I incorrectly predicted that there's no violation of human rights in ZAKARPATSKA OBLASNA SPILKA SPOZHYVCHYKH TOVARYSTV v. UKRAINE.

Judgment

FIFTH SECTION
CASE OF ZAKARPATTYA REGIONAL UNION OF CONSUMER COOPERATIVES AND OTHERS v. UKRAINE
(Applications nos. 65719/10 and 2 others)

JUDGMENT

Art 6 § 1 (civil) • Return without examination of first applicant’s repeated cassation appeal based on a Constitutional Court’s decision interpreting the competence of the Supreme Court in the resolution of commercial disputes • Unforeseeable restriction of right to access to a court resulting from unjustified delay in dealing with the appeal lodged prior to Constitutional Court’s decision • Overall length of commercial proceedings not exceeding what may be considered reasonable

STRASBOURG
15 September 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zakarpattya Regional Union of Consumer Cooperatives and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Stéphanie Mourou-Vikström, Lətif Hüseynov, Lado Chanturia, Ivana Jelić, judges, and Victor Soloveytchik, Section Registrar,
Having regard to:
the applications (nos. 65719/10, 42520/10 and 54581/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association registered in Ukraine, Zakarpattya Regional Union of Consumer Cooperatives and Others v. Ukraine (Zakarpatska Oblasna Spilka Spozhyvchykh Tovarystv) (“the first applicant”), and two Ukrainian nationals, Ms Neonila Grygoriivna Ageyeva (“the second applicant”) and Ms Svitlana Valentynivna Khlabystova (“the third applicant”), on the various dates indicated in the appended table;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 6 § 1 of the Convention concerning the alleged lack of access to court (as regards all the applications) and unreasonable length of the proceedings (as regards the first applicant) and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 3 May 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case principally concerns the alleged restriction of the applicants’ access to a court under Article 6 § 1 of the Convention following a decision of the Constitutional Court interpreting the competence of the Supreme Court in the resolution of commercial disputes. THE FACTS
2. The first applicant is an association of consumer cooperatives which has its registered offices in Uzhhorod. It unites the consumer cooperatives of the Uzhhorod Region. Having been granted legal aid, the first applicant was represented before the Court by Mr M. Tarakhkalo, Ms V. Lebid and Ms N. Huseinzade, lawyers practising in Kyiv. 3. The second applicant was born in 1939 and lived in Luhansk. She died on 5 December 2015. The applicant’s cousin, Ms Neonila Ivanivna Gryshchenko, wished to pursue the proceedings before the Court in her stead. 4. The third applicant was born in 1960 and lives in Yalta. She was represented before the Court by Ms K.V. Khlabystova, a lawyer practising in Yalta. 5. The Government were represented by their Agent, Mr I. Lishchyna. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 9 December 2002 the first applicant instituted proceedings in the Zakarpattya Regional Commercial Court seeking the invalidation of a purchase agreement. 8. In the course of the examination of the case by the first-instance court, the proceedings were adjourned a number of times. The adjournments, which lasted for a total period of about two years and nine months, were due to the failure of the first applicant’s representative to appear before the court, requests by the first applicant to adjourn the proceedings pending the examination by the law-enforcement authorities of various complaints related to the subject matter of the dispute, and the need for the parties to the proceedings to take time to familiarise themselves with the applicant’s repeated extension of the scope of its allegations. 9. On 6 July 2007 the Zakarpattya Regional Commercial Court found against the first applicant. That decision was upheld on appeal on 20 September 2007. 10. On 24 January 2008, examining an ensuing cassation appeal, the Higher Commercial Court (“the HCC”) quashed the above-mentioned decisions and remitted the case to the Zakarpattya Regional Commercial Court for a fresh examination. 11. On 3 April 2008 the Supreme Court, acting as a second-instance court of cassation, refused a repeated cassation appeal lodged by the defendant against the HCC’s decision of 24 January 2008. 12. On 10 February 2009 the Zakarpattya Regional Commercial Court found against the first applicant. That decision was upheld by the Court of Appeal and the HCC on 29 July and 3 December 2009 respectively. 13. On 29 December 2009 the first applicant lodged a repeated cassation appeal with the HCC against its ruling of 3 December 2009. The appeal was addressed to the Supreme Court of Ukraine as the second-instance court of cassation. 14. On 31 May 2010 the HCC returned the first applicant’s repeated cassation appeal with a covering letter signed by an officer of the court registry. The relevant parts of the letter read:
“In its ruling of 11 March 2010 the Constitutional Court of Ukraine ... held that the constitutional status of the Supreme Court of Ukraine was such that it ... was not authorised to act as a court of cassation in respect of decisions of the higher specialised courts. ... Accordingly, the rulings (or decisions) of a higher specialised court may not be subject to a cassation appeal before the Supreme Court of Ukraine. In view of the above, the cassation appeal of [the applicant] ... and the enclosed documents are being returned to the [applicant].”
15. On 18 December 2008 the Luhansk Regional Commercial Court ordered the liquidation of the L.A.P. company in the course of bankruptcy proceedings. 16. On 31 March 2009 the second applicant, one of L.A.P.’s creditors, lodged an appeal against that decision. 17. On 2 April 2009 the Luhansk Commercial Court of Appeal rejected the appeal as lodged out of time. 18. On 22 September 2009 the Luhansk Commercial Court of Appeal reviewed the decision of 18 December 2008 on appeals lodged by other creditors of L.A.P. and upheld it. 19. In the meantime, on 13 April 2009, the second applicant had lodged a cassation appeal with the HCC against the decision of 18 December 2008. Having initially accepted the appeal for consideration, on 3 March 2010 the HCC discontinued the proceedings on the grounds that the second applicant had not challenged the ruling of 22 September 2009 in which the Luhansk Commercial Court of Appeal had upheld the decision of 18 December 2008. The HCC noted that the second applicant could appeal against the ruling of 22 September 2009 if she so wished. 20. On 22 March 2010 the second applicant lodged a repeated cassation appeal against the HCC’s ruling of 3 March 2010. Relying on Article 111-16 of the Code of Commercial Procedure of Ukraine, the second applicant lodged the cassation appeal and accompanying documents with the HCC, intending for them to be transferred to the Supreme Court for consideration. 21. On 5 May 2010 the second applicant’s submissions were returned to her with a covering letter signed by an officer of the HCC’s Registry. The relevant parts of the letter read:
“In its ruling of 11 March 2010, the Constitutional Court of Ukraine ... held that the constitutional status of the Supreme Court of Ukraine was such that ... it was not authorised to act as a court of cassation in respect of decisions of the higher specialised courts. ... Accordingly, the rulings (or decisions) of a higher specialised court may not be subject to a cassation appeal to the Supreme Court of Ukraine. In view of the above, the cassation appeal of [the applicant] ... and the enclosed documents are being returned to the [applicant].”
22. In August 2009 the third applicant, acting as a private entrepreneur, instituted proceedings in the Commercial Court of the Autonomous Republic of Crimea, seeking an order for the Gurzuf Village Council to renew a commercial lease agreement with her. 23. After the first-instance and appellate courts had rejected her claims, the third applicant lodged a cassation appeal with the HCC. 24. On 23 March 2010 the HCC rejected the third applicant’s cassation appeal. 25. On 8 April 2010 the third applicant lodged a further cassation appeal with the HCC against its ruling of 23 March 2010. The cassation appeal was addressed to the Supreme Court, and the third applicant intended for it to be forwarded to the Supreme Court, together with the case file. 26. On 11 June 2010 the HCC returned the third applicant’s cassation appeal with a covering letter signed by an officer of the HCC Registry. The relevant parts of the letter read:
“In its ruling of 11 March 2010 the Constitutional Court of Ukraine ... held that the constitutional status of the Supreme Court of Ukraine was such that it ... was not authorised to act as a court of cassation in respect of decisions of the higher specialised courts. ... Accordingly, the rulings (or decisions) of a higher specialised court may not be subject to a cassation appeal to the Supreme Court of Ukraine. In view of the above, the cassation appeal of [the applicant] ... and the enclosed documents are being returned to the [applicant].”
27. On 9 July 2010 the third applicant sent her cassation appeal directly to the Supreme Court, requesting that it be accepted for consideration. She submitted, in particular, that the HCC had arbitrarily refused to fulfil its obligation, as set out in Article 111-16 of the Code of Commercial Procedure, to forward her cassation appeal, together with the case file, to the Supreme Court for review. 28. On 16 July 2010 the Deputy President of the Commercial Disputes Chamber of the Supreme Court returned the third applicant’s submissions to her with a covering letter, the relevant parts of which stated:
“... In accordance with the current provisions of the Code of Commercial Procedure of Ukraine, the Supreme Court of Ukraine is not empowered to decide whether to grant [you] leave to lodge a cassation appeal ... in the absence of a case file. At the same time, procedural law does not empower the Supreme Court of Ukraine to request a case file on its own initiative in order to review the rulings of a [lower] court.”
29. On 27 July 2010 the third applicant sent a letter to the President of the HCC, complaining that her cassation appeal had mistakenly been returned to her, and demanding that it be forwarded to the Supreme Court together with the case file. She enclosed the Supreme Court’s letter of 16 July 2010 and emphasised that there was nothing in the letter indicating that the ruling of the Constitutional Court had invalidated the provisions of Chapter XII-2 of the Code of Commercial Procedure. Accordingly, those provisions had been in force at the time when she had first lodged her cassation appeal, and had to be complied with in her case. The third applicant also argued that, having consulted the Supreme Court’s website, she had discovered that the Commercial Disputes Chamber had continued to operate in June 2010 and had a schedule of hearings posted on its web page. 30. On 11 August 2010 an officer of the HCC’s Registry replied to the third applicant, saying that there had been no mistake in not forwarding her cassation appeal to the Supreme Court, as the Constitutional Court had clearly established in its ruling of 11 March 2010 that the Supreme Court was not authorised to act as a court of cassation in respect of rulings given by the HCC. RELEVANT LEGAL FRAMEWORK AND PRACTICE
