CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 23 janvier 2014

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margin-left:17pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s86439055 { margin-top:36pt; margin-bottom:12pt } .sF5C64699 { width:201.29pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .s48DB3670 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9138CF0B { margin-top:36pt; margin-bottom:36pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .sC36A6361 { font-family:Arial; color:#000000 }     FIFTH SECTION           CASE OF EAST/WEST ALLIANCE LIMITED v. UKRAINE   (Application no. 19336/04)                     JUDGMENT   This version was rectified on 3 February 2014 under Rule 81 of the Rules of Court.   STRASBOURG   23 January 2014     FINAL   02/06/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of East/West Alliance Limited v. Ukraine, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mark Villiger, President,   Angelika Nußberger,   Boštjan M. Zupančič,   Ganna Yudkivska,   André Potocki,   Paul Lemmens,   Aleš Pejchal, judges, and Stephen Phillips, Deputy Section Registrar, Having deliberated in private on 17 December 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 19336/04) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27   May 2004 by East/West Alliance Ltd., an Irish company based in Dublin with a representative office in Ukraine (“the applicant company”). 2.     The applicant company was represented by the “International law firm “Consulting” based in Kyiv and, starting from 8 October 2013, also by Mr Grégory Thuan dit Dieudonné, a lawyer based in Strasbourg. [1] The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr Nazar Kulchytskyy. 3.     The applicant company alleged breaches of Article   1 of Protocol No.   1, as well as Article 6 §   1 and Article 13 of the Convention, on account of the authorities’ numerous and multifaceted interferences with its property rights to fourteen aircraft, which allegedly resulted in its being deprived of those possessions. 4.     On 31 March 2010 the application was communicated to the Government. 5.     On 27 April 2012 the President of the Section decided, under Rule   54   § 2 (c) of the Rules of Court, that the parties should be invited to submit further written observations on the admissibility and merits of the application. 6.     The Irish Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 7.     At the time of the events the applicant company, along with ATI (an   air cargo traffic company), URARP (an aircraft repairs and maintenance company), and some other companies involved in the aviation business, belonged to the Titan Consortium. 8.     At various times between August 1997 and March 2002, when he was elected to the national parliament, the president of the Ukrainian office of the applicant company, ATI and the Titan Consortium was a certain Mr L. A.     Facts concerning the An-28 aircraft 1.     Purchase and business operations by the applicant company 9.     Pursuant to a sale contract of 30 July 1999, as modified on 28   December   1999, the applicant company purchased eight Antonov-28 (“An-28”) aircraft from the Russian airline company S. The aircraft had been manufactured in 1988-1990, and their flying records ranged from 1,455 to 2,821 hours. 10.     On 9 and 19 January 2000 the applicant company leased those aircraft to ATI for ten years. It was stipulated in the contract that the aircraft would remain the property of the applicant company during that entire period. The ownership could then be transferred to ATI, on condition that it had settled all the leasing payments. 11.     On 22 and 28   March 2000 the Ministry of Transport of Ukraine registered the aircraft. The applicant company was indicated as the owner in the registration certificates. 12.     In November 2000 one of the aircraft was relocated to Moldova for commercial purposes. 13.     On 7 March 2001 another aircraft was sold to company C. 14.     The six remaining aircraft were parked at the Uzyn airbase in the Kyiv region (Bila Tserkva). 15.     On 6 July 2001 the applicant company and ATI terminated the lease agreement because the lessee was unable to comply with its terms. 16.     On 20 August 2001 the applicant company concluded an agreement on a ten-year lease of the six aircraft to another company, R.S.T., which was to take effect on 1 October 2001. That agreement, however, never entered into force. 2.     Criminal proceedings against URARP and ATI officials 17.     Between 23 and 25 January 2001 the tax police conducted a search on the premises of the Titan Consortium in Kyiv, including the applicant company’s office, apparently in the context of criminal investigations against URARP on account of suspected tax evasion. As a result, it seized “a considerable number of documents” (quoted from a ruling of the Kyiv Prosecutor’s Office of 20   September 2002 – see paragraph 27 below). The seized documentation included the original contract of sale for the six An-28s parked at the Uzyn airbase. The case file does not contain the search-and-seizure report. 