an appeal lodged more than two months after the expiry of that time-limit by the Prosecutor General, who acted in the interests of the State, those decisions were quashed (see paragraphs 40-43 above).
158. In several previous cases raising somewhat similar procedural issues, the Court has held that if the time-limit for an ordinary appeal is extended after a considerable lapse of time, such a decision can breach the principle of legal certainty. While it is primarily within the domestic courts’ discretion to decide on any extension of the time-limit for an appeal, such discretion is not unlimited. In every case, the domestic courts should verify whether the reasons for extending the time-limit for an appeal can justify the interference with the principle of res judicata, especially when the domestic legislation does not limit the courts’ discretion as to either the time or the grounds for extending the time-limits, as in the present case (see paragraph 89 above). The courts are also required to indicate the reasons for their decision to extend the time-limits (see, for example, Ponomaryov v. Ukraine, no. 3236/03, § 41, 3 April 2008, and Ustimenko v. Ukraine, no. 32053/13, § 47, 29 October 2015).
159. In the present case, the proceedings were reopened after a delay of about four months, which is substantially shorter than the delays of over two years and one year respectively in Ponomaryov and Ustimenko (both cited above). However, this does not mean that, in the present case, for the purposes of Article 6 § 1 of the Convention, the Supreme Court enjoyed unfettered discretion when considering whether to reopen the proceedings upon the belated appeal of the Prosecutor General. The Supreme Court was required to apply the relevant procedural rules in compliance with the principle of legal certainty (see, for instance, Diya 97, cited above, § 47, with further references). Thus, the Court must firstly examine whether the Supreme Court’s decision to extend the time-limit for the appeal by the Prosecutor General was duly justified.
160. As indicated by the Government’s submissions, the Supreme Court endorsed the Prosecutor General’s argument that he had become aware of the decision of 22 October 2004 from a complaint by a member of Parliament, and granted the requested extension of time (see paragraphs 40‑42 above). Although it is not the Court’s task to substitute itself for the domestic courts in their assessment of the relevant circumstances, it notes that there are several aspects of the case which are important to the question of whether the above argument could justify the reopening of the case. Firstly, the Office of the Prosecutor General was informed of the original proceedings as early as July 2004, though no representative from that office attended the court hearings, notwithstanding the Kyiv Commercial Court’s specific order in that regard (see paragraph 35 above). Secondly, representatives from different State bodies took part in the proceedings and they became aware of the decision of 22 October 2004 on the same day, but lodged no appeal against it (see paragraphs 32 and 39 above). In his appeal, the Prosecutor General, who acted on behalf of the State, did not suggest that those representatives had been precluded from defending the State interests at stake in the case. Nor did he suggest that there had been any kind of communication problem within the Government resulting in the information about the outcome of the case in October 2004, which had been a matter of public concern (see paragraphs 13 and 14 above), not reaching those concerned. Thirdly, even assuming that the Office of the Prosecutor General had been informed of the decision of 22 October 2004 on 30 December 2004, no explanation was given as to why the appeal had been lodged more than a month after that date, and why the time-limit should be extended to 7 February 2005.
161. The Government did not argue that the Supreme Court had given consideration to those important aspects when deciding on the extension application by the Prosecutor General. Thus, the Court finds no acceptable justification for the Supreme Court’s decision to grant the extension requested by the Prosecutor General.
162. The Court further observes that the appeal of the Prosecutor General contained no information demonstrating that the lower courts had made judicial errors of the kind amounting to a miscarriage of justice or a fundamental defect (see paragraphs 40 and 41 above). No such information can be found in the decision of the Supreme Court of 1 March 2005, by which it annulled the lower courts’ decisions. The Supreme Court’s reasoning in that decision amounts merely to a different reading of legal texts (see paragraphs 43 above). It must also be added that the Supreme Court gave no consideration to possible implications of its decision for the principles of res judicata and legal certainty in the terminated litigation, and for the related interests of the parties, notably those of the applicant company.