31. The relevant provisions of the Constitution of Ukraine read:
Article 6
“State power in Ukraine shall be exercised on the basis of its division into legislative, executive and judicial power. Bodies of legislative, executive and judicial power shall exercise their authority within the limits established by this Constitution, and in accordance with the laws of Ukraine.”
Article 8
“In Ukraine, the principle of the rule of law is recognised and effective. ...”
Article 125
“In Ukraine, the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation. The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction. The respective higher courts are the highest judicial bodies of the specialised courts. ...”
Article 129
“... The main principles of the administration of justice are:
...
(8) guaranteeing the possibility of an appeal or cassation appeal against a court decision, except in cases provided for by law; ...”
Article 147
“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine. The Constitutional Court of Ukraine shall decide issues relating to the conformity of laws and other legal instruments with the Constitution of Ukraine, and provide the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”
Article 150
“The Constitutional Court of Ukraine shall have the power to:
(1) decide issues relating to the conformity with the Constitution of Ukraine (constitutionality) of:
- laws and other legal instruments of the Verkhovna Rada of Ukraine; ...
(2) give the official interpretation of the Constitution of Ukraine and the laws of Ukraine;
With regard to the issues set out in this Article, the Constitutional Court of Ukraine shall adopt final rulings which are binding throughout the territory of Ukraine, and are not subject to appeal.”
Article 152
“... Laws and other legal instruments, or separate provisions thereof, which are deemed to be unconstitutional shall lose legal force from the day the Constitutional Court of Ukraine adopts a decision on their unconstitutionality.”
32. The relevant provisions of the Code, as worded between 15 May 2003 and 7 July 2010, read:
Chapter XII-2. Review of judicial decisions of the Higher Commercial Court of Ukraine by the Supreme Court of Ukraine
Article 111-14. The right to lodge a cassation appeal against the judicial decisions of the Higher Commercial Court of Ukraine
“The parties to a case and the Prosecutor General of Ukraine shall have the right to lodge a cassation appeal with the Supreme Court of Ukraine against a ruling of the Higher Commercial Court of Ukraine which was adopted following the review of an enforceable ruling of a first-instance commercial court, or a ruling of either the Commercial Court of Appeal or the Higher Commercial Court of Ukraine, upon the return of a cassation appeal (request for review).”
Article 111-15. Grounds for appeal to the Supreme Court of Ukraine against a ruling [or decision] of the Higher Commercial Court of Ukraine
“The Supreme Court of Ukraine shall review in cassation proceedings the rulings [or decisions] of the Higher Commercial Court of Ukraine if they are appealed against:
(1) where the Higher Commercial Court of Ukraine has applied a law or normative legal instrument which contravenes the Constitution of Ukraine;
(2) where a decision contravenes decisions of the Supreme Court of Ukraine or a higher specialised court on an issue relating to the application of rules of substantive law;
(3) where it is revealed that the Higher Commercial Court of Ukraine has applied the same legal provision or any other normative legal instrument differently in similar cases;
... ”
Article 111-16. Procedure for lodging a cassation appeal and submissions against a ruling or decision of the Higher Commercial Court of Ukraine
“... A cassation appeal ... shall be lodged with the Supreme Court of Ukraine via the Higher Commercial Court of Ukraine. The Higher Commercial Court of Ukraine shall forward the cassation appeal (and submissions), together with the case file, to the Supreme Court of Ukraine within ten days of receipt. ...”
33. In a case regarding a constitutional application by forty-six members of Parliament concerning the official interpretation of the terms “the highest judicial body”, “a higher judicial body” and “the cassation appeal”, contained in Articles 125 and 129 of the Constitution of Ukraine, the Constitutional Court decided as follows:
“...
1. As regards the constitutional application:
- the reference to ‘the possibility of a ... cassation appeal against a court decision’ in ... Article 129 of the Constitution of Ukraine ... means a single cassation appeal and review of a judicial decision; the law may set out other forms of appeal and review of decisions given by the courts of general jurisdiction;
- the reference in ... Article 125 of the Constitution of Ukraine to the ‘higher courts’ as ‘the highest judicial bodies of the specialised courts’ means that the higher courts operate as cassation courts in respect of decisions of the specialised courts, on the basis of and within the limits established by the laws on the administration of justice;
- the reference in ... Article 125 of the Constitution of Ukraine to the Supreme Court of Ukraine as ‘the highest judicial body in the system of courts of general jurisdiction’ means that the constitutional status of the Supreme Court of Ukraine is such that the legislature does not intend for it to act as a cassation court with regard to decisions of the higher specialised courts, which do operate as cassation courts. 2. A ruling of the Constitutional Court of Ukraine is final, binding throughout the territory of Ukraine, and not subject to appeal. ...”
34. Among other things, this Act introduced amendments to ChapterXII-2 of the Code of Commercial Procedure, the relevant parts of which read:
Chapter XII: Final Provisions
“1. This Act shall enter into force immediately ...
3. The following amendments shall be made ...
3.3. to the Code of Commercial Procedure of Ukraine:
...
(a) Chapter XII-2: Review of judicial decisions by the Supreme Court of Ukraine
(i) Article 111-14: Review of judicial decisions by the Supreme Court of Ukraine
‘The Supreme Court of Ukraine shall only review rulings of the commercial courts on the grounds and in accordance with the procedure set out in this Code.’
(ii) Article 111-15. The right to apply for review of a judicial decision of a commercial court
‘The parties to a case and the Prosecutor General of Ukraine shall have the right to lodge an application for review of a judicial decision of a commercial court after its review in cassation proceedings. ... ‘
(iii) Article 111-16. Grounds for lodging an application for review of a judicial decision of a commercial court
‘An application for review of a judicial decision of a commercial court may only be lodged on the following grounds:
(1) inconsistent application by a court of cassation of the same provisions of substantive law, resulting in the adoption of conflicting judicial decisions in respect of similar factual situations regulated by law;
(2) where there has been a finding by an international judicial body whose jurisdiction is recognised by Ukraine that Ukraine has breached international obligations in relation to the determination of a case.’”
35. The above-mentioned instructions, approved by Order no. 75 issued by the President of the Higher Commercial Court of Ukraine on 10 December 2002, were amended on 25 October 2004, 21 April 2011 and 23 May 2011, and were subsequently repealed on 27 February 2013. Paragraphs 3.32 and 3.33 of the instructions, as worded in 2010, read:
“3.32. Cassation appeals addressed to the Supreme Court of Ukraine and cases which arrive at the Higher Commercial Court of Ukraine shall be registered by the document processing service. ...
3.33. A covering letter concerning the forwarding of a cassation appeal with its case file to the Supreme Court of Ukraine shall be signed by an authorised official of the Higher Commercial Court of Ukraine and transferred to the document processing service, together with any accompanying material and the case file. ...”
THE LAW
36. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 37. The applicants complained that they had been arbitrarily deprived of access to the Supreme Court. The first applicant further complained that its right to a fair trial within a reasonable time had been violated. They referred to Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
38. The applicants submitted that their repeated cassation appeals addressed to the Supreme Court had been returned by the HCC without examination, in breach of domestic law. The first applicant further submitted, in response to the Government’s observations, that:
- it had complied with the procedural requirements applicable at the material time for lodging the repeated cassation appeal, and at that time it had reasonably believed that its appeal would be examined by the Supreme Court;
- the HCC had not forwarded its repeated appeal within the time-limits laid down in procedural law;
- it had not questioned the binding nature of the decision of the Constitutional Court; however, the failure of the HCC to forward to the Supreme Court its repeated appeal, which had been lodged within the time-limit applicable at the material time, had violated the principle of legal certainty. 39. The Government submitted that in accordance with the procedural legislation in force before 11 March 2010, the commercial court system had been composed of four levels of jurisdiction with the Supreme Court at the top, while civil, criminal and administrative cases had been examined by a three-tier system of courts. They further asserted that the Constitutional Court’s decision had in fact attempted to unify the judicial system of Ukraine, establishing a three-tier system of courts across all the jurisdictions. 40. The Government further submitted that there had been no grounds to believe that the HCC had incorrectly interpreted the Constitutional Court’s decision excluding the Supreme Court from the system of judicial control in commercial cases. In any event, in the Government’s opinion, it was for the domestic courts to resolve problems of interpretation of domestic legislation. 41. The Government accepted that following the Constitutional Court’s decision, the provisions of the Code of Commercial Procedure had remained formally unchanged for some time; however, their continued application by the domestic courts would have been contrary to the Constitution of Ukraine. 42. Lastly, they stressed that the applicants’ disputes had been examined by the courts at three levels of jurisdiction, which had delivered concurring decisions, and the issue of the fairness of those decisions was not the subject of the Court’s examination in the present case. (a) Application no. 65719/10
(i) Admissibility
43. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (ii) Merits
