Communicated on 14 November 2018<\/p>\n
FOURTH SECTION<\/p>\n
Application no. 2836\/10
\nTSENTR \u2018UKRASA\u2019
\nagainst Ukraine
\nlodged on 30 December 2009<\/p>\n
STATEMENT OF FACTS<\/p>\n
The applicant company, Center of Sweet Decoration \u201cUkrasa\u201d (Tsentr \u201cUkrasa\u201d), is a privately owned company, incorporated under the laws of Ukraine.<\/p>\n
A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n The facts of the case, as submitted by the applicant company, may be summarised as follows.<\/p>\n On 15 June 2004 the Bailiffs\u2019 Service concluded a contract with a specialised State enterprise, U.Y., which delegated to the latter the sale at a public auction of an unfinished building situated in Rivne, Ukraine (hereinafter \u201cthe disputed building\u201d) that the Bailiffs\u2019 Service had seized. The property belonged to the R.A.S., a subsidiary company of an open joint-stock company (\u201cthe OJSC\u201d). It had been seized under an order issued by the Bailiffs\u2019 Service on 16 April 2004. The sale of the property was intended to cover the debts of the R.A.S.<\/p>\n On 2 July 2004 U.Y. conducted the public auction, and the applicant company purchased the disputed building.<\/p>\n On the same day, the Bailiffs\u2019 Service issued the applicant company with a certificate of purchase of the disputed building, and a private notary issued it with title to the disputed building.<\/p>\n 1.\u00a0\u00a0Proceedings in case no. 12\/254<\/em><\/p>\n On 16 July 2004 the OJSC instituted proceedings in the Rivne Regional Commercial Court against the Bailiffs\u2019 Service, the applicant company and U.Y., seeking to invalidate the actions taken by the Bailiffs\u2019 Service to sell the disputed building, the public auction for the sale of the disputed building, the certificate of purchase of the disputed building following the public auction and the applicant company\u2019s title to the disputed building, and further seeking to reclaim the disputed building from the applicant company\u2019s possession. The R.A.S. participated in the proceedings as a third party, on the side of the claimant, without bringing an independent claim.<\/p>\n On 3 August 2004 the Rivne Regional Commercial Court partly allowed the claim and declared the public auction, the certificate of purchase and the applicant company\u2019s title to the disputed building to be invalid, and ordered that the property be returned to the claimant. The claim regarding the validity of the actions of the Bailiffs\u2019 Service was closed for lack of jurisdiction.<\/p>\n On 27 October 2004 the Lviv Commercial Court of Appeal upheld the decision of the first-instance court.<\/p>\n On 24 March 2005 the Higher Commercial Court of Ukraine quashed the above decisions finding that the courts had failed to establish all the circumstances of the case and had failed to involve the local department of the State Property Fund in the proceedings. The case was remitted to the first-instance court for reconsideration.<\/p>\n On 17 August 2005 the Rivne Regional Commercial Court closed the proceedings regarding the validity of the actions of the Bailiffs\u2019 Service for lack of jurisdiction and rejected the rest of the claim as unsubstantiated.<\/p>\n On 31 October 2005 the Lviv Commercial Court of Appeal upheld the above decision.<\/p>\n On 2 March 2006 the Higher Commercial Court of Ukraine upheld the decisions of the lower courts.<\/p>\n On 28 December 2006 the Supreme Court of Ukraine refused to open cassation proceedings.<\/p>\n 2.\u00a0\u00a0Proceedings in case no. 2a-414\/07<\/em><\/p>\n On 1 February 2007 the R.A.S. filed an administrative claim with the Rivne City Court against the Bailiffs\u2019 Service and the applicant company, seeking to invalidate the actions of the former in respect of the contract directing the sale of the disputed building, the order of 16 April 2004 on the seizure of the disputed building, and the certificate of 2 July 2004 issued following the sale of the disputed building at public auction.<\/p>\n On 3 December 2007 the Rivne City Court partly allowed the claim, invalidating the actions of the Bailiffs\u2019 Service in taking steps to sell the disputed building and the order of 16 April 2004 on the seizure of the disputed building. The court rejected the claim regarding the validity of the certificate of 2 July 2004 as unsubstantiated, referring to the existing decision of the commercial courts in that matter.<\/p>\n On 18 September 2008 the Lviv Administrative Court of Appeal upheld the decision of the first-instance court.<\/p>\n On 9 February 2011 the Higher Administrative Court of Ukraine upheld the decisions of the lower courts.<\/p>\n 3.\u00a0\u00a0Proceedings in case no. 15\/140<\/em><\/p>\n In November 2008, referring to the appellate court\u2019s decision in case no.\u00a02a-414\/07, the R.A.S. filed a claim with the Rivne Regional Commercial Court against U.Y., the applicant company and the Bailiffs\u2019 Service, seeking to invalidate the public auction for the sale of the disputed building of 2 July 2004, the certificate of purchase of the disputed building and the applicant company\u2019s title to the disputed building.<\/p>\n On 12 December 2008 the Rivne Regional Commercial Court allowed the claim and declared the public auction, the certificate of purchase of the disputed building and the applicant company\u2019s title to the disputed building to be invalid.<\/p>\n On 12 March 2009 the Lviv Commercial Court of Appeal upheld the decision of the first-instance court. The appellate court\u2019s reasoning was based on the final decision in case no. 2a-414\/07, which invalidated the actions of the Bailiffs\u2019 Service.<\/p>\n The applicant company appealed in cassation. The applicant company pleaded, among other arguments, that the proceedings should be closed in view of the res judicata effect of the decisions rendered in case no. 12\/254, which had concerned the same parties and the same subject matter, and which had been resolved as far back as 2005.<\/p>\n On 12 August 2009 the Higher Commercial Court of Ukraine upheld the decision of the appellate court. The court failed to comment on the proceedings in case no. 12\/254.<\/p>\n On 1 October 2009 the Supreme Court of Ukraine refused to open cassation proceedings.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n Code of Commercial Procedure of 6 November 1991<\/p>\n Article 80 of the Code of Commercial Procedure provides, among other stipulations, that the commercial court must close court proceedings if a previous decision has been rendered by a commercial court, or other body with jurisdiction, in a case between the same parties, in relation to the same subject matter, and which was based on the same grounds.<\/p>\n COMPLAINT<\/strong><\/p>\n The applicant company complains under Article 6 of the Convention that in case no. 15\/140 the commercial courts disregarded the final decisions rendered in case no. 12\/254 relating to the validity of the public auction and its title to the disputed building.<\/p>\n QUESTION TO THE PARTIES<\/strong><\/p>\n Was there a violation of Article 6 \u00a7 1 of the Convention in that the final judicial decisions in case no. 12\/254 were disregarded by the national judges in case no. 15\/140 and the dispute about the applicant company\u2019s title to the property was re-considered by the national courts?<\/p>\n