163. In the light of the foregoing, the Court finds that, by accepting the belated appeal by the Prosecutor General and eventually quashing the decisions of the Kyiv Commercial Court of 19 August 2004 and the Higher Commercial Court of 22 October 2004, the Supreme Court infringed the principle of legal certainty.
164. The Court further observes that the impugned quashing of the decisions favourable to the applicant company and the subsequent reopening of the terminated proceedings took place after the President and the Prime Minister had made statements concerning the privatisation of Kryvorizhstal in January and February 2005 (see paragraphs 18 and 19 above). They unequivocally expressed the opinion that the enterprise “had been stolen”, that the dispute had to be reconsidered and that the enterprise had to be returned to the State. While the reopened proceedings were pending, the President and the Prime Minister made similar statements (see paragraphs 51, 56 and 62-64 above).
165. The Government contended that those statements had had no influence on the judges dealing with the proceedings in the present case, whereas the applicant company submitted no proof to the contrary. Nevertheless, the Court sees no reason to speculate on what effect those statements may have had on the course or the outcome of the proceedings in issue (see, mutatis mutandis, Sovtransavto Holding, cited above, § 80; Agrokompleks v. Ukraine, no. 23465/03, §§ 134, 6 October 2011; Kinský v. the Czech Republic, no. 42856/06, § 112, 9 February 2012; and Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, § 147, 21 January 2016). The Court considers that the impugned statements by the State officials between January and April 2005 and the Supreme Court’s unjustified decision to reconsider the dispute, those issues being taken together and cumulatively, objectively shed conspicuous light on the independence and impartiality of the commercial courts which had to deal with the case.
166. In the circumstances, the Court finds it unnecessary to deal with the Government’s argument concerning the domestic guarantees of judicial independence and impartiality (see, mutatis mutandis, Agrokompleks, cited above, §§ 132 and 136). Their argument that the applicant company had had procedural means to remedy the present issue has already been addressed and rejected by the Court in the context of the admissibility of this part of the applicant company’s complaints (see paragraph 129 above).
(iii) Conclusion
167. In the light of the foregoing considerations, the Court finds that the decisions leading to the annulment of the decisions of the courts of general jurisdiction of 25 August and 1 and 27 December 2004, and the decisions of the commercial courts of 19 August and 22 October 2004, infringed the principle of legal certainty and the applicant company’s related legitimate interest of respect for the final determination of its civil rights in those proceedings. The impugned proceedings, seen as a whole and taking into account the statements made by the President and the Prime Minister between January and April 2005, did not meet the requirements of fairness within the meaning of Article 6 § 1 of the Convention. Accordingly, the Court rejects the Government’s objections as regards the applicant company’s victim status and its concerns as to the independence and impartiality of the commercial courts dealing with its case, which have been previously joined to the merits (see paragraphs 116 and 131 above) and considers it unnecessary to examine the applicant company’s other complaints relating to the quashing of those decisions in the context of this part of the case (see paragraphs 102 and 103 above).
168. Consequently, there has been a violation of Article 6 § 1 of the Convention in this regard.
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION
169. The applicant company complained of a violation of Article 1 of Protocol No. 1 on account of (i) the authorities’ alleged failure to ensure that it could enjoy its possessions in accordance with the final and binding decisions issued in its cases before January 2005; (ii) the quashing of those decisions in February 2005 and various shortcomings in the related proceedings (see paragraphs 102 and 103 above); (iii) the allegedly inconsistent decisions taken by the courts after the reopening of the proceedings in 2005; and (iv) the alleged lack of independent and impartial reconsideration of its cases in 2005. The applicant company also complained that it had been deprived of its assets – 93.02% of the Kryvorizhstal share capital – unlawfully because of one of its owners’ political opposition to the authorities, and that the authorities had failed to reimburse it for the improvements it had made to those assets. Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
A. Admissibility
1. The parties’ submissions
(a) The Government
170. The Government raised objections as to the admissibility of the applicant company’s complaints under Article 1 of Protocol No. 1 on the basis of non-exhaustion of domestic remedies, failure to comply with the six-month rule and the absence of victim status.