18.     On 23 March 2001 the tax police launched criminal proceedings against ATI officials on suspicion of tax evasion. 19.     On 29 March 2001 the proceedings were discontinued as they had been instituted prematurely. However, by the same ruling the tax police instituted criminal proceedings against ATI officials on suspicion of document forgery. 20.     On 30 March 2001 the tax police held an “inspection of the scene” at the Uzyn airbase, as a result of which they discovered and seized the six An-28 aircraft. The seizure was documented by a “report of the inspection of the scene” (the same procedure took place at Cherkasy airport in respect of eight L-410 planes also belonging to the applicant company – see paragraph 104 below). As the security guard was unable to produce the documentation for those aircraft, submitting that it was in the applicant company’s office in Kyiv, the police concluded that “their owner could not be established”. 21.     The applicant company challenged the aforementioned seizure (as well as the seizure of the L-410 aircraft – see paragraph 105 below) before the prosecution authorities. 22.     On 10 January 2002 the tax police opened again a criminal case against the ATI officials on suspicion of tax evasion. 23.     On 21 March 2002 the Kyiv City Prosecutor’s Office wrote to the applicant company, in reply to its complaint about the alleged unlawfulness of the seizure of the aircraft of 30 March 2001, that it could not decide on the seizure of the An-28 aircraft, as in the meantime, on 10   September 2001, the Kyiv City Commercial Court had also impounded them in the context of the commercial proceedings brought by the tax authorities (see paragraph   35 below). As regards the L-410s, their seizure was found to be unlawful as it had not been based on an adequate procedural document (see paragraph   106 below). 24.     On an unspecified date a criminal case was opened against the vice-president of ATI, who was charged with abuse of office, forgery, tax evasion and money laundering. Apparently, this criminal case replaced those previously opened against the ATI officials (see paragraphs 18 and 22 above). The ATI vice-president was suspected, in particular, of having forged the contracts of 9 and 19 January 2000 (see paragraph 10 above) for the allegedly non-existent lease of the aircraft, with a view to tax evasion. 25.     On 17 April 2002 the tax police investigator conducted another inspection of the planes at the Uzyn airbase. 26.     On the same date the investigator classified the planes as material evidence in the criminal case against the ATI vice-president, with reference to Articles 78 and 79 of the Code of Criminal Procedure (see paragraph   138 below). 27.     On 20 September 2002 the Kyiv City Prosecutor’s Office refused to institute criminal proceedings against the tax police in respect of, inter alia , the search of the applicant company’s office between 23 and 25   January 2001 and the seizure of documentation relating to the aircraft. It was the fourth decision of the prosecution authorities refusing to open a criminal case in that regard. The previous three had been quashed on grounds of insufficient evidence. The applicant company also unsuccessfully tried to bring a civil claim in that regard. 28.     On 3 February 2003 the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”) found the vice-president of ATI guilty of professional negligence and acquitted him of the other charges (including the forgery of the lease contracts of 9 and 19 January 2001). By the same judgment the court ordered that the six AN-28s used as material evidence in the case be returned to “their owner”. On 8   May 2003 the Kyiv City Court of Appeal upheld that judgment. 29.     On 26 May 2003 the Pecherskyy Court wrote to the State company in charge of the management of the Uzyn airbase stating that, pursuant to the judgment of 3 February 2003, the planes in question were to be returned to their owner. 30.     On 30 May 2003 the airbase manager forwarded that instruction to the State Tax Inspectorate in Bila Tserkva (further referred to as “the Bila Tserkva Tax Inspectorate” or “the tax inspectorate”), which had entrusted it with their storage. The airbase manager also indicated that the tax inspectorate owed the State company 46,295 Ukrainian hryvnias (UAH) for the storage. 31.     On 2 June 2003 the tax inspectorate replied that meanwhile, on 16   September 2002, the aircraft had been declared ownerless (see paragraph 41 below) and that there were no lawful grounds for discontinuing their sale for State revenue (see also paragraphs   61-65 below). As to the supposed indebtedness, the tax inspectorate submitted that the planes, which were now State property, had been stored in a State-owned airbase and guarded by the tax police (see paragraphs 73-74 below). Accordingly, it considered the claim for storage costs to be without basis. 32.     On 7 February 2005 the Pecherskyy Court specified that, in accordance with the judgment of 3   February   2003, the six An-28s were to be returned to the applicant company, which was their owner. 33.     On 28 February 2005 the court issued a writ of execution on the basis of its ruling of 7 February 2005. 3.     Proceedings brought by the tax authorities for invalidation of the lease contracts of the aircraft 34.     On 20 August 2001 the Pecherskyy District State Tax Administration in Kyiv lodged a claim with the Kyiv City Commercial Court against the applicant company and ATI, seeking to invalidate the lease contracts of 9   and 19 January 2000 (see paragraph 10 above). The claimant submitted that the applicant company had in fact supplied the planes to ATI free of charge, while the impugned lease contracts had subsequently been forged to conceal that fact, with a view to absolving ATI from any income tax payable. In addition to invalidation of the lease contracts, the tax administration sought confiscation of the eight aircraft, with the proceeds of their sale going to the State budget. It also requested that the planes be impounded as an interim measure to secure the claim. 35.     On 10 September 2001 the court started the proceedings. It secured the claim by impounding the eight aircraft (including that sold to company C. and the one relocated to Moldova). 36.     On 12 October 2001 company C. asked the court to lift the impoundment of the plane it had purchased. That request was apparently granted. 37.     On 27 June 2003 the Kyiv City Commercial Court rejected the claim of the tax administration as unsubstantiated. It noted that it had been common ground that ATI had not complied with the lease contracts and therefore the applicant company remained the owner of the aircraft. The court also quashed the impoundment order of 10   September   2001 (see paragraph   35 above). 38.     On 29 September 2003 the Kyiv Commercial Court of Appeal upheld that judgment. It stated that the applicant company’s ownership of the aircraft had been confirmed by documents, while the allegation that some of the documents had been forged had been found to be unsubstantiated in the judgment of 3   February 2003 (see paragraph 28 above). 4.     Authorities’ decision to declare the six aircraft ownerless 39.     On 10 July 2002 an investigator of the Bila Tserkva Tax Inspectorate issued a report about “the temporary seizure of the taxpayer’s assets” in respect of the six An-28 planes parked at the Uzyn airbase, with a view to “settlement of the taxpayer’s obligations vis-à-vis State budgets and target funds”. The report listed the planes’ registration numbers and referred to subsection 3.2 of section 9 of the Law of Ukraine “On the procedure for the settlement of taxpayers’ obligations to State budgets and special-purpose funds” (see paragraph 140 below). It was signed by a tax police official, the Uzyn airbase manager and two attesting witnesses. 40.     On 11 July 2002 the deputy head of the Bila Tserkva Tax Inspectorate issued a decision about “the administrative seizure of the taxpayer’s assets” in respect of the aircraft in question. The decision reiterated that the measure had been undertaken with a view to “settlement of the taxpayer’s obligations vis-à-vis budgets and State target funds”. It was noted in the line “the taxpayer whose assets have been seized” that the owner of the aircraft had not been established. 41.     On 16 September 2002 the Bila Tserkva City State Administration (“the Bila Tserkva Administration”) issued an order by which it declared the six aircraft ownerless and empowered the tax police to sell them. As a result, between March and June 2003 the planes were sold to third parties (see paragraphs 61-65 below). 42.     On 15 May 2003 the applicant company lodged a claim with the Kyiv Regional Commercial Court against the Bila Tserkva Administration, challenging the order of 16 September 2002. It submitted that it was the legitimate owner of the aircraft, that the defendant had duly been informed of that fact, and that the impugned order had amounted to unlawful expropriation of the applicant company’s property. 43.     On 3 June 2003, in order to secure the claim of the applicant company, the court banned any transactions involving the aircraft. 44.     Consequently, on 4 June 2003 a bailiff sealed the six aircraft. The Ad Hoc Investigation Commission for the Investigation into Reasons for the Ukrainian Aviation Crisis Situation (“the Parliamentary Investigation Commission”), which in the meantime had been set up under the chairmanship of Mr L., MP (see paragraph 8 above), and to which the applicant company had complained, also sealed the aircraft. 45.     The Bila Tserkva Administration appealed against the impoundment of the aircraft ordered on 3 June 2003 submitting, in particular, that the applicant company’s claim was of a non-pecuniary nature, being limited to the invalidation of a document. 46.     On 8 July 2003 the Kyiv City Commercial Court of Appeal rejected that appeal. It found the appellant’s arguments groundless because the subject matter of the dispute was twofold: firstly, the impugned decision had declared the planes ownerless, and, secondly, it had authorised the tax authorities to sell the planes. Accordingly, a failure to secure the claim could jeopardise enforcement of any future judgment on the dispute. 47.     On 11 November 2003 the Higher Commercial Court quashed the rulings of 3 June and 8   July   2003 on a cassation appeal lodged by the Bila Tserkva Administration. It noted that as of 3 June 2003 the planes had remained impounded in order to secure a claim in another set of proceedings under a ruling of 10 September 2001, which had not been quashed until 27   June 2003 (see paragraphs 35 and 37 above). As the legal procedure did not provide for “double” measures for securing claims, the ruling of the Kyiv Regional Commercial Court of 3 June 2003 had no legal basis. 48.     On 25 December 2003 the Kyiv Regional Commercial Court found in favour of the applicant company and quashed the order of the Bila Tserkva Administration of 16 September 2002 (see paragraph 41 above). It stated that the property rights of the applicant company were confirmed by the aircraft registration certificates dated 28   March 2000 (see paragraph 11 above). 49.     On 9 April 2004 the Kyiv Commercial Court of Appeal upheld that judgment. It also issued a separate ruling in which it referred, inter alia , to the documentary evidence in the case file proving that the Bila Tserkva Administration had proceeded with the sale of the planes on the grounds that they were ownerless (see paragraphs 41 and 61-65 below) after having received documents from the applicant company confirming the latter’s ownership of those planes. The court thus concluded that, by declaring the planes ownerless, the defendant had infringed the applicant company’s property rights. It further instructed the Kyiv Regional State Administration, the Kyiv City Tax Administration, and the Bila Tserkva Tax Inspectorate “to take appropriate measures in respect of the officials guilty of the violations of the procedure for identifying and declaring ownerless the property belonging to the [applicant company].” 50.     On 20 July 2004 the Higher Commercial Court upheld the lower courts’ decisions of 25 December 2003 and 9 April 2004. 51.     On 9 December 2004 the General Prosecutor’s Office (“the GPO”) instituted criminal proceedings on the suspected abuse of power by officials of the tax and other state authorities, which had “had grave consequences”. The prosecutor noted that, by declaring the applicant company’s aircraft ownerless and selling them, as well as by unlawfully seizing its L-410s (see also paragraphs 104 and 106 below), the authorities had caused the applicant company “direct pecuniary damage of over one million Ukrainian hryvnias”. On 15 December 2004 the supervision department of the GPO quashed the ruling of 9 December 2004 as premature. However, this later decision was subsequently also set aside (by the Deputy General Prosecutor’s decision of 14 April 2005). There is no information on any further developments in the investigation. 52.     On 21 December 2004 the Supreme Court quashed the judgment of the Kyiv Regional Commercial Court of 25 December 2003 and the related rulings of the higher-level courts (see paragraphs 48 and 50 above) and remitted the case for fresh examination to the first-instance court. It considered that the courts had made a premature finding that the applicant company was the owner of the aircraft. The fresh examination of the case was supposed to clarify, including with the help of a forensic graphological examination, whether the contracts of sale of 30 July and 28     December   1999 (see paragraph 9 above) were authentic and in compliance with the Russian legislation as indicated therein. 53.     On 25 September 2006 the Kyiv Regional Commercial Court, having examined the case afresh, allowed the applicant company’s claim once again and quashed as unlawful the order of the Bila Tserkva Administration of 16   September   2002 (see paragraph 41 above). Pursuant to the instructions of the Supreme Court, it had undertaken a forensic graphological examination of the contract of sale of 30   July   1999 and the additional agreement of 28   December 1999, and had found the signatures on them to be authentic. The court further established that the transaction had taken place in compliance with Russian legislation as indicated in the contracts. It underlined that the aircraft had been declared ownerless despite the fact that the case file had contained copies of the certificates of their registration with the Ministry of Transport of Ukraine of 28 March 2000 (see paragraph 11 above). Furthermore, the Russian company S. had confirmed to the court in writing that it had sold the planes at issue to the applicant company. Accordingly, the court concluded that there were no reasons not to consider the contract of sale of 30 July 1999 as appropriate proof of the applicant company’s title to the planes. The court also found that the Bila Tserkva Administration had breached the procedure for identifying and declaring the property ownerless. 54.     The Bila Tserkva Administration, the Bila Tserkva Tax Inspectorate and the Kyiv Regional Prosecutor’s Office appealed. 55.     The Kyiv Tax Administration also enquired with Interpol whether the applicant company was registered and pursued its activities lawfully. 56.     On 16 January 2007 the Kyiv Regional Commercial Court of Appeal stayed the examination of the case pending receipt of information from the Irish Interpol Department concerning that enquiry. 57.     On 27 February 2007 the Ukrainian Interpol Department informed the applicant company of the reply of their Irish counterparts confirming that it (the applicant company) had no criminal record, nor any problems with the police in Ireland. 58.     On 7 June 2007 and 14 October 2008 the Kyiv Regional Commercial Court of Appeal and the Higher Administrative Court, respectively, upheld the judgment of the Kyiv Regional Commercial Court of 25 September 2006 (see paragraph 53 above; apparently at some point the jurisdiction over the case had been changed from commercial to administrative). 59.     On 10 November 2008 the applicant company asked the Bila Tserkva Tax Inspectorate to return the six aircraft to it, with reference to those judicial decisions. 60.     On 10 December 2008 the tax inspectorate replied that it was impossible to return the planes to the applicant company, because they had been sold off at a public auction in the meantime (see paragraphs   63-65 below). 5.     Sale of the aircraft to third parties 61.     In July 2002, following the seizure of the aircraft (see paragraphs   39-40 above), the Bila Tserkva Tax Inspectorate commissioned the Ukrimpeks-2000 company to store and sell them. 62.     The applicant company unsuccessfully sought to prevent the sale before the Bila Tserkva Administration. 63.     On 17 March 2003 Ukrimpeks-2000 sold one plane to a private company. 64.     On 24 April 2003 four other planes were sold to another private company. 65.     On 4 June 2003 the sixth plane was sold to the Ukrainian State Air Traffic Service Enterprise. 66.     On 12   December   2003 the Kyiv Regional Commercial Court started proceedings following a claim by the applicant company challenging all those sale contracts, and impounded the aircraft in order to secure the claim. 67.     Meanwhile, the Ukrainian State Air Traffic Service Enterprise, from its side, also challenged the contract of 4 June 2003 before the Commodity Market Arbitration Office (“Біржовий арбітраж (на правах третейського суду)”) . The buyer could not get possession of the aircraft in question and found out that the sale had been carried out despite the judicial orders to impound the aircraft of 10   September 2001 and 3 June 2003. 68.     On 19 February 2004 the Commodity Market Arbitration Office, in allowing the buyer’s claim, declared the sale of 4   June   2003 (carried out in the form of a commodity market transaction) null and void. 69.     On 19 May 2005 the Kyiv Regional Commercial Court discontinued the proceedings in which the applicant company was seeking annulment of the sale contract of 4 June 2003, with reference to that decision. 70.     On 6 July 2005 the court also quashed the impoundment order of 12   December 2003 on the ground that it was impeding technical maintenance of the aircraft (the ruling did not refer to any requests to have the order quashed). 71.     On 25 August 2009 the Kyiv Regional Commercial Court, in allowing the applicant company’s claim, declared the sale contracts of 17   March and 24   April 2003 null and void. 72.     On 17 December 2009 and 25 February 2010 the Kyiv Regional Commercial Court of Appeal and the Higher Commercial Court, respectively, upheld that judgment. 6.     Security guard of the aircraft by the tax authorities 73.     On 12 July 2002 the State Tax Administration instructed its Kyiv Regional Department to ensure security guard of the six An-28 aircraft. 74.     The planes were apparently still parked at the Uzyn airbase after their sale to third parties (see paragraphs 14, 39 and 63-65 above). 75.     According to the applicant company, on 4 June 2003 it concluded a contract with a State security agency on the guarding of the planes. That contract remained in force until August 2007 and the applicant company paid a total of UAH 351,522 (which, according to its calculations, was equivalent at the time to USD 67,865) for the services provided. According to the Government, that contract was of no effect in practice, given that the planes remained in the authorities’ custody (see also paragraph   243 below). 76.     