44. General principles on access to a court have been summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-82, 5 April 2018). In particular,the Court reiterates that the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, which regulation may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Zubac, cited above, § 78). 45. The Court observes that it has previously held that a repeated cassation appeal in Ukrainian commercial procedure could be considered an effective remedy, within the meaning of Article 35 § 1 of the Convention, for lower court decisions taken after 29 June 2001, and therefore had to be used for exhaustion purposes (see MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005‐XI). This was the situation in the first applicant’s case when the HCC’s decision was adopted on 3 December 2009. 46. The Court further observes that the first applicant lodged the repeated cassation appeal on 29 December 2009, but it was not forwarded to the Supreme Court within the statutory time-limit, and was returned to the applicant on 31 May 2010 with reference to the Constitutional Court’s decision of 11 March 2010. 47. In these circumstances, there is no doubt that the return without examination of the first applicant’s cassation appeal of 29 December 2009 constituted a limitation on the right of access to a court under Article 6 § 1. 48. In the particular circumstances of the present case, there being no allegation that the changes to the system of cassation appeals that resulted from the Constitutional Court’s judgment of 11 March 2010 did not have a legitimate aim or was otherwise problematic, in the Court’s view the main issue to be examined is whether the HCC’s refusal to forward the first applicant’s repeated cassation appeal to the Supreme Court was foreseeable and thus compatible with the requirements of Article 6 § 1 of the Convention. 49. The Court does not question the generally recognised principle of the immediate effect of procedural changes to pending proceedings (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 35, Reports of Judgments and Decisions 1997‐VIII). This principle was also confirmed in Vorobyeva v. Ukraine ((dec.), no. 27517/02, 17 December 2002), where the applicant failed to make use of a remedy which was introduced while the judicial proceedings were still pending. 50. In Melnyk v. Ukraine (no. 23436/03, 28 March 2006) the Court examined a situation where the applicant’s cassation appeal had been rejected as time-barred as a result of legislative amendments which had entered into force while the appeal was due to be lodged, reducing the time-limit for lodging a cassation appeal from three months to one month, without any transitional or retroactive specification in the amended provisions. It found that the rejection of the applicant’s cassation appeal had not been foreseeable and proportionate to the purpose of the procedural changes in question despite their clearly legitimate aim (ibid., §§ 29 and 31). 51. The Court reiterates that the accessibility, clarity and foreseeability of legal provisions and case-law, notably as regards rules on form, time‐limits and limitation periods, ensure the effectiveness of the right of access to a court. While case‐law development is not, in itself, contrary to the proper administration of justice, in previous cases where changes in domestic case-law had affected pending civil proceedings, the Court has found no violation where it was satisfied that the way in which the law had developed had been well known to the parties, or at least reasonably foreseeable, and that no uncertainty had existed as to their legal situation (see the general principles and references to case-law in Petko Petkov v. Bulgaria, no. 2834/06, § 32, 19 February 2013). 52. In the instant case the Court observes that the first applicant’s repeated cassation appeal was returned five months after it was lodged. No action was taken during that time, although procedural law set a ten-day time-limit, running from the lodging of the cassation appeal, for the HCC to forward the party’s submissions, together with the case file, to the Supreme Court of Ukraine (see Article 111-16 of the Code of Commercial Procedure, quoted in paragraph 32 above). 53. In this connection, without speculating about the possible outcome of the examination of the first applicant’s repeated cassation appeal had it been forwarded to the Supreme Court within the time-limit laid down in procedural law, the Court accepts the applicant’s argument that it was reasonable to believe that its appeal would have had prospects of being examined. 54. In the light of the foregoing, the Court considers that as a result of the unjustified delay in dealing with the first applicant’s repeated cassation appeal lodged prior to the decision of the Constitutional Court, the restriction of the applicant’s right to access to a court was not foreseeable. 55. There has accordingly been a violation of Article 6 § 1 of the Convention in respect of the first applicant. (b) Applications nos. 42520/10 and 54581/10
Admissibility
56. The Government raised objections as to the locus standi of the late second applicant’s cousin, Ms Neonila Ivanivna Gryshchenko, in view of her not having been a party to the proceedings before the Supreme Court which are the subject of its examination in the present case, and the fact that the right of access to a court relied on by the late second applicant was not transferable. 57. The Court does not find it necessary to rule on the Government’s objection, since the second and third applicants’ applications are in any event inadmissible, for the reasons indicated below. 58. Unlike in the first applicant’s case, where the repeated cassation appeal was lodged and, according to law, had to be forwarded to the Supreme Court before the Constitutional Court adopted its decision on 11 March 2010, the second and third applicants lodged their repeated appeals after the above-mentioned decision. Even though the procedural legislation remained unchanged at that time (see paragraph 32 above), the Constitutional Court’s decision, as read by the HCC, precluded the Supreme Court from acting as a court of cassation for appeals against decisions of the specialised courts. As evidenced by the similar letters sent to all three applicants, the HCC developed a uniform practice in returning the repeated appeals and there is no reason to believe that the consequences of the Constitutional Court’s decision, if need be with the help of legal advice, would have been unforeseeable to litigants. 59. The Court considers, being mindful of its subsidiary role, that the legal situation of the second and third applicants was different from that of the first applicant and that the second and third applicants cannot claim to have had had an expectation that their repeated cassation appeals, lodged on 22 March and 8 April 2010 respectively, that is, after the delivery of the Constitutional Court’s decision of 11 March 2010, would have been accepted. 60. It follows that the second and third applicants’ complaints regarding an alleged breach of their right of access to the Supreme Court are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 61. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 62. The Government submitted that the length of the proceedings in the above-mentioned case had not been excessive in the circumstances. They further submitted that the first applicant had contributed to delays in the examination of the case. 63. The first applicant submitted that the case in issue had not been complex and emphasised its interest in the swift resolution of a property dispute which was of particular importance for it. The first applicant also stated that the domestic courts had not acted with the requisite diligence. 64. The Court notes that the proceedings in issue lasted from 9 December 2002, when the first applicant instituted them before the Zakarpattya Regional Commercial Court, till 31 May 2010, when the HCC returned the applicant’s repeated cassation appeal against the HCC’s decision of 3 December 2009. The Court observes in this connection that after the Supreme Court, acting as a second-instance court of cassation, refused, on 3 April 2008, to examine the repeated cassation appeal lodged by the defendant (see paragraph 11 above), the case was heard at four levels of jurisdiction with the total length of the proceedings constituting some seven years and five months. 65. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 66. The Court notes, in the light of the parties’ submissions, that the subject matter of the dispute was not of an urgent nature. It further observes that the main delays in the proceedings, amounting to a total period of about two years and nine months (see paragraph 8 above), occurred while the case was pending before the first-instance court. The first applicant did not contest the information provided by the Government that the above-mentioned delays had occurred as a result of the first applicant’s own actions and could not be attributed to the State. Lastly, the remaining period under examination, which amounts to about four years and eight months, does not disclose any unreasonable delays. 67. Having regard to all the circumstances of the case, the Court finds that the length of the proceedings did not exceed what may be considered “reasonable”. 68. There has therefore been no violation of Article 6 § 1 of the Convention on account of unreasonable length of the proceedings. 69. The first applicant also complained that the return of its repeated cassation appeal by the HCC had amounted to a violation of Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
70. Having regard to its conclusion in respect of the complaint under Article 6 § 1 (see paragraph 55 above), the Court considers that it is not necessary to examine the case under Article 13 since the requirements of that Article are less strict than, and in this instance are absorbed by, those of Article 6 § 1 (see C.G. v. the United Kingdom, no. 43373/98, § 53, 19 December 2001). 71. 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.”
72. The first applicant (application no. 65719/10) claimed 1,024,787 euros (EUR) in respect of pecuniary damage resulting from its loss of property under the purchase agreement. 73. The Government considered those claims unsubstantiated. 74. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 75. The first applicant did not submit any claims in respect of non‐pecuniary damage. Accordingly, the Court considers that there is no call to award it any sum on that account. 76. The first applicant also claimed EUR 38,614 for the costs and expenses incurred before the domestic courts and EUR 3,750 for those incurred before the Court, to be paid directly into the bank account of the applicant’s representative, Mr M. Tarakhkalo. 77. The Government submitted that the claim was excessive and unsubstantiated. 78. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, to the legal aid granted to the applicant (see paragraph 2 above) and the fact that its representative intervened in the proceedings at the communication stage only, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,500 to cover costs and expenses in the proceedings before the Court, to be paid directly into the bank account of the first applicant’s representative, Mr M. Tarakhkalo (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 219, ECHR 2013). 79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant in application no. 65719/10, in respect of costs and expenses incurred in the proceedings before the Court, to be paid into the bank account of that applicant’s representative, Mr M. Tarakhkalo;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Victor Soloveytchik Síofra O’Leary Registrar President