171. In particular, the Government argued that in order to comply with the rule of exhaustion of domestic remedies under Article 35 § 1 of the Convention as regards this part of its complaints, the applicant company should have lodged with the commercial courts a claim for its recognition as a bona fide acquirer of the Kryvorizhstal share capital based on the premise that it had not been aware that the authorities had acted ultra vires when transferring the disputed shares to it (see paragraph 52 above).
172. Also, according to the Government, the applicant company failed to comply with the rule of exhaustion of domestic remedies, as its counterclaim was not lodged in accordance with the relevant procedural regulations (see paragraph 34 above). The applicant company had to lodge it separately or to change it so that it was directed against the authorities and not the private company.
173. The Government further argued that the applicant company had not had the victim status on account of the alleged deprivation of its possessions, as it had lodged its relevant complaints under Article 1 of Protocol No. 1 before the proceedings concerning the title to the Kryvorizhstal share capital had been completed on 31 August 2005 (see paragraph 60 above). For the same reason, the Government argued that those complaints had been premature.
174. The Government stated that, as the applicant company had raised no complaint under that provision between 31 August 2005 and 28 February 2006, that is during the six months following the final determination of its case by the Supreme Court (see paragraph 60 above), this part of the application could be rejected also as lodged out of time.
(b) The applicant company
175. The applicant company contested the Government’s submissions, stating that the core issue in the case - the validity of the contract of 14 June 2004 - had been determined in the framework of the proceedings before the commercial courts (see paragraph 51 above), whereas the procedure relating to the recognition of the status of bona fide acquirer had had no relevance to the dispute in question.
176. The applicant company also reiterated its argument that its appeals to the Higher Commercial Court and the Supreme Court had provided no effective remedy, since the judgment of the Kyiv Commercial Court of 22 April 2005 had become effective on 2 June 2005 and the State authorities had started the reprivatisation process before the higher courts had examined its appeals (see paragraph 125 above).
2. The Court’s examination
177. At the outset, the Court notes that the applicant company’s complaint regarding the authorities’ failure to ensure enforcement of the final decisions adopted in its cases before January 2005 is wholly unsubstantiated. Notably, the applicant company failed to specify what measures the authorities had had to take in that regard.
178. Also, the Court has rejected the applicant company’s complaint under Article 6 § 1 of the Convention regarding the allegedly inconsistent decisions taken by the courts after the reopening of the proceedings in 2005 as manifestly ill-founded (see paragraphs 118 and 119 above), and there is no reason to make a different decision as regards the same complaint by the applicant company under Article 1 of Protocol No. 1.
179. The Court further notes that the applicant company failed to submit any reliable evidence in support of its complaint that it had been deprived of its assets because of one its owners’ political opposition to the authorities.
180. Thus, those parts of the applicant company’s complaints under Article 1 of Protocol No. 1 must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
181. The Court further notes that the applicant company’s remaining complaints under that provision are essentially based on the argument that the unfair proceedings in its cases had entailed the unlawful deprivation of its property (see paragraph 169 above). These complaints are closely linked to those under Article 6 § 1 of the Contention, which the Court has examined above and declared admissible (see paragraphs 117 and 132 above). The Government provided no new argument compelling the Court to depart from those findings as regards this part of the applicant company’s complaints under Article 1 of Protocol No. 1. Notably, they did not demonstrate that the applicant company’s recourse to the bona fide acquirer proceedings or lodging its counter-claim in a different manner could have remedied the alleged procedural shortcomings or could have led to a different outcome in the case. Accordingly, this part of the applicant company’s complaints under Article 1 of Protocol No. 1 must likewise be declared admissible.
B. Merits
182. The applicant complained that the unfair manner in which the proceedings concerning the title to the Kryvorizhstal share capital had been conducted had had entailed a violation of its right to peaceful enjoyment of its property under Article 1 of Protocol No. 1.
