CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 9 juillet 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s74825D0C { margin-top:6pt; margin-left:35.45pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s6B505E72 { margin:0pt; padding-left:0pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s4F597665 { width:33.22pt; display:inline-block } .sEEEC397 { width:146.09pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block }     SECOND SECTION DECISION Application no. 63403/13 ZOLOTYY MANDARYN OYL, TOV against Ukraine   The European Court of Human Rights (Second Section), sitting on 9   July 2024 as a Chamber composed of:   Arnfinn Bårdsen , President ,   Jovan Ilievski, ad hoc judge,   Pauliine Koskelo   Saadet Yüksel,   Frédéric Krenc,   Davor Derenčinović,   Gediminas Sagatys, judges, and Hasan Bakırcı, Section Registrar, Having regard to: the above application lodged on 14 September 2013; the decision of 20 October 2015 to strike the application out of the Court’s list of cases; the Government’s request to restore the application to the list of cases; the withdrawal of Judge M. Gnatovskyy, the judge elected in respect of Ukraine (Rule 28 of the Rules of Court), and the decision of the President of the Chamber to designate Judge J. Ilievski to sit as an ad hoc judge (Rule   29 §   2   (b) of the Rules of Court); Having deliberated, decides as follows: FACTS AND procedure 1.     The applicant in the proceedings instituted before the Court on 14   September 2013, Zolotyy Mandaryn Oyl, TOV, is a legal entity registered in Ukraine. In those proceedings, which resulted in a decision of strike-out taken on 20 October 2015 (see paragraph 5 below) the applicant company had been represented by Mr I. Karaman, a lawyer who at the time practiced in Kyiv. By a letter of 21 May 2021 Mr Karaman informed the Court that he no longer represented the applicant company. The latter did not appoint another representative and was granted leave to represent itself in the present proceedings before the Court (Rule 36   § 2   in   fine   of the Rules of Court). 2.     The Ukrainian Government (“the Government”) were represented by their Agent, Ms M. Sokorenko. 3.     At the origin of the present proceedings is an application by Zolotyy Mandaryn Oyl, TOV, belonging to the large group of Ivanov follow-up applications against Ukraine which arose from a systemic problem of prolonged non-enforcement of domestic final judicial decisions (see Yuriy   Nikolayevich Ivanov v. Ukraine , no. 40450/04, 15 October 2009; details of the procedure adopted in such applications are set out in Burmych and Others v. Ukraine (striking out) [GC], nos. 46852/13 et al, §§ 8-44, 12   October 2017 (extracts)). The applicant company complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 about the lengthy non-enforcement of a judgment adopted in its favour. 4 .     The specific subject matter of the above application concerned the alleged non-enforcement of the Kyiv Commercial Court’s judgment of 21   April 2009 – as amended by the decision of 12 May 2009 – in the applicant company’s favour, rendered against Kyivenergo Joint Stock Company, which according to the applicant company was at the time of the lodging of the application State-owned up to 25 %. The judgment of 21 April 2009 ordered Kyivenergo to return in kind some 24,600 tons of oil to the applicant company, while the decision of 12 May 2009 changed the form of enforcement, due to the impossibility of Kyivenergo to return the oil in kind, ordering the latter instead to pay to the applicant company the amount of 54,179,613.40   Ukrainian hryvnias (UAH; at the time of the application to the Court approximately five million euros). 5 .     On 20 October 2015 the Court, sitting as a Committee, decided to strike the application out of the list of cases in accordance with Article 37 § 1 (b) of the Convention based on a friendly settlement agreement between the applicant company and the Government signed on 22 July 2015, as confirmed by the applicant company’s representative on 10 August 2015. The relevant part of the Court’s decision reads as follows: “On 22 July 2015 the Court received a letter from the Government stating that the applicant did not wish to pursue its application as a result of a friendly settlement agreement signed on 22 July 2015 between the applicant and the Government. A copy of the agreement was attached to the letter, the relevant parts read as follows: ‘...the Government of Ukraine will pay the debt still owed to the applicant under the decision of the Kyiv Commercial Court of 12 May 2009 which changed the way of execution of the judgment of the same court of 21 April 2009 with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights. The Government undertake to enforce the above decision within three months from the date of notification of the decision taken by the Court pursuant to Article   37 §   1 of the European Convention of Human Rights. The enforcement of the decision of the Kyiv Commercial Court of 12 May 2009 which changed the way of execution of the judgment of the same court of 21 April 2009 will constitute the final resolution of the case.’ On 10 August 2015 the Court received a letter from the applicant’s representative confirming that the applicant company agreed to the conditions of the friendly settlement declaration. ... In the light of the above, the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention and that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application under Article 37 § 1 in fine. Accordingly, the case should be struck out of the list.” 6 .     On 26 October 2020 the Government submitted a request for restoration of the application to the list of cases (Article 37 § 2 of the Convention and Rule 43 § 5 of the Rules of Court) and invited the Court to declare it inadmissible either on the grounds that the applicant company had lost its victim status or, alternatively, because its conduct constituted an abuse of the right of individual application. In support of the particular facts submitted in the request, the Government provided documents which they had received from the National Anti-Corruption Bureau of Ukraine (hereinafter: “the NABU”). 7.     On 15 December 2020 the Court decided that the Government’s request should be communicated to the applicant company for comments. 8.     Following several unsuccessful attempts – notably, on 21 January, 22   March, 8 July and 22 September 2021 – to serve the Government’s request on the applicant company, and following a disruption of the postal services because of the ongoing war in Ukraine, on 3 March 2023 the Government informed the Court that, according to the NABU’s findings, in the past ten years the applