CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 juin 2018

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UKRAINE   (Application no. 10640/05)               JUDGMENT           STRASBOURG   26 June 2018     FINAL   26/09/2018   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Industrial Financial Consortium Investment Metallurgical Union v. Ukraine, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Vincent A. De Gaetano, President,   Ganna Yudkivska,   Faris Vehabović,   Egidijus Kūris,   Carlo Ranzoni,   Georges Ravarani,   Marko Bošnjak, judges, and Marialena Tsirli, Section Registrar, Having deliberated in private on 5 June 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 10640/05) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian joint venture based in Kyiv with legal personality under Ukrainian law, Industrial Financial Consortium Investment Metallurgical Union (“the applicant company”), on 22 March 2005. 2.     The applicant company was represented by Mr V. Yasinskiy, the head of the consortium’s executive board, and by different lawyers, most recently Mr J. Reynolds of White & Case LLP based in London. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Mr I. Lishchyna of the Ministry of Justice. 3.     The applicant company complained, in the main, under Article 6 § 1 of the Convention of unfair proceedings, under Article 1 of Protocol No. 1 that the unfair proceedings had entailed the unlawful deprivation of its property, and of a violation of Articles 10, 11, 13, 14 and 18 of the Convention. 4.     On 1 December 2008 the application was communicated to the Government. The applicant company and the Government each filed observations on the application. 5.     Written submissions were also received from ArcelorMittal Duisburg GmbH, a private company with legal personality under German law, which had been granted leave to intervene by the President of the Section at the time. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     Background to the case 1.     Privatisation of Kryvorizhstal State Metallurgical Enterprise 6.     On 6   August   2003 the Cabinet of Ministers decided that Kryvorizhstal State Metallurgical Enterprise (hereinafter “Kryvorizhstal”) was to be privatised. At the time Kryvorizhstal was one of the world’s largest steel manufacturing companies, employing about 60,000 people and producing about 20% of Ukraine’s annual steel supply. On 4   November 2003 the Ministry of Economy and European Integration included Kryvorizhstal in a list of State-owned assets which were to be privatised. Subsequently, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market adopted decisions designed to ensure the privatisation of the enterprise. 7.     The applicant company was founded in April 2004 by nine private companies, five of which were owned or controlled by A., one of the leaders of the Party of Regions. Members of that party held the majority of posts in the Cabinet of Ministers in the period 2003-2004, including the post of Prime Minister. The remaining four companies were owned or controlled by P., the son-in-law of Mr L. Kuchma, the second President of Ukraine who held the post from 19 July 1994 to 23 January 2005. 8.     On 12   May   2004 the State Property Fund (“the Fund”) announced a bidding competition for the purchase of 93.02% of the share capital of Kryvorizhstal. A condition of bidding was that a bidder had to have produced one million tons of charcoal of Ukrainian origin and two million tons of steel in Ukraine in each of the three years preceding the competition. The applicant company took part in that competition. 9.     Out of six bids submitted by various companies, the Fund selected bids by the applicant company and Consortium Industrial Group, finding that these companies satisfied the conditions of the competition. 10.     On 14   June   2004 the applicant company was declared the winner (successful bidder) of the bidding competition. On the same day the applicant company concluded a purchase contract with the Fund and paid 4,260,000,000 Ukrainian hryvnas (UAH), the equivalent of about 608,000,000   euros (EUR) at the time, for the shares at issue. The shares were transferred to the applicant company’s deposit account at ING Bank Ukraine. 11.     On 23 July   2004 the applicant company appointed T. to represent it as the owner of the Kryvorizhstal shares and to complete the formalities of the transfer pursuant to the contract of 14   June   2004. 12.     Without any further specification or evidence, the applicant company stated that it had invested substantial financial resources in Kryvorizhstal during the period of its control. 2.     The 2004 presidential election and the reprivatisation of Kryvorizhstal 13 .     The lawfulness and transparency of the privatisation of Kryvorizhstal was contested by the political opposition, whose leaders in 2004 were Mr   V. Yushchenko, Mrs Y. Tymoshenko and Mr O. Moroz. In their public statements, they all accused President Kuchma, P. and A. of fraud, and called for the enterprise to be returned to the State. 14 .     During the 2004 presidential election campaign the issue was debated by two main rivals, Mr Yushchenko and Mr Yanukovych. Mr   Yanukovych, whose candidature was openly supported by President Kuchma and A., insisted that the privatisation of Kryvorizhstal had been lawful and fair. 15.     