In 2004 the applicant company found out that some of the planes had been damaged or had had some equipment removed, so it complained to the police. 77.     As a result, on 23 July 2004 the Bila Tserkva police investigator, in the presence of a representative of the applicant company, inspected the six planes. The inspection revealed that some of them had been damaged and/or had had certain equipment removed. A door handle had been broken and the door damaged on one plane, and the wheel housing, navigation equipment, engines, emergency radio installations, pilots’ seats and flashlight were missing on some of the planes. At the same time, some of the bailiffs’ seals and those of the Parliamentary Investigation Commission (see paragraph 44 above) were broken or missing, whereas there were fresh and intact Kyiv Regional Tax Administration seals on the planes. 78.     On 26 July 2004 the applicant company complained to the GPO about the theft and damage of the aircraft, emphasising that it had happened while they were being guarded by the Bila Tserkva Tax Inspectorate. The applicant company sought to institute criminal proceedings against the latter. It further argued that the planes had arrived at the airbase in good condition, referring to the fact that they had all been independently flown there, rather than taken inside the hold of another aircraft. 79.     On 5 August 2004 the prosecutor’s office refused to institute criminal proceedings against the officials of the Bila Tserkva Tax Inspectorate on account of the theft, having found no corpus delicti in their actions. 80.     On 14 September 2004 the prosecutor’s office initiated criminal investigations into the theft without targeting them against any specific persons. 81.     On 28 March 2005 the investigator terminated the investigations, having found it impossible to identify the perpetrator(s). 82.     On 2 October 2007 the applicant company brought an administrative claim against the tax authorities on account of the allegedly unlawful armed guard of the aircraft, and sought its lifting. 83.     On 19 November 2007 the Kyiv Regional Administrative Court refused to open the proceedings. It noted that the dispute in question had already been resolved by the judgment of the Kyiv Regional Commercial Court of 25 September 2006, upheld by the Kyiv Regional Commercial Court of Appeal on 7 June 2007 (see paragraphs 53 and 58 above). 84.     On 17 February 2009 the applicant company brought another administrative claim against the Bila Tserkva Administration and Tax Inspectorate seeking the return of its six AN-28s. It submitted that those authorities had committed an unlawful omission by their failure to return the planes to the applicant company as their legitimate owner. It further noted that the decision of 16   September 2002 had been quashed by the Kyiv Regional Commercial Court on 25 September 2006, whose decision had been upheld by the higher-level courts. Nonetheless, the property had never been returned to the applicant company. 85.     On 14 April 2009 the Kyiv Regional Administrative Court terminated the proceedings on the grounds that they fell under criminal rather than administrative jurisdiction. The court noted that it had been discovered that the applicant company’s claim concerned the alleged non-enforcement of a final criminal verdict (apparently meaning the verdict of the Pecherskyy Court of 3   February 2003, further clarified on 7 February 2005 – see paragraphs 28 and 32 above). 86.     On 9 October 2009 the applicant company wrote to the tax authorities that it was the only legitimate owner of the six aircraft, as the decision to declare them ownerless had been quashed by the courts. It therefore insisted that the guard of the planes be lifted and that they be returned to it. 87.     On 23 October 2009 the Bila Tserkva Tax Inspectorate replied that no decision had been taken about the lifting of the guard. 88.     On 6 November 2009 the Kyiv Regional Tax Administration also replied to the applicant company that there was no reason to stop guarding the planes given that the court proceedings on the matter were ongoing (without specifying which proceedings it was referring to). 89.     On 16 February 2010 the applicant company requested, once again, that the State Tax Administration set aside its instruction of 12 July 2002 regarding the guarding of the aircraft. 90.     On 3 March 2010 the Deputy Head of the State Tax Administration forwarded that request to the Kyiv Regional Tax Administration. 91.     On 15 March 2010 the latter dismissed the applicant company’s request. It noted that, indeed, the courts had invalidated both the decision to declare the planes ownerless and the contracts for their subsequent sale. Nonetheless, no decision had been delivered on the lifting of the security guard. 7.     Criminal investigations in respect of Ukrimpeks-2000 (the company in charge of the sale of the aircraft) 92.     