183. The Government contended that the applicant company had been deprived of the Kryvorizhstal share capital lawfully and in the public interest of ensuring fair and efficient privatisation and the best financial result for the State Budget and the budgets of local and regional authorities. According to the Government, States enjoyed a wide margin of appreciation in that area. Furthermore, the impugned deprivation was not disproportionate, as the applicant company received back promptly the sum it had paid for the shares and claimed no further compensation. Thus, it bore no excessive individual burden.
184. The Court reiterates that Article 1 of Protocol No. 1 comprises three rules: the first rule, set out in the first sentence of the first paragraph, is of a general nature and enunciates the principle of the peaceful enjoyment of property; the second rule, contained in the second sentence of the first paragraph, covers the deprivation of property and subjects it to conditions; the third rule, stated in the second paragraph, recognises that States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be read in the light of the general principle laid down in the first rule (see, among other authorities, Sporrong and Lönnroth v. Sweden, 23 September 1982, § 61, Series A no. 52, and Depalle v. France [GC], no. 34044/02, § 77, ECHR 2010).
185. The Court further reiterates that the first and most important requirement of Article 1 of Protocol No. 1 is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful: the second sentence of the first paragraph authorises a deprivation of possessions only “subject to the conditions provided for by law” and the second paragraph recognises that States have the right to control the use of property by enforcing “laws”. Moreover, the rule of law, one of the fundamental principles of a democratic society, is inherent in all the Articles of the Convention (see Capital Bank AD v. Bulgaria, no. 49429/99, §§ 132-33, ECHR 2005-XII (extracts), with further reference to Iatridis v. Greece [GC], no. 31107/96, § 58, ECHR 1999-II).
186. The principle of lawfulness also presupposes that the applicable provisions of domestic law are sufficiently accessible, precise and foreseeable in their application (see Beyeler v. Italy [GC], no. 33202/96, §§ 109-10, ECHR 2000-I). Likewise, domestic law must provide a measure of legal protection against arbitrary interferences by the public authorities with the rights safeguarded by the Convention (see Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI). It is true that Article 1 of Protocol No. 1 contains no explicit procedural requirements and the absence of judicial review does not amount, in itself, to a violation of that provision (see Fredin v. Sweden (no. 1), 18 February 1991, § 50, Series A no. 192, and S.C. Antares Transport S.A. and S.C. Transroby S.R.L. v. Romania, no. 27227/08, § 46, 15 December 2015). Nevertheless, it implies that any interference with the peaceful enjoyment of possessions must be accompanied by procedural guarantees affording to the individual or entity concerned a reasonable opportunity of presenting their case to the responsible authorities for the purpose of effectively challenging the measures interfering with the rights guaranteed by that provision. In ascertaining whether that condition has been satisfied, a comprehensive view must be taken of the applicable judicial and administrative procedures (see Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV with further references, and Stolyarova v. Russia, no. 15711/13, § 43, 29 January 2015).
187. Furthermore, any interference with the enjoyment of a right or freedom recognised by the Convention must pursue a legitimate aim. The principle of a “fair balance” inherent in Article 1 of Protocol No. 1 itself presupposes the existence of a general interest of the community. Moreover, it should be reiterated that the various rules incorporated in Article 1 are not distinct in the sense of being unconnected and that the second and third rules are concerned only with particular instances. One of the effects of this is that the existence of a “public interest” required under the second sentence, or the “general interest” referred to in the second paragraph, are in fact corollaries of the principle set forth in the first sentence, so that an interference with the exercise of the right to the peaceful enjoyment of possessions within the meaning of the first sentence of Article 1 must also pursue an aim in the public interest (see Beyeler, cited above, § 111).
188. In addition, Article 1 of Protocol No. 1 requires that any interference be reasonably proportionate to the aim sought to be realised (see Jahn and Others v. Germany [GC], nos. 46720/99, 72203/01 and 72552/01, §§ 81‑94, ECHR 2005‑VI). The requisite fair balance will not be struck where the person concerned bears an individual and excessive burden (see Sporrong and Lönnroth, cited above, §§ 69-74).