Between late November 2004 and January 2005 a series of protests took place in the immediate aftermath of the run-off vote of the 2004 election, an election which, according to numerous national and international reports, was compromised by massive corruption, voter intimidation and direct electoral fraud. These events are commonly known as the Orange Revolution. 16.     Following the revote of 26 December 2004, Mr Yanukovych lost the election to Mr Yushchenko, who became the third President of Ukraine on 23 January 2005. On 24 January 2005 Mrs Tymoshenko was appointed to the post of interim Prime Minister. On 4 February 2005 the Verkhovna Rada (Ukrainian Parliament) approved the appointment of the new Cabinet of Ministers, headed by her. The Party of Regions formed the parliamentary opposition. 17 .     According to different media reports submitted by the applicant company, between January and April 2005 President Yushchenko and Prime Minister Tymoshenko made public statements that the privatisation of Kryvorizhstal had been unlawful, and that the enterprise would be returned to the State and subsequently resold. 18 .     In particular, in an interview of 26   January 2005 Prime Minister Tymoshenko said that “Ukrainian enterprises, like Kryvorizhstal, which had blatantly been stolen, had to be returned to the State.” 19 .     On 4   February   2005 President Yushchenko made the following statement when addressing the Verkhovna Rada: “...I promise that fair privatisation will be carried out this year. Those facilities which were stolen, starting with Kryvorizhstal, will be returned to the State ...” 20 .     On 12 February 2005 the Cabinet of Ministers revoked its decision of 6   August   2003 by which the privatisation of Kryvorizhstal had been launched. On 15 February 2005 the Fund also revoked its decisions concerning the privatisation. 21 .     On 8 June   2005 the State took control of Kryvorizhstal, pursuant to commercial court decisions declaring its privatisation unlawful (see paragraphs 51-53 and 56-57 below). By a decree of 11   June   2005, the Cabinet of Ministers declared the contract of 14   June   2004 invalid and withdrew the Kryvorizhstal shares from the applicant company. 22.     On an unspecified date the money paid for the shares in the enterprise in 2004 was returned to the applicant company. 23.     By two decrees of 23 June 2005, the Cabinet of Ministers launched the procedures for resale of 93.02% of Kryvorizhstal’s share capital. On 9   August 2005 it approved the bidding conditions. The next day the bidding competition was officially announced. 24.     The applicant company did not participate in the competition. Instead, it challenged the authorities’ decrees issued in February and June 2005 before the commercial courts and the courts of general jurisdiction, but to no avail. The applicant company did not provide any further details of those proceedings. 25.     On 24 October 2005 the bidding competition was completed by an auction, which was broadcast live by major television stations. Mittal Steel Germany GmbH was declared the successful bidder. On 28   October   2005 it concluded a purchase contract with the Fund and became the new owner of 93.02% of Kryvorizhstal’s share capital, for the price of UAH   24,200,000,000, the equivalent of about EUR   3,964,021,752 at the time. Eventually, Mittal Steel Germany GmbH was succeeded by ArcelorMittal Duisburg GmbH, which, according to the documents submitted by that company, made significant investments in Kryvorizhstal. 3.     Events after the 2004 election concerning one of the applicant company’s owners 26.     According to the applicant company, after the 2004 election A. was targeted for his political expression and association. In particular, companies which he owned or controlled were subjected to various checks by the authorities. The authorities allegedly attempted to nationalise some of those companies, though they were unsuccessful. The applicant company submitted copies of several petitions to the domestic authorities made by third parties with a view to preventing the nationalisation of those companies. B.     Proceedings before the courts of general jurisdiction instituted by private individuals 1.     Proceedings instituted by N., S. and Kh. 27 .     On 28   May, 3   and 11   June   2004 respectively, three private individuals, N., a lawyer practising in Kyiv, S. and Kh., members of Parliament, lodged with the Golosiivskyy District Court of Kyiv three separate administrative law complaints against the decisions of the Fund and the State Commission on Securities and the Stock Market concerning the organisation of the 2004 bidding competition, contending that those decisions had violated the right of every citizen to participate in the privatisation of State property. 28 .     On an unspecified date the President of the Kyiv Court of Appeal transferred the case to the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”). By separate decisions of 8 and 14 June   2004, the latter court refused to consider those complaints, and ordered that its decisions be immediately “enforced”. No copy of those decisions was provided to the Court. 29.     On 2   August   2004 the Kyiv Court of Appeal changed the decisions of 8   and 14   June   2004 in part by excluding the provisions concerning their immediate enforcement. 2.     Proceedings instituted by I. and N. 30 .     On 14 June 2004 I., a private individual, and N. lodged with the Shevchenkivskyy District Court of Kyiv a claim against the Fund, the State Commission on Securities and the Stock Market, and ING Bank Ukraine, challenging the validity of their decisions and actions in connection with the privatisation of Kryvorizhstal. On an unspecified date the case was transferred to the Pecherskyy Court. 31.     At the claimants’ request, the applicant company was invited to participate in the proceedings as a third party. By letters of 20   October and 25   November   2004, the Pecherskyy district prosecutor applied to the court for leave to participate in the case to represent the interests of I. and those of the State. The prosecutor’s application was granted. C.     Proceedings before the commercial courts instituted by Consortium Industrial Group 32 .     On 25   June   2004 Consortium Industrial Group, the losing party in the 2004 bidding competition, instituted proceedings in the Kyiv Commercial Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions adopted in connection with the privatisation of Kryvorizhstal and the contract of 14   June   2004. It contended that the 2004 bidding competition had been unlawful and unfair. 33.     In particular, Consortium Industrial Group argued that the shares in Kryvorizhstal had not been issued in accordance with the law; that the competition had not been announced in due time; that the conditions of the competition had been too narrow and restrictive, thereby limiting the circle of potential bidders and disrespecting the statutory right of every citizen to participate in the privatisation of State assets; that the shares should have been sold through the stock exchange; and that its total offer, including the money it had planned to invest in Kryvorizhstal, had been higher than the amount paid by the applicant company for the shares in the enterprise. It also argued that, because the complaints by three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts in the period May-June 2004, any decision adopted between 8 and 14   June   2004 in relation to the competition had been invalid. 34 .     On 5   July   2004 the applicant company lodged a counterclaim against the other parties to the proceedings, asking the court to endorse its right to 93.02% of the Kryvorizhstal shares. 35 .     By a procedural ruling of 20 July 2004, the Kyiv Commercial Court found that the Office of the Prosecutor General had to participate in the proceedings, and ordered it to designate a representative in the proceedings. Notwithstanding that ruling, no prosecutor appeared before the Kyiv Commercial Court or the Higher Commercial Court in 2004. 36.     Kryvorizhstal took part in the proceedings as a third party. 37 .     On 19   August   2004 the Kyiv Commercial Court, having considered the arguments of Consortium Industrial Group in detail, dismissed them as unsubstantiated and found that the privatisation of Kryvorizhstal had been carried out in accordance with the relevant legislation. The court held, inter alia , that citizens’ rights to participate in the privatisation had not been restricted, since they had been free to establish companies and participate in the competition through such companies. It also stated that the complaints by the private individuals against the competition had not been lodged in accordance with the law, and thus had had no suspensive effect. The court further endorsed the applicant company’s property rights over the Kryvorizhstal shares, and banned any actions by the defendants which could violate these rights. 38.     Consortium Industrial Group appealed in cassation to the Higher Commercial Court. 39 .     On 22   October   2004 the Higher Commercial Court held a hearing in the presence of the parties’ representatives and upheld the judgment of 19   August   2004. The parties made no appeal to the Supreme Court against the decision of 22   October   2004. 40 .     On 7   February   2005 the Prosecutor General lodged a cassation appeal in the interests of the State with the Supreme Court, alleging that the contested decisions of the Kyiv Commercial Court and the Higher Commercial Court concerned the rights and obligations of the Cabinet of Ministers. The Prosecutor General sought an extension of the time-limit for lodging his appeal, stating, without giving any further details, that he had missed it since he had only become aware of the decision of 22   October   2004 in the course of examining a complaint by S. to the Prosecutor General. According to the Government, the Office of the Prosecutor General had received that complaint on 30 December 2004, and it had been directed mainly against the decision of the Higher Commercial Court of 22 October 2004. 41 .     In his appeal, the Prosecutor General mainly challenged the application of the law by the Kyiv Commercial Court and the Higher Commercial Court, and alleged that those courts’ decisions had been inconsistent with a decision of the Supreme Court in a similar case. He also stated that the courts had failed to invite the Cabinet of Ministers to take part in the proceedings, although the subject matter had concerned its functions under the relevant privatisation regulations. 42 .     On 17   February   2005 the Supreme Court granted the extension requested and opened the proceedings on the merits of the Prosecutor General’s cassation appeal. No copy of that procedural ruling was provided to the Court. 43 .     On 1   March   2005 the Supreme Court allowed the appeal by the Prosecutor General, quashed the decisions of the lower courts, and remitted the case for fresh consideration. It found that under Ukrainian law neither Consortium Industrial Group nor the applicant company had been eligible to participate in the 2004 bidding competition; that the competition had not been announced in due time, as required by law; and that the lower courts, when allowing the applicant company’s counterclaim, had erred in applying the rules of procedure, which stated that no counterclaim could be lodged by a defendant against another defendant in the proceedings. 44.     On 21   March 2005 the Deputy Prosecutor General lodged with the Kyiv Commercial Court, to which the case had been remitted, a claim in the interests of the State and on behalf of the Fund against the applicant company, the Ministry of Industrial Policy, and the State Commission on Securities and the Stock Market. His claim was directed against the decisions concerning the privatisation of Kryvorizhstal and the contract of 14   June   2004. He also sought the return of the Kryvorizhstal shares to the Fund, and asked the court to seize the shares as a temporary measure until the dispute was finally resolved. 45.     The Deputy Prosecutor General argued that the 2004 bidding competition had not been organised in a lawful and fair way, particularly regarding the conditions which the potential bidders had had to satisfy. He further submitted that the bidders whose offers had been chosen had not satisfied the legislative requirements for participating in that competition. 46.     On 23   March 2005 the court held a hearing in camera at which it decided to open the proceedings and invite the parties to submit their arguments on the case. It also scheduled the next hearing for 1   April   2005. 47.     On 1   April   2005 the court ordered that ING Bank Ukraine, where the shares at issue had been deposited, participate in the case as a defendant. The Office of the General Prosecutor was granted leave to take part in the proceedings as a third party on behalf of the Cabinet of Ministers. 48.     On 15   April   2005 the applicant company requested that the court allow journalists to attend the hearings in the case. The court rejected that application, finding that the journalists had not obtained official authorisation from the court administration. 49.     Subsequently, journalists obtained the necessary authorisation and attended the hearings. 50.     On 21   April   2005 a copy of the Pecherskyy Court’s decision of 21   April   2005 (see paragraph 83 below) was included in the case file and examined by the court at a hearing on the same day. 51 .     On 22   April   2005 the court delivered a judgment in the case whereby it allowed the claims of Consortium Industrial Group and the Office of the Prosecutor General, which it found to be of the same nature. It annulled the authorities’ decisions concerning the 2004 privatisation and the contract of 14   June   2004, and ordered the Fund to return the money paid by the applicant company for the Kryvorizhstal shares. The applicant company’s counterclaim was rejected, and it was ordered to return the shares to the Fund and pay UAH   1,903, the equivalent of about EUR   291 at the time, to the State for costs and expenses. 52 .     The court held that the Fund had failed to announce the competition in due time; that it had unlawfully introduced a condition concerning the production of charcoal and steel; that the Fund had failed to set out specific conditions of sale of certain number of the Kryvorizhstal shares outside the bidding competition; that the Fund’s decisions issued between 8 and 14   June   2004 in relation to the competition had been invalid, as the complaints of three private individuals against the decisions concerning the organisation of the 2004 bidding competition had been ongoing before the courts during that period; and that the applicant company and Consortium Industrial Group had unlawfully been allowed to participate in the competition. 53 .     By a procedural ruling of 28   April   2005, the same court seized the shares at issue. On the same day, bailiffs started enforcement proceedings in respect of that ruling. 54.     The applicant company appealed against the judgment of 22   April   2005 and the ruling of 28   April   2005. According to the text of the Kyiv Commercial Court of Appeal’s decision of 2 June 2005 (see paragraph 56 below), the applicant company contended that the Kyiv Commercial Court had wrongly established the circumstances of the case, and that it had erred in applying the law. The applicant company further challenged the lawfulness of the bailiffs’ actions as regards enforcement of the ruling of 28   April   2005. No copy of the applicant company’s appeal was provided to the Court. 55.     In the appeal proceedings, the applicant company asked the Kyiv Commercial Court of Appeal to suspend the proceedings before the commercial courts pending the outcome of the proceedings before the courts of general jurisdiction (see paragraphs 81-87 below). The court rejected that application on the grounds that the latter proceedings were not decisive for the outcome of the commercial case. 56 .     On 2   June   2005 the Kyiv Commercial Court of Appeal changed the judgment of 22   April   2005 in part. In particular, the appeal court found that the claims by Consortium Industrial Group had to be rejected, as it had not been eligible to participate in the 2004 bidding competition. The applicant company’s appeal was dismissed as unsubstantiated. 57 .     