APPENDIX
List of applications
No. Application no. Case name
Lodged on
ApplicantYear of BirthPlace of Residence
Represented by
1. 65719/10
Zakarpattya
Regional Union of Consumer Cooperatives and Others v. Ukraine

27/10/2010
ZAKARPATTYA REGIONAL UNION OF CONSUMER COOPERATIVES AND OTHERS Uzhhorod
Mr M. TARAKHKALO
Ms V. LEBID
Ms N. HUSEINZADE
2. 42520/10
Ageyeva v. Ukraine
23/06/2010
Neonila Grygoriivna AGEYEVA1939Kyiv

3. 54581/10
Khlabystova v. Ukraine
11/09/2010
Svitlana Valentynivna KHLABYSTOVA1960Irpin
Ms K. KHLABYSTOVA

FIFTH SECTION
CASE OF ZAKARPATTYA REGIONAL UNION OF CONSUMER COOPERATIVES AND OTHERS v. UKRAINE
(Applications nos. 65719/10 and 2 others)

JUDGMENT

Art 6 § 1 (civil) • Return without examination of first applicant’s repeated cassation appeal based on a Constitutional Court’s decision interpreting the competence of the Supreme Court in the resolution of commercial disputes • Unforeseeable restriction of right to access to a court resulting from unjustified delay in dealing with the appeal lodged prior to Constitutional Court’s decision • Overall length of commercial proceedings not exceeding what may be considered reasonable

STRASBOURG
15 September 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Zakarpattya Regional Union of Consumer Cooperatives and Others v. Ukraine,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Síofra O’Leary, President, Mārtiņš Mits, Ganna Yudkivska, Stéphanie Mourou-Vikström, Lətif Hüseynov, Lado Chanturia, Ivana Jelić, judges, and Victor Soloveytchik, Section Registrar,
Having regard to:
the applications (nos. 65719/10, 42520/10 and 54581/10) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an association registered in Ukraine, Zakarpattya Regional Union of Consumer Cooperatives and Others v. Ukraine (Zakarpatska Oblasna Spilka Spozhyvchykh Tovarystv) (“the first applicant”), and two Ukrainian nationals, Ms Neonila Grygoriivna Ageyeva (“the second applicant”) and Ms Svitlana Valentynivna Khlabystova (“the third applicant”), on the various dates indicated in the appended table;
the decision to give notice to the Ukrainian Government (“the Government”) of the complaints under Article 6 § 1 of the Convention concerning the alleged lack of access to court (as regards all the applications) and unreasonable length of the proceedings (as regards the first applicant) and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated in private on 3 May 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case principally concerns the alleged restriction of the applicants’ access to a court under Article 6 § 1 of the Convention following a decision of the Constitutional Court interpreting the competence of the Supreme Court in the resolution of commercial disputes. THE FACTS
2. The first applicant is an association of consumer cooperatives which has its registered offices in Uzhhorod. It unites the consumer cooperatives of the Uzhhorod Region. Having been granted legal aid, the first applicant was represented before the Court by Mr M. Tarakhkalo, Ms V. Lebid and Ms N. Huseinzade, lawyers practising in Kyiv. 3. The second applicant was born in 1939 and lived in Luhansk. She died on 5 December 2015. The applicant’s cousin, Ms Neonila Ivanivna Gryshchenko, wished to pursue the proceedings before the Court in her stead. 4. The third applicant was born in 1960 and lives in Yalta. She was represented before the Court by Ms K.V. Khlabystova, a lawyer practising in Yalta. 5. The Government were represented by their Agent, Mr I. Lishchyna. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 9 December 2002 the first applicant instituted proceedings in the Zakarpattya Regional Commercial Court seeking the invalidation of a purchase agreement. 8. In the course of the examination of the case by the first-instance court, the proceedings were adjourned a number of times. The adjournments, which lasted for a total period of about two years and nine months, were due to the failure of the first applicant’s representative to appear before the court, requests by the first applicant to adjourn the proceedings pending the examination by the law-enforcement authorities of various complaints related to the subject matter of the dispute, and the need for the parties to the proceedings to take time to familiarise themselves with the applicant’s repeated extension of the scope of its allegations. 9. On 6 July 2007 the Zakarpattya Regional Commercial Court found against the first applicant. That decision was upheld on appeal on 20 September 2007. 10. On 24 January 2008, examining an ensuing cassation appeal, the Higher Commercial Court (“the HCC”) quashed the above-mentioned decisions and remitted the case to the Zakarpattya Regional Commercial Court for a fresh examination. 11. On 3 April 2008 the Supreme Court, acting as a second-instance court of cassation, refused a repeated cassation appeal lodged by the defendant against the HCC’s decision of 24 January 2008. 12. On 10 February 2009 the Zakarpattya Regional Commercial Court found against the first applicant. That decision was upheld by the Court of Appeal and the HCC on 29 July and 3 December 2009 respectively. 13. On 29 December 2009 the first applicant lodged a repeated cassation appeal with the HCC against its ruling of 3 December 2009. The appeal was addressed to the Supreme Court of Ukraine as the second-instance court of cassation. 14. On 31 May 2010 the HCC returned the first applicant’s repeated cassation appeal with a covering letter signed by an officer of the court registry. The relevant parts of the letter read:
“In its ruling of 11 March 2010 the Constitutional Court of Ukraine ... held that the constitutional status of the Supreme Court of Ukraine was such that it ... was not authorised to act as a court of cassation in respect of decisions of the higher specialised courts. ... Accordingly, the rulings (or decisions) of a higher specialised court may not be subject to a cassation appeal before the Supreme Court of Ukraine. In view of the above, the cassation appeal of [the applicant] ... and the enclosed documents are being returned to the [applicant].”
15. On 18 December 2008 the Luhansk Regional Commercial Court ordered the liquidation of the L.A.P. company in the course of bankruptcy proceedings. 16. On 31 March 2009 the second applicant, one of L.A.P.’s creditors, lodged an appeal against that decision. 17. On 2 April 2009 the Luhansk Commercial Court of Appeal rejected the appeal as lodged out of time. 18. On 22 September 2009 the Luhansk Commercial Court of Appeal reviewed the decision of 18 December 2008 on appeals lodged by other creditors of L.A.P. and upheld it. 19. In the meantime, on 13 April 2009, the second applicant had lodged a cassation appeal with the HCC against the decision of 18 December 2008. Having initially accepted the appeal for consideration, on 3 March 2010 the HCC discontinued the proceedings on the grounds that the second applicant had not challenged the ruling of 22 September 2009 in which the Luhansk Commercial Court of Appeal had upheld the decision of 18 December 2008. The HCC noted that the second applicant could appeal against the ruling of 22 September 2009 if she so wished. 20. On 22 March 2010 the second applicant lodged a repeated cassation appeal against the HCC’s ruling of 3 March 2010. Relying on Article 111-16 of the Code of Commercial Procedure of Ukraine, the second applicant lodged the cassation appeal and accompanying documents with the HCC, intending for them to be transferred to the Supreme Court for consideration. 21. On 5 May 2010 the second applicant’s submissions were returned to her with a covering letter signed by an officer of the HCC’s Registry. The relevant parts of the letter read:
“In its ruling of 11 March 2010, the Constitutional Court of Ukraine ... held that the constitutional status of the Supreme Court of Ukraine was such that ... it was not authorised to act as a court of cassation in respect of decisions of the higher specialised courts. ... Accordingly, the rulings (or decisions) of a higher specialised court may not be subject to a cassation appeal to the Supreme Court of Ukraine. In view of the above, the cassation appeal of [the applicant] ... and the enclosed documents are being returned to the [applicant].”
22. In August 2009 the third applicant, acting as a private entrepreneur, instituted proceedings in the Commercial Court of the Autonomous Republic of Crimea, seeking an order for the Gurzuf Village Council to renew a commercial lease agreement with her. 23. After the first-instance and appellate courts had rejected her claims, the third applicant lodged a cassation appeal with the HCC. 24. On 23 March 2010 the HCC rejected the third applicant’s cassation appeal. 25. On 8 April 2010 the third applicant lodged a further cassation appeal with the HCC against its ruling of 23 March 2010. The cassation appeal was addressed to the Supreme Court, and the third applicant intended for it to be forwarded to the Supreme Court, together with the case file. 26. On 11 June 2010 the HCC returned the third applicant’s cassation appeal with a covering letter signed by an officer of the HCC Registry. The relevant parts of the letter read:
“In its ruling of 11 March 2010 the Constitutional Court of Ukraine ... held that the constitutional status of the Supreme Court of Ukraine was such that it ... was not authorised to act as a court of cassation in respect of decisions of the higher specialised courts. ... Accordingly, the rulings (or decisions) of a higher specialised court may not be subject to a cassation appeal to the Supreme Court of Ukraine. In view of the above, the cassation appeal of [the applicant] ... and the enclosed documents are being returned to the [applicant].”
27. On 9 July 2010 the third applicant sent her cassation appeal directly to the Supreme Court, requesting that it be accepted for consideration. She submitted, in particular, that the HCC had arbitrarily refused to fulfil its obligation, as set out in Article 111-16 of the Code of Commercial Procedure, to forward her cassation appeal, together with the case file, to the Supreme Court for review. 28. On 16 July 2010 the Deputy President of the Commercial Disputes Chamber of the Supreme Court returned the third applicant’s submissions to her with a covering letter, the relevant parts of which stated:
“... In accordance with the current provisions of the Code of Commercial Procedure of Ukraine, the Supreme Court of Ukraine is not empowered to decide whether to grant [you] leave to lodge a cassation appeal ... in the absence of a case file. At the same time, procedural law does not empower the Supreme Court of Ukraine to request a case file on its own initiative in order to review the rulings of a [lower] court.”
29. On 27 July 2010 the third applicant sent a letter to the President of the HCC, complaining that her cassation appeal had mistakenly been returned to her, and demanding that it be forwarded to the Supreme Court together with the case file. She enclosed the Supreme Court’s letter of 16 July 2010 and emphasised that there was nothing in the letter indicating that the ruling of the Constitutional Court had invalidated the provisions of Chapter XII-2 of the Code of Commercial Procedure. Accordingly, those provisions had been in force at the time when she had first lodged her cassation appeal, and had to be complied with in her case. The third applicant also argued that, having consulted the Supreme Court’s website, she had discovered that the Commercial Disputes Chamber had continued to operate in June 2010 and had a schedule of hearings posted on its web page. 30. On 11 August 2010 an officer of the HCC’s Registry replied to the third applicant, saying that there had been no mistake in not forwarding her cassation appeal to the Supreme Court, as the Constitutional Court had clearly established in its ruling of 11 March 2010 that the Supreme Court was not authorised to act as a court of cassation in respect of rulings given by the HCC. RELEVANT LEGAL FRAMEWORK AND PRACTICE
31. The relevant provisions of the Constitution of Ukraine read:
Article 6
“State power in Ukraine shall be exercised on the basis of its division into legislative, executive and judicial power. Bodies of legislative, executive and judicial power shall exercise their authority within the limits established by this Constitution, and in accordance with the laws of Ukraine.”
Article 8
“In Ukraine, the principle of the rule of law is recognised and effective. ...”
Article 125
“In Ukraine, the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation. The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction. The respective higher courts are the highest judicial bodies of the specialised courts. ...”
Article 129
“... The main principles of the administration of justice are:
...
(8) guaranteeing the possibility of an appeal or cassation appeal against a court decision, except in cases provided for by law; ...”
Article 147
“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine. The Constitutional Court of Ukraine shall decide issues relating to the conformity of laws and other legal instruments with the Constitution of Ukraine, and provide the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”
Article 150
“The Constitutional Court of Ukraine shall have the power to:
(1) decide issues relating to the conformity with the Constitution of Ukraine (constitutionality) of:
- laws and other legal instruments of the Verkhovna Rada of Ukraine; ...
(2) give the official interpretation of the Constitution of Ukraine and the laws of Ukraine;
With regard to the issues set out in this Article, the Constitutional Court of Ukraine shall adopt final rulings which are binding throughout the territory of Ukraine, and are not subject to appeal.”
Article 152
“... Laws and other legal instruments, or separate provisions thereof, which are deemed to be unconstitutional shall lose legal force from the day the Constitutional Court of Ukraine adopts a decision on their unconstitutionality.”
32. The relevant provisions of the Code, as worded between 15 May 2003 and 7 July 2010, read:
Chapter XII-2. Review of judicial decisions of the Higher Commercial Court of Ukraine by the Supreme Court of Ukraine
Article 111-14. The right to lodge a cassation appeal against the judicial decisions of the Higher Commercial Court of Ukraine
“The parties to a case and the Prosecutor General of Ukraine shall have the right to lodge a cassation appeal with the Supreme Court of Ukraine against a ruling of the Higher Commercial Court of Ukraine which was adopted following the review of an enforceable ruling of a first-instance commercial court, or a ruling of either the Commercial Court of Appeal or the Higher Commercial Court of Ukraine, upon the return of a cassation appeal (request for review).”
Article 111-15. Grounds for appeal to the Supreme Court of Ukraine against a ruling [or decision] of the Higher Commercial Court of Ukraine
“The Supreme Court of Ukraine shall review in cassation proceedings the rulings [or decisions] of the Higher Commercial Court of Ukraine if they are appealed against:
(1) where the Higher Commercial Court of Ukraine has applied a law or normative legal instrument which contravenes the Constitution of Ukraine;
(2) where a decision contravenes decisions of the Supreme Court of Ukraine or a higher specialised court on an issue relating to the application of rules of substantive law;
(3) where it is revealed that the Higher Commercial Court of Ukraine has applied the same legal provision or any other normative legal instrument differently in similar cases;
... ”
Article 111-16. Procedure for lodging a cassation appeal and submissions against a ruling or decision of the Higher Commercial Court of Ukraine
“... A cassation appeal ... shall be lodged with the Supreme Court of Ukraine via the Higher Commercial Court of Ukraine. The Higher Commercial Court of Ukraine shall forward the cassation appeal (and submissions), together with the case file, to the Supreme Court of Ukraine within ten days of receipt. ...”
33. In a case regarding a constitutional application by forty-six members of Parliament concerning the official interpretation of the terms “the highest judicial body”, “a higher judicial body” and “the cassation appeal”, contained in Articles 125 and 129 of the Constitution of Ukraine, the Constitutional Court decided as follows:
“...
1. As regards the constitutional application:
- the reference to ‘the possibility of a ... cassation appeal against a court decision’ in ... Article 129 of the Constitution of Ukraine ... means a single cassation appeal and review of a judicial decision; the law may set out other forms of appeal and review of decisions given by the courts of general jurisdiction;
- the reference in ... Article 125 of the Constitution of Ukraine to the ‘higher courts’ as ‘the highest judicial bodies of the specialised courts’ means that the higher courts operate as cassation courts in respect of decisions of the specialised courts, on the basis of and within the limits established by the laws on the administration of justice;
- the reference in ... Article 125 of the Constitution of Ukraine to the Supreme Court of Ukraine as ‘the highest judicial body in the system of courts of general jurisdiction’ means that the constitutional status of the Supreme Court of Ukraine is such that the legislature does not intend for it to act as a cassation court with regard to decisions of the higher specialised courts, which do operate as cassation courts. 2. A ruling of the Constitutional Court of Ukraine is final, binding throughout the territory of Ukraine, and not subject to appeal. ...”
34. Among other things, this Act introduced amendments to ChapterXII-2 of the Code of Commercial Procedure, the relevant parts of which read:
Chapter XII: Final Provisions
“1. This Act shall enter into force immediately ...
3. The following amendments shall be made ...
3.3. to the Code of Commercial Procedure of Ukraine:
...
(a) Chapter XII-2: Review of judicial decisions by the Supreme Court of Ukraine
(i) Article 111-14: Review of judicial decisions by the Supreme Court of Ukraine
‘The Supreme Court of Ukraine shall only review rulings of the commercial courts on the grounds and in accordance with the procedure set out in this Code.’
(ii) Article 111-15. The right to apply for review of a judicial decision of a commercial court
‘The parties to a case and the Prosecutor General of Ukraine shall have the right to lodge an application for review of a judicial decision of a commercial court after its review in cassation proceedings. ... ‘
(iii) Article 111-16. Grounds for lodging an application for review of a judicial decision of a commercial court
‘An application for review of a judicial decision of a commercial court may only be lodged on the following grounds:
(1) inconsistent application by a court of cassation of the same provisions of substantive law, resulting in the adoption of conflicting judicial decisions in respect of similar factual situations regulated by law;
(2) where there has been a finding by an international judicial body whose jurisdiction is recognised by Ukraine that Ukraine has breached international obligations in relation to the determination of a case.’”
35. The above-mentioned instructions, approved by Order no. 75 issued by the President of the Higher Commercial Court of Ukraine on 10 December 2002, were amended on 25 October 2004, 21 April 2011 and 23 May 2011, and were subsequently repealed on 27 February 2013. Paragraphs 3.32 and 3.33 of the instructions, as worded in 2010, read:
“3.32. Cassation appeals addressed to the Supreme Court of Ukraine and cases which arrive at the Higher Commercial Court of Ukraine shall be registered by the document processing service. ...
3.33. A covering letter concerning the forwarding of a cassation appeal with its case file to the Supreme Court of Ukraine shall be signed by an authorised official of the Higher Commercial Court of Ukraine and transferred to the document processing service, together with any accompanying material and the case file. ...”
THE LAW
36. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. 37. The applicants complained that they had been arbitrarily deprived of access to the Supreme Court. The first applicant further complained that its right to a fair trial within a reasonable time had been violated. They referred to Article 6 § 1 of the Convention, which provides, in so far as relevant:
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...”
38. The applicants submitted that their repeated cassation appeals addressed to the Supreme Court had been returned by the HCC without examination, in breach of domestic law. The first applicant further submitted, in response to the Government’s observations, that:
- it had complied with the procedural requirements applicable at the material time for lodging the repeated cassation appeal, and at that time it had reasonably believed that its appeal would be examined by the Supreme Court;
- the HCC had not forwarded its repeated appeal within the time-limits laid down in procedural law;
- it had not questioned the binding nature of the decision of the Constitutional Court; however, the failure of the HCC to forward to the Supreme Court its repeated appeal, which had been lodged within the time-limit applicable at the material time, had violated the principle of legal certainty. 39. The Government submitted that in accordance with the procedural legislation in force before 11 March 2010, the commercial court system had been composed of four levels of jurisdiction with the Supreme Court at the top, while civil, criminal and administrative cases had been examined by a three-tier system of courts. They further asserted that the Constitutional Court’s decision had in fact attempted to unify the judicial system of Ukraine, establishing a three-tier system of courts across all the jurisdictions. 40. The Government further submitted that there had been no grounds to believe that the HCC had incorrectly interpreted the Constitutional Court’s decision excluding the Supreme Court from the system of judicial control in commercial cases. In any event, in the Government’s opinion, it was for the domestic courts to resolve problems of interpretation of domestic legislation. 41. The Government accepted that following the Constitutional Court’s decision, the provisions of the Code of Commercial Procedure had remained formally unchanged for some time; however, their continued application by the domestic courts would have been contrary to the Constitution of Ukraine. 42. Lastly, they stressed that the applicants’ disputes had been examined by the courts at three levels of jurisdiction, which had delivered concurring decisions, and the issue of the fairness of those decisions was not the subject of the Court’s examination in the present case. (a) Application no. 65719/10
(i) Admissibility
43. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (ii) Merits
44. General principles on access to a court have been summarised in Zubac v. Croatia ([GC], no. 40160/12, §§ 76-82, 5 April 2018). In particular,the Court reiterates that the right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State, which regulation may vary in time and in place according to the needs and resources of the community and of individuals. In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Zubac, cited above, § 78). 45. The Court observes that it has previously held that a repeated cassation appeal in Ukrainian commercial procedure could be considered an effective remedy, within the meaning of Article 35 § 1 of the Convention, for lower court decisions taken after 29 June 2001, and therefore had to be used for exhaustion purposes (see MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005‐XI). This was the situation in the first applicant’s case when the HCC’s decision was adopted on 3 December 2009. 46. The Court further observes that the first applicant lodged the repeated cassation appeal on 29 December 2009, but it was not forwarded to the Supreme Court within the statutory time-limit, and was returned to the applicant on 31 May 2010 with reference to the Constitutional Court’s decision of 11 March 2010. 47. In these circumstances, there is no doubt that the return without examination of the first applicant’s cassation appeal of 29 December 2009 constituted a limitation on the right of access to a court under Article 6 § 1. 48. In the particular circumstances of the present case, there being no allegation that the changes to the system of cassation appeals that resulted from the Constitutional Court’s judgment of 11 March 2010 did not have a legitimate aim or was otherwise problematic, in the Court’s view the main issue to be examined is whether the HCC’s refusal to forward the first applicant’s repeated cassation appeal to the Supreme Court was foreseeable and thus compatible with the requirements of Article 6 § 1 of the Convention. 49. The Court does not question the generally recognised principle of the immediate effect of procedural changes to pending proceedings (see Brualla Gómez de la Torre v. Spain, 19 December 1997, § 35, Reports of Judgments and Decisions 1997‐VIII). This principle was also confirmed in Vorobyeva v. Ukraine ((dec.), no. 27517/02, 17 December 2002), where the applicant failed to make use of a remedy which was introduced while the judicial proceedings were still pending. 50. In Melnyk v. Ukraine (no. 23436/03, 28 March 2006) the Court examined a situation where the applicant’s cassation appeal had been rejected as time-barred as a result of legislative amendments which had entered into force while the appeal was due to be lodged, reducing the time-limit for lodging a cassation appeal from three months to one month, without any transitional or retroactive specification in the amended provisions. It found that the rejection of the applicant’s cassation appeal had not been foreseeable and proportionate to the purpose of the procedural changes in question despite their clearly legitimate aim (ibid., §§ 29 and 31). 51. The Court reiterates that the accessibility, clarity and foreseeability of legal provisions and case-law, notably as regards rules on form, time‐limits and limitation periods, ensure the effectiveness of the right of access to a court. While case‐law development is not, in itself, contrary to the proper administration of justice, in previous cases where changes in domestic case-law had affected pending civil proceedings, the Court has found no violation where it was satisfied that the way in which the law had developed had been well known to the parties, or at least reasonably foreseeable, and that no uncertainty had existed as to their legal situation (see the general principles and references to case-law in Petko Petkov v. Bulgaria, no. 2834/06, § 32, 19 February 2013). 52. In the instant case the Court observes that the first applicant’s repeated cassation appeal was returned five months after it was lodged. No action was taken during that time, although procedural law set a ten-day time-limit, running from the lodging of the cassation appeal, for the HCC to forward the party’s submissions, together with the case file, to the Supreme Court of Ukraine (see Article 111-16 of the Code of Commercial Procedure, quoted in paragraph 32 above). 53. In this connection, without speculating about the possible outcome of the examination of the first applicant’s repeated cassation appeal had it been forwarded to the Supreme Court within the time-limit laid down in procedural law, the Court accepts the applicant’s argument that it was reasonable to believe that its appeal would have had prospects of being examined. 54. In the light of the foregoing, the Court considers that as a result of the unjustified delay in dealing with the first applicant’s repeated cassation appeal lodged prior to the decision of the Constitutional Court, the restriction of the applicant’s right to access to a court was not foreseeable. 55. There has accordingly been a violation of Article 6 § 1 of the Convention in respect of the first applicant. (b) Applications nos. 42520/10 and 54581/10
Admissibility
56. The Government raised objections as to the locus standi of the late second applicant’s cousin, Ms Neonila Ivanivna Gryshchenko, in view of her not having been a party to the proceedings before the Supreme Court which are the subject of its examination in the present case, and the fact that the right of access to a court relied on by the late second applicant was not transferable. 57. The Court does not find it necessary to rule on the Government’s objection, since the second and third applicants’ applications are in any event inadmissible, for the reasons indicated below. 58. Unlike in the first applicant’s case, where the repeated cassation appeal was lodged and, according to law, had to be forwarded to the Supreme Court before the Constitutional Court adopted its decision on 11 March 2010, the second and third applicants lodged their repeated appeals after the above-mentioned decision. Even though the procedural legislation remained unchanged at that time (see paragraph 32 above), the Constitutional Court’s decision, as read by the HCC, precluded the Supreme Court from acting as a court of cassation for appeals against decisions of the specialised courts. As evidenced by the similar letters sent to all three applicants, the HCC developed a uniform practice in returning the repeated appeals and there is no reason to believe that the consequences of the Constitutional Court’s decision, if need be with the help of legal advice, would have been unforeseeable to litigants. 59. The Court considers, being mindful of its subsidiary role, that the legal situation of the second and third applicants was different from that of the first applicant and that the second and third applicants cannot claim to have had had an expectation that their repeated cassation appeals, lodged on 22 March and 8 April 2010 respectively, that is, after the delivery of the Constitutional Court’s decision of 11 March 2010, would have been accepted. 60. It follows that the second and third applicants’ complaints regarding an alleged breach of their right of access to the Supreme Court are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. 61. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 62. The Government submitted that the length of the proceedings in the above-mentioned case had not been excessive in the circumstances. They further submitted that the first applicant had contributed to delays in the examination of the case. 63. The first applicant submitted that the case in issue had not been complex and emphasised its interest in the swift resolution of a property dispute which was of particular importance for it. The first applicant also stated that the domestic courts had not acted with the requisite diligence. 64. The Court notes that the proceedings in issue lasted from 9 December 2002, when the first applicant instituted them before the Zakarpattya Regional Commercial Court, till 31 May 2010, when the HCC returned the applicant’s repeated cassation appeal against the HCC’s decision of 3 December 2009. The Court observes in this connection that after the Supreme Court, acting as a second-instance court of cassation, refused, on 3 April 2008, to examine the repeated cassation appeal lodged by the defendant (see paragraph 11 above), the case was heard at four levels of jurisdiction with the total length of the proceedings constituting some seven years and five months. 65. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 66. The Court notes, in the light of the parties’ submissions, that the subject matter of the dispute was not of an urgent nature. It further observes that the main delays in the proceedings, amounting to a total period of about two years and nine months (see paragraph 8 above), occurred while the case was pending before the first-instance court. The first applicant did not contest the information provided by the Government that the above-mentioned delays had occurred as a result of the first applicant’s own actions and could not be attributed to the State. Lastly, the remaining period under examination, which amounts to about four years and eight months, does not disclose any unreasonable delays. 67. Having regard to all the circumstances of the case, the Court finds that the length of the proceedings did not exceed what may be considered “reasonable”. 68. There has therefore been no violation of Article 6 § 1 of the Convention on account of unreasonable length of the proceedings. 69. The first applicant also complained that the return of its repeated cassation appeal by the HCC had amounted to a violation of Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
70. Having regard to its conclusion in respect of the complaint under Article 6 § 1 (see paragraph 55 above), the Court considers that it is not necessary to examine the case under Article 13 since the requirements of that Article are less strict than, and in this instance are absorbed by, those of Article 6 § 1 (see C.G. v. the United Kingdom, no. 43373/98, § 53, 19 December 2001). 71. 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.”
72. The first applicant (application no. 65719/10) claimed 1,024,787 euros (EUR) in respect of pecuniary damage resulting from its loss of property under the purchase agreement. 73. The Government considered those claims unsubstantiated. 74. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. 75. The first applicant did not submit any claims in respect of non‐pecuniary damage. Accordingly, the Court considers that there is no call to award it any sum on that account. 76. The first applicant also claimed EUR 38,614 for the costs and expenses incurred before the domestic courts and EUR 3,750 for those incurred before the Court, to be paid directly into the bank account of the applicant’s representative, Mr M. Tarakhkalo. 77. The Government submitted that the claim was excessive and unsubstantiated. 78. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, to the legal aid granted to the applicant (see paragraph 2 above) and the fact that its representative intervened in the proceedings at the communication stage only, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 1,500 to cover costs and expenses in the proceedings before the Court, to be paid directly into the bank account of the first applicant’s representative, Mr M. Tarakhkalo (see, mutatis mutandis, Khlaifia and Others v. Italy [GC], no. 16483/12, § 288, 15 December 2016, and Oleksandr Volkov v. Ukraine, no. 21722/11, § 219, ECHR 2013). 79. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY,
(a) that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,500 (one thousand five hundred euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant in application no. 65719/10, in respect of costs and expenses incurred in the proceedings before the Court, to be paid into the bank account of that applicant’s representative, Mr M. Tarakhkalo;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Done in English, and notified in writing on 15 September 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Victor Soloveytchik Síofra O’Leary Registrar President