On 6 October 2010 an investigator of the Bila Tserkva police department declared the six AN-28 planes as material evidence in the criminal investigation into suspected embezzlement by Ukrimpeks-2000, which had been initiated in February 2006 (the company officials were suspected of having failed to transfer all the proceeds of the aircraft sales to the State budget – see paragraphs 61 and 63-65 above). The investigator noted that the planes were under constant security guard by the Bila Tserkva Tax Inspectorate (see paragraphs 73 and 87-91 above). 93.     On 26 November 2010 the applicant company complained about that decision to the Kyiv Regional Department of the Ministry of the Interior. It stated that there were no grounds for attaching the aircraft as material evidence in the criminal case in question, which had been opened about four years earlier. The applicant company pointed out that, while the planes had been guarded by the tax authorities, their technical condition had considerably deteriorated and they had become unusable. Therefore, the applicant company suggested that the tax authorities might have been seeking ways to shift the responsibility for that deterioration onto the law-enforcement authorities. 94.     On 25 December 2010 the Bila Tserkva Prosecutor’s Office, to which the applicant company’s complaint had apparently been referred, replied that there were no reasons for it to intervene. 8.     Inspection of the aircraft by Antonov specialists 95.     On 17 June 2011 the investigator of the Bila Tserkva police department (apparently, the one in charge of the criminal investigation into suspected embezzlement by Ukrimpeks-2000 in which the planes had been declared as material evidence – see paragraph   92 above) decided that the planes should be returned to the applicant company. 96.     On 9 August 2011 the applicant company contracted Antonov, the exclusive designer and manufacturer of An-28 aircraft, to carry out an expert evaluation of the planes. 97.     From 3 to 8 October 2011 an expert commission of Antonov inspected the planes in the presence of the applicant company’s representative. It concluded that what had been presented to it for inspection had consisted of separate items and components, which could not be classified as aircraft. Nor could they be identified as constituent parts of exactly the planes belonging to the applicant company. Furthermore, no documentation for the planes was available. B.     Facts concerning the L-410 aircraft 1.     Purchase and business operations by the applicant company 98.     On 25 July 2000 the applicant company purchased six L-410 aircraft at a public auction. 99.     On 15 August 2000 it received notarised certificates that those planes were its property. 100.     On 19 September 2000 it purchased two more planes of the same type at a commodity market. 101.     Pursuant to lease contracts between the applicant company and ATI of 18   August and 1   October   2000, the eight L-410s were to be leased to the latter after repairs and technical upgrading had been carried out by the applicant company. This was envisaged to be completed by 1   May   2001. 102.     The planes were parked at Cherkasy airport. 2.     Seizure of the aircraft by the tax authorities and related events 103.     During the search conducted at the applicant company’s office in Kyiv between 23 and 25 January 2001 (see paragraph 17 above), the tax police seized original documentation for the L-410 planes. The case file does not contain the search-and-seizure report. 104.     On 30 March 2001 the tax police seized the aircraft “for the purpose of using them as material evidence in the criminal case [against the ATI officials] and for redemption of tax arrears”. The seizure was documented by a “report of the inspection of the scene” (similar to the inspection conducted on the same date at the Uzyn airbase – see paragraph   20 above). 105.     On 21 February 2002 the applicant company challenged the seizure of the planes before the Kyiv City Prosecutor’s Office. 106.     On 21 March 2002 the prosecutor replied that, indeed, the seizure of the L-410 planes had not been based on any procedural document and that he had therefore instructed the tax police to “take an appropriate decision concerning those aircraft”. 107.     On 22 April 2002 the Kyiv State Tax Administration instructed the applicant company to submit financial documentation in respect of the planes in order for a decision to be taken. 108.     On 26 April 2002 the investigator of the police department of the State Tax Administration declared the eight L-410 planes as material evidence in the criminal investigations against the ATI officials (see also paragraph 26 above). 109.     In August 2002 the criminal case was transferred to the GPO. 110.     