189. Turning to the present case, the Court observes that it transpires to be the parties’ common agreement that there was an interference with the applicant company’s right to peaceful enjoyment of possessions which ultimately amounted to a “deprivation” of its property.
190. The parties mainly disagreed as to whether this interference had been lawful within the meaning of Article 1 of Protocol No. 1, the applicant company’s principal arguments being directed against the manner in which the proceedings culminating in the decision depriving it of the Kryvorizhstal share capital had been conducted. The Court will examine those arguments in turn.
191. Notably, the applicant company argued that Article 1 of Protocol No. 1 had been violated because of the annulment of the final decisions in its civil and commercial cases in February 2005. In this regard, the Court notes that it has found that the annulment at issue was in violation of the requirement of legal certainty under Article 6 § 1 of the Convention (see paragraph 167 above). However, the situation in the present case differs from the vast majority of cases in which the Court has found violations of Article 1 of Protocol No. 1 as regards the annulment of final and binding decisions (see, for example, Agrotehservis v. Ukraine, no. 62608/00, 5 July 2005, and Timotiyevich v. Ukraine, no. 63158/00, 8 November 2005).
192. In the present case, the domestic judicial decisions whose annulment the Court has held to be contrary to the principle of legal certainty did not directly provide for a transfer of the title in respect of the Kryvorizhstal share capital or the shares to the applicant company. At the time the courts examined the cases in 2004 the applicant company was formally and actually in possession of the assets in dispute. Although the commercial courts also endorsed the applicant company’s title in respect of those assets and banned any actions capable of violating that title, no party was required to take specific action in that regard (compare and contrast with Ivanova v. Ukraine, no. 74104/01, § 37, 13 September 2005, in which the defendant in the original proceedings had been ordered to take specific action in order not to impede the applicant’s enjoyment of her property).
193. The Court further notes that the applicant company was formally and actually deprived of the Kryvorizhstal shares in June 2005 (see paragraph 21 above), that is after the dispute had been determined on the merits by the judgment of the Kyiv Commercial Court of Appeal of 2 June 2005, which, according to the procedure, became enforceable on that date (see paragraphs 56-57 above).
194. Nonetheless, the Court is mindful that the impugned annulment of the previous decisions in the applicant company’s favour created a situation of legal uncertainty, essentially removing the res judicata protection of the validity of the applicant company’s title to the Kryvorizhstal share capital and leading to a full reconsideration of that matter (see paragraph 167 above). Thus, even though the impugned annulment did not directly result in a change in the applicant company’s title to or actual possession of the Kryvorizhstal shares, it might arguably constituted an interference with its right to those assets (see, mutatis mutandis, Rysovskyy v. Ukraine, no. 29979/04, § 68, 20 October 2011).
195. In any event, in the present case the decisions resulting in the reopening of the proceedings in the applicant company’s case cannot be taken in isolation. Regard must be had to the fact that the applicant company, unlike the applicants in the cases of Agrotehservis, Ivanova and Timotiyevich, cited above, was eventually awarded and actually paid compensation for its lost assets. While the applicant company argued that that sum had not covered the damage it had sustained as a result of being deprived of its assets, no evidence was submitted in support of that argument.
196. In so far as the applicant company argued that it had been unlawfully deprived of its property because of other procedural shortcomings in the domestic proceedings, the Court reiterates that not every procedural shortcoming in a case will take an interference with the right of property outside the scope of the “principle of lawfulness” (see Ukraine-Tyumen v. Ukraine, no. 22603/02, § 52, 22 November 2007).
197. The Court recalls that in certain exceptional cases it has found a violation of Article 1 of Protocol No. 1 on account of the unfair manner in which the relevant court proceedings had been conducted, including the “blatant interference” of the State authorities at the highest level in those proceedings (see Sovtransavto Holding, cited above, §§ 97-98, and Agrokompleks, cited above, §§ 135, 138 and 170).