APPENDIX
List of applications
No. Application no. Case name
Lodged on
ApplicantYear of BirthPlace of Residence
Represented by
1. 65719/10
Zakarpattya
Regional Union of Consumer Cooperatives and Others v. Ukraine

27/10/2010
ZAKARPATTYA REGIONAL UNION OF CONSUMER COOPERATIVES AND OTHERS Uzhhorod
Mr M. TARAKHKALO
Ms V. LEBID
Ms N. HUSEINZADE
2. 42520/10
Ageyeva v. Ukraine
23/06/2010
Neonila Grygoriivna AGEYEVA1939Kyiv

3. 54581/10
Khlabystova v. Ukraine
11/09/2010
Svitlana Valentynivna KHLABYSTOVA1960Irpin
Ms K. KHLABYSTOVA

No. Application no. Case name
Lodged on
ApplicantYear of BirthPlace of Residence
Represented by
1. 65719/10
Zakarpattya
Regional Union of Consumer Cooperatives and Others v. Ukraine

27/10/2010
ZAKARPATTYA REGIONAL UNION OF CONSUMER COOPERATIVES AND OTHERS Uzhhorod
Mr M. TARAKHKALO
Ms V. LEBID
Ms N. HUSEINZADE
2. 42520/10
Ageyeva v. Ukraine
23/06/2010
Neonila Grygoriivna AGEYEVA1939Kyiv

3. 54581/10
Khlabystova v. Ukraine
11/09/2010
Svitlana Valentynivna KHLABYSTOVA1960Irpin
Ms K. KHLABYSTOVA