On   2   January 2003 a criminal case was opened in respect of Mr L. as the former president of ATI (see paragraph 8 above). Apparently, the planes were then classified as material evidence in those criminal proceedings. On 26   May   2003 the GPO discontinued the criminal investigations against Mr L. as there was insufficient evidence of any guilt. It was noted in the resolution that the eight L-410 planes, which had been classified as material evidence in the case, were to be returned to ATI. On 4   August   2004 the prosecutor amended his resolution to read that the planes had to be returned to the applicant company. 111.     The applicant company unsuccessfully tried to bring proceedings before the commercial and civil courts on account of the seizure of the planes and their classification as evidence in the criminal case. On 18   October   and 1 November 2004 the Kyiv City Commercial Court and the Shevchenkivskyy Court respectively refused to accept its claims for examination as being beyond their competence. 112.     On 15 November 2004 the GPO’s supervisory department quashed the decision of 26   April   2002 (see paragraph 108 above). 113.     On 19 November 2004 it informed the Kyiv Tax Administration of that decision and instructed it to return the aircraft to the applicant company as their rightful owner. A similar letter was sent to the management of Cherkasy Airport. 114.     On   3   December 2004 the director of Cherkasy Airport informed the applicant company that the aircraft could be transferred to it only in the presence of the Kyiv Tax Administration which had seized them. 3.     Proceedings brought by the applicant company against the tax authorities 115.     On 8 February 2006 the applicant company lodged a claim with the Kyiv City Commercial Court against the Kyiv Tax Administration seeking the return of the eight L-410 aircraft. 116.     On 24 May 2006 the court allowed the claim and obliged the defendant to return the planes to the applicant company. It noted that the tax police had ignored the prosecutor’s unambiguous instructions to return the planes to the applicant company. The judgment stated as follows: “As confirmed by the case materials and not refuted by the defendant, the [applicant company] is the owner of the eight L-410 aircraft .... The failure of the Kyiv State Tax Administration to comply with the instructions of the General Prosecutor’s Office as regards the return of the planes to the claimant [unlawfully] deprives the latter of its right to possess and use its property”. 117.     On 24 October 2006 the Kyiv Commercial Court of Appeal quashed that judgment on an appeal by the Kyiv Tax Administration and terminated the proceedings. It found that the defendant had no longer been in charge of the planes after the criminal case in which they had been declared as material evidence had been transferred to the GPO in August   2002 (see paragraph 109 above). Moreover, the court considered that the destiny of the planes had already been resolved in the context of the criminal proceedings by the prosecutors’ resolutions of 26 May 2003, 4   August and 19   November   2004, pursuant to which the planes had to be returned to the applicant company (see paragraphs 110 and 113 above). The court therefore concluded that, as from 4 August 2004, there had been no impediments, including from the defendant’s side, to the applicant company’s accessing the L-410 planes. 118.     On 1 April 2008 the Higher Administrative Court issued a final decision quashing the ruling of the Kyiv Commercial Court of Appeal of 24   October   2006 and upholding the judgment of the Kyiv City Commercial Court of 24 May 2006 on the applicant company’s cassation appeal. 4.     Proceedings for enforcement of the judgment of the Kyiv City Commercial Court of 24 May 2006 119.     On 11 June 2008 the Kyiv City Commercial Court issued a writ of execution, according to which the eight L-410 aircraft were to be returned to the applicant company. 120.     On 18 June 2008 the bailiff opened enforcement proceedings and instructed the Kyiv Tax Administration to send its representative to Cherkasy airport to inspect the planes, verify their completeness and implement the transfer. 121.     From July to December 2008 the bailiff reported several times his failure to enforce the judgment because the tax authorities’ representative had been absent or because the airport administration had refused to allow the bailiff to enter the airport. 122.     From 5 December 2008 to 6 May 2010 the enforcement proceedings were stayed pending the outcome of applications lodged by both the bailiff’s service and the tax authorities with the Kyiv City Commercial Court for clarification of its judgment of 24 May 2006 (those applications were eventually rejected). 123.     From May to December 2010 the bailiff issued at least three more reports about his inability, for the same reasons as before (see paragraph   121 above), to enforce the judgment in question. 124.     Meanwhile, in September 2010, the applicant company incidentally found out about a decision of the Cherkasy City Council of 24 July 2008 authorising the municipal enterprise “Cherkasy Airport” to sell the eight L ‑ 410 p