By the same decision, the appeal court annulled the ruling of 28   April   2005 for non-compliance with the procedural rules, and refused to consider the applicant company’s complaints against the bailiffs, on the basis that the matter fell outside its jurisdiction. The court further ruled to seize the Kryvorizhstal shares for the purpose of securing the claim by the Office of the Prosecutor General. 58.     The applicant company appealed in cassation. No copy of the cassation appeal was provided to the Court. 59 .     On 21 July 2005 the Higher Commercial Court rejected the applicant company’s cassation appeal as unsubstantiated. 60 .     On 31 August   2005 a panel of three judges of the Supreme Court rejected the applicant company’s further cassation appeal. No copy of that appeal was provided to the Court. 61 .     In the course of the proceedings before the commercial courts between February and June 2005 the applicant company challenged the impartiality of the judges and the courts dealing with its case on a number of occasions, alleging that their decisions and actions were influenced by government officials. According to the text of the judgment of the Kyiv Commercial Court of 22 April 2005 and the decision of the Kyiv Commercial Court of Appeal of 2 June 2005 (see paragraphs 51-52 and 56 ‑ 57 above), the applicant company’s procedural applications were rejected as unsubstantiated. No further explanation in that regard was given by the courts. D.     Public statements concerning the proceedings before the commercial courts instituted by Consortium Industrial Group 62 .     After 1 March 2005, and while the applicant company’s case was being considered by the commercial courts, the President and the Prime Minister made a number of public statements concerning the proceedings. The applicant company submitted different media reports reproducing and/or interpreting those statements. The Government argued that some of the reports had not interpreted the statements accurately. In particular, they referred to the reports concerning the Prime Minister’s press conference of 5   April 2005, at which she had made statements as to when the ongoing proceedings before the Kyiv Commercial Court might be completed. 63 .     According to a number of other reports, at a press conference of 11   April   2005 the Prime Minister said: “... Facilities such as Kryvorizhstal ... I think that today the [authorities] are involved in the court proceedings concerning the return of those assets to the State. We are confident that we have a clear position [in relation to the case], and these enterprises will be returned to the State ...” In an interview of 14   April   2005 the President stated: “... If the owners refuse to cooperate voluntarily, we will go down the legal route and will undoubtedly win [the case]. [However,] this will take several months... The facility has been stolen, and the cost of that theft is several billion [United States] dollars. For me, this is a fact... We prepare the terms of a new [bidding] competition...” 64 .     On 23 April   2005, commenting on the possibility that the applicant company could appeal against the judgment of 22   April   2005, the Prime Minister stated: “... This will be an important decision by the appeal [court]. It will be evidence not only of the court’s objectivity, but also of the [past] negotiations behind closed doors between various representatives from the authorities and the business...” E.     Proceedings before the courts of general jurisdiction instituted by Consortium Industrial Group 65 .     In July   2004 Consortium Industrial Group instituted proceedings in the Pecherskyy Court against the applicant company, the Fund, the Ministry of Industrial Policy and the State Commission on Securities and the Stock Market, challenging the validity of the authorities’ decisions issued in connection with the privatisation of Kryvorizhstal and the contract of 14   June   2004. Consortium Industrial Group relied mainly on the same circumstances and considerations referred to in its claims before the commercial courts. Its claims before the courts of general jurisdiction contained an additional element – a challenge to the validity of T.’s appointment on 23 July   2004 as the applicant company’s representative in the procedures following the 2004 bidding competition. 66.     T. took part in the proceedings as a defendant. Kryvorizhstal participated in the proceedings as a third party. 67 .     On 25   August   2004 the court delivered a judgment dismissing the claims of Consortium Industrial Group. For the most part, it contained identical reasons to those in the judgment of the Kyiv Commercial Court of 19   August   2004 (see paragraph 37 above). 68 .     On 1 and 27   December   2004 respectively the Kyiv Court of Appeal and a panel of three judges of the Supreme Court upheld the judgment of 25   August   2004. 69.     On 9 February   2005 N. lodged an application for review of the above case with the Pecherskyy Court, in the light of newly discovered circumstances. In particular, she argued that the findings concerning the right of every citizen to participate in the privatisation of State assets contained in the judgment of 25   August   2004 had been contrary to the judgment of the Constitutional Court of 1   December   2004 (see paragraph 99 below). She also contended that the courts had not been aware of the fact that the decisions of the Pecherskyy Court of 8   and 14   June   2004 had been challenged on appeal, and thus they had not become final before 2   August 2004. 70 .     N.’s application was dealt with by the same judge of the Pecherskyy Court who had sat in the main proceedings. 71.     By a telegram of 15   February   2005, the court informed the applicant company that the next day it would hold a hearing, at the request of N.. 72.     On 15   February   2005 the applicant company lodged with the court an application to consult the case file. The application was not granted. 73.     On 16   February   2005 the court held a hearing on the merits of N.’s application. Consortium Industrial Group, T., the State Commission on Securities and the Stock Market and Kryvorizhstal, who had been the parties to the main proceedings, did not take part in the hearing. 74.     The representatives of the applicant company requested leave to consult the case file and the adjournment of the hearing on the grounds that they had not been informed about the merits of the application before the hearing, and accordingly had not been able to prepare for it. They also sought the withdrawal of the judge dealing with the case, challenging her impartiality. 75.     The judge rejected the applications by the applicant company’s representatives, and read out the application by N. 76.     The applicant company’s representatives objected to the application, arguing that N. was not entitled to ask for a review of the case, since she had not been a party to the original proceedings, and there were no newly discovered circumstances or other reasons capable of warranting the reopening of the proceedings. 77.     The applicant company’s representatives did not receive a copy of the application either before or during the hearing. 78 .     On 17   February   2005 the court allowed the application. It found that the right of every citizen, including that of N., to participate in privatisation and challenge its lawfulness had been confirmed by the judgment of the Constitutional Court of 1   December   2004. It also held that the ruling of 8   June   2004 on N.’s complaint concerning the 2004 competition had not entered into force at the time when the competition had taken place, and thus it could not have served as one of the grounds for rejecting the claims by Consortium Industrial Group. 79.     The court quashed its judgment of 25   August   2004 and held that the higher courts’ decisions of 1 and 27   December   2004 were no longer valid. 80.     On an unspecified date the case was transferred to another judge of the Pecherskyy Court for fresh examination. F.     Joined proceedings before the courts of general jurisdiction 81 .     On 28   February   2005, following an application by N., the Pecherskyy Court decided to examine the claims of I., N., and Consortium Industrial Group (see paragraphs 30 and 65 above) jointly, holding that they were of the same nature and concerned the same defendants. 82 .     On an unspecified date the applicant company lodged an application for review of the ruling of 17   February   2005 with the same court, in the light of newly discovered circumstances. 83 .     On 21   April   2005 the court granted the application by the applicant company, quashed the ruling of 17   February   2005, and rejected N.’s application of 9 February   2005 on the grounds that she had not participated in the original proceedings concerning the claims by Consortium Industrial Group. 84 .     By a separate ruling of the same date, the court rejected the claims by I. and N., finding that they had not participated in the 2004 bidding competition and did not have an arguable claim in respect of the subject matter of the proceedings. The court held that their claims represented a disguised attempt to settle a dispute between legal entities falling within the jurisdiction of commercial courts. 85 .     By decisions of 20 and 27   July   2005, the Kyiv Court of Appeal quashed the ruling of 21   April   2005, stating that, in the light of newly discovered circumstances, the ruling of 17   February   2005 was not to be reviewed, and that, with regard to Article   6 of the Convention, the Pecherskyy Court had unlawfully limited I.’s and N.’s right of access to a court. 86 .     On 15   October   2007 the Donetsk Regional Court of Appeal, acting as a court of cassation, upheld the decisions of 20 and 27   July   2005. 87 .     The case was remitted to the Pecherskyy Court, which on 6   February 2008 decided not to examine the claim of Consortium Industrial Group, because its representatives had failed to appear before the court. 88.     No appeal was lodged against the decision of 6 February 2008. According to the Government, on the basis of that decision the joined proceedings before the courts of general jurisdiction were terminated. The applicant company did not contest this. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The 1991 Code of Commercial Procedure, as worded at the material time 89 .     Article 53 of the Code set out that, at the request of a party to proceedings or a prosecutor, or on its own initiative, a court could renew a time-limit if it considered that there were valid reasons for the time-limit being missed. 90 .     Under Articles 111-11, 111-14 and 111-16, a decision of the Higher Commercial Court had the force of law when delivered, but parties to proceedings and the Prosecutor General were entitled to lodge a cassation appeal with the Supreme Court within one month of the decision being delivered. 91.     