198. The Court discerns no such situation in the instant case, as it does not concern the kind of interference by public officials in the judicial process, as was in the cases of Sovtransavto Holding and Agrokompleks, both cited above. Furthermore, there is no basis for a finding that the impugned proceedings in the present case were flawed to the extent that their outcome could no longer be accepted or that the decisions issued by the commercial courts between April and August 2005 (see paragraphs 51, 56, 59 and 60 above) were contrary to the “principle of lawfulness”, within the meaning of Article 1 of Protocol No. 1. Nor did the applicant company demonstrate that it had been denied the opportunity to defend effectively its property rights and interests at stake in the course of the reopened proceedings before the commercial courts.
199. The Court further notes that the applicant company did not contest the Government’s argument that the impugned interference had been in the public interest. Nor did it demonstrate that it had been made to bear an excessive individual burden.
200. In the light of the foregoing, the Court finds that there has been no violation of Article 1 of Protocol No. 1.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
201. The applicant company complained under Articles 10, 11 and 14 of the Convention, alleging that it had been the victim of persecution by the authorities for the political activities of one of its owners.
202. The applicant company also complained under Article 18 of the Convention that the procedural limitations applied to it during the hearing resulting in the Pecherskyy Court’s decision of 17 February 2005, and that decision itself, had been politically motivated.
203. The Court has examined the rest of the applicant company’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
204. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
1. The parties’ submissions
(a) The applicant company
205. The applicant company claimed 12,900,000,000 United States dollars, the equivalent of about 10,000,000,000 euros (EUR) at the material time, in respect of pecuniary damage, referring mainly to an increase in the price of Kryvorizhstal, the income that company had received in the period of 2005‑2007 and the applicant company’s allegedly related loss of dividends.
(b) The Government
206. The Government contested the applicant company’s claim.
(c) The third-party intervener
207. ArcelorMittal Duisburg GmbH submitted that it had made significant investments in Kryvorizhstal since acquiring it in October 2005, and that it feared possible substantial losses if the applicant company succeeded in the present case.
208. In particular, ArcelorMittal Duisburg GmbH was of the view that, in bringing its case before the Court, the applicant company was ultimately seeking restoration of its ownership rights over Kryvorizhstal. According to ArcelorMittal Duisburg GmbH, if the Court found that the domestic proceedings at issue had not complied with the requirements of the Convention, the applicant company might request that the case be reheard at domestic level, which might create grounds for annulling the 2005 privatisation of Kryvorizhstal and entail ArcelorMittal Duisburg GmbH’s loss of its title in respect of that enterprise.
2. The Court’s examination
209. The Court does not discern any causal link between the violation found and the pecuniary damage alleged by the applicant company; it therefore rejects its claim.
B. Costs and expenses
210. The applicant company lodged no claim for costs and expenses.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Joins to the merits the Government’s objection as to the applicant company’s victim status in respect of its complaints under Article 6 § 1 of the Convention about the quashing of the final court decisions favourable to it in February 2005, and rejects it;
2. Joins to the merits the Government’s objection that the applicant company’s complaint under Article 6 § 1 of the Convention regarding a breach of the guarantees of independence and impartiality in the proceedings before the commercial courts between February and August 2005 was manifestly ill-founded, and rejects it;
3. Declares the following complaints admissible:
(a) the applicant company’s complaints under Article 6 § 1 of the Convention about the quashing of the final court decisions favourable to it in February 2005; and
(b) the applicant company’s complaint under Article 6 § 1 of the Convention regarding a breach of the guarantees of independence and impartiality in the proceedings before the commercial courts between February and August 2005; and
(c) the applicant company’s complaints under Article 1 of Protocol No. 1 that the proceedings concerning its assets – 93.02% of the Kryvorizhstal share capital – had been conducted in the unfair manner and that the authorities had failed to reimburse it for the improvements it had made to those assets;
4. Declares the remainder of the application inadmissible;
5. Holds that there has been a violation of Article 6 § 1 of the Convention;
6. Holds that there has been no violation of Article 1 of Protocol No. 1;
7. Dismisses the applicant company’s claim for just satisfaction.
Done in English, and notified in writing on 26 June 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Vincent A. De Gaetano
Section Registrar President