Article 111-15 provided that the Supreme Court had to examine cassation appeals if they were based on one of the following grounds: (i) the Higher Commercial Court’s application of a legal act contravening the Constitution; (ii) an impugned decision’s inconsistency with the case-law of the Supreme Court or a different specialised higher court on the application of the same substantive law provisions; (iii) the Higher Commercial Court’s inconsistent application of the same legal provision in similar cases; (iv) an impugned decision’s inconsistency with the international treaties of Ukraine approved by Parliament; and (v) a finding by an international judicial authority with jurisdiction recognised by Ukraine that an impugned decision violated the international commitments of Ukraine. 92.     In accordance with Article   111-19, the Supreme Court had the power to quash a decision of the Higher Commercial Court if it was inconsistent with the Constitution or Ukraine’s international treaties approved by Parliament, or if it was based on the incorrect application of substantive law. The Supreme Court’s decision was final and could not be appealed against (Article 111-20). B.     The 1963 Code of Civil Procedure (repealed on 1   September   2005) 93.     As set out in Article   4 of the Code, any interested person was entitled to apply to a court to defend a violated or disputed right or interest protected by law. 94.     Article   248-1 of the Code established that every citizen was entitled to lodge a complaint with a court if he or she considered that his or her rights, freedoms or lawful interests had been infringed by a decision or action of a public authority or official, or by inactivity on the part of a public authority or official. In accordance with Article   248-4, the lodging of such a complaint suspended the execution of the impugned decision. 95.     Under Article   347-2 of the Code, judgments and rulings of courts of first instance, appeal courts and cassation courts could be reviewed in the light of newly discovered circumstances. The same Article set out five grounds for such a review: (i) significant circumstances which had not been and could not have been known to the person applying for a review; (ii) the intentionally false testimony of a witness, intentionally incorrect expert conclusions, intentionally incorrect translations, forged documentary or material evidence leading to the issuing of an unlawful judgment, as established by a final judgment in a criminal case; (iii) criminal offences committed by parties, other persons participating in a case, or judges, in the course of a case being considered, as established by a final judgment in a criminal case; (iv) the annulment of a judgment, court ruling or decision of another authority on which the judgment or ruling at issue was based; and (v) the law applied by a court in the determination of a case being declared unconstitutional. 96 .     Article 347-3 of the Code contained a list of those who were entitled to apply for a review of judgments and court rulings in the light of newly discovered circumstances: parties to a case, other persons participating in proceedings, and prosecutors. They could do so within three months of discovering grounds for such a review. 97.     Under Article   347-6, an application for review had to be examined at a hearing of which parties, other persons participating in the case and a prosecutor had been informed. Their failure to appear at that hearing did not prevent a court from examining the application. If the court decided to allow the application and annul a judgment or ruling, the case was to be considered in accordance with the procedure set out by the Code. 98.     In accordance with Article   347-7 of the Code, the decision to grant an application for review of a judgment or ruling of a court in the light of newly discovered circumstances was final and could not be challenged on appeal. C.     Judgment of the Constitutional Court of 1   December   2004 99 .     The relevant provisions of the Constitutional Court’s judgment read as follows: “1... [The members of Parliament] of Ukraine lodged with the Constitutional Court of Ukraine an application for an official interpretation of the notion ‘interest protected by law’, as used in the first paragraph of Article   4 of the Code of Civil Procedure ..., and for an [official] explanation as to ‘whether this notion concerns an individual’s interest – a shareholder in a joint-stock company who applies to a court with a view to defending the violated rights of the joint-stock company ..., taking into account the fact that, because of the violation of the rights of the joint-stock company, the rights of the company’s shareholder[s], as set out in the current legislation of Ukraine and/or the company’s articles of association, have also been infringed’. ... the Constitutional Court decided: 1.     The notion ‘interest protected by law’ ... is to be understood as an inclination to use pecuniary and/or non-pecuniary benefits ... [an inclination] which is a distinct object of judicial protection and of other remedies aimed at satisfying individual and collective needs which are not contrary to the Constitution and laws of Ukraine, social interests, [the principles of] fairness, good faith, reasonableness, or other fundamental principles of law. 2.     In the context of the question raised in the constitutional application, the provisions of the first paragraph of Article 4 of the Code of Civil Procedure of Ukraine are to be understood as meaning that a shareholder may defend his rights and interests protected by law through an application to a court if they are violated, disputed or not acknowledged by the joint-stock company [in which he or she holds shares], its organs or by other shareholders of that company. The law shall determine the procedure of judicial protection of the joint-stock company’s rights and interests ... violated by any person, including third parties, where those rights and interests are not considered to equate simply to the totality of the individual interests ... of its shareholders. ...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION 100 .     The applicant company complained, in its original application of 22   March 2005 which was subsequently amended on 21   June 2005, of a violation of Article   6   §   1 and Article 13 of the Convention, stating that after the 2004 election the proceedings concerning the 2004 bidding competition before the courts of general jurisdiction and the commercial courts had been conducted in an unfair manner. 101 .     Firstly, according to the applicant company, the principle of legal certainty had not been observed in those proceedings in view of (i) the annulment of the final judgment of the Pecherskyy Court of 25   August 2004 and the decisions of the Kyiv Court of Appeal and the Supreme Court of 1   and 27 December   2004; (ii) its case being reconsidered following an appeal by the Prosecutor General, who had not been a party to the proceedings, after being finally determined by the Higher Commercial Court on 22   October   2004; (iii) the failure of the Kyiv Commercial Court and the Commercial Court of Appeal to take into account the findings contained in the judgment of the Pecherskyy Court of 25   August   2004 as regards the same parties, facts and arguments; and (iv) the conflicting approaches to the interpretation of the relevant domestic law of the commercial courts and the courts of general jurisdiction dealing with its cases. 102 .     Secondly, the applicant company alleged that the review proceedings before the Pecherskyy Court in February 2005 had not been fair. In particular, it complained that the application to reopen the proceedings in the light of newly discovered circumstances had been lodged by a person who had not participated in the main proceedings, and that there had been no reason to reopen the case. It further alleged that the Pecherskyy Court had failed to respect the principle of equality of arms when considering that application, in that the applicant company’s lawyers had not been promptly informed of the hearing of 16   February   2005 or provided with a copy of the application to reopen the proceedings, or the documents in support of that application. Consequently, they had not been able to prepare for that hearing and comment effectively on the merits of the application. 103 .     Thirdly, the applicant company stated that the proceedings before the Supreme Court in the period February-March 2005 had also been unfair, arguing that the Prosecutor General’s cassation appeal had been considered on the merits, notwithstanding the fact that it had been lodged out of time. 104 .     Fourthly, the applicant company alleged that its lawyers had had no opportunity to put forward their arguments at the hearing of 23   March 2005 before the Kyiv Commercial Court, that journalists had not been allowed to attend that hearing, and that the judgment of 22   April   2005 lacked reasons. 105 .     Fifthly, the applicant company claimed that the courts dealing with its cases after the 2004 election had not been impartial and independent, and that their decisions which had been unfavourable to it had been politically motivated and influenced by top government officials. By making public statements concerning the ongoing proceedings, the authorities had violated Article   6 of the Convention. 106 .     In its submissions of 19   March   2008, the applicant company also complained regarding the unfavourable outcome of its application for review of the decision of the Pecherskyy Court of 17   February   2005, and of the failure of the authorities to inform it of the hearing of 21   July   2005 before the Higher Commercial Court, and the fact that the hearing had been held in the absence of its lawyers. 107 .     In its submissions of 7   July 2009, the applicant company further complained that there had been a violation of the principle of impartiality in the reopened proceedings in its case, in that the State authorities had revoked their decisions relating to the launch and conduct of the process privatising Kryvorizhstal while those proceedings had been ongoing (see   paragraph 20 above). 108.     The Court considers that the applicant company’s complaints fall to be examined under Article 6   §   1 of the Convention, which reads, in so far as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.” A.     Admissibility 109.     At the outset, the Court notes that the applicant company’s complaints essentially concern the manner in which the courts of general jurisdiction and the commercial courts examined the dispute concerning the lawfulness of the privatisation of Kryvorizhstal after the 2004 election. There are three main issues regarding which the applicant company complained: (i) the quashing of the final decisions in its cases and the subsequent reopening of the proceedings in February 2005; (ii) the allegedly inconsistent decisions taken by the courts after the proceedings were reopened; and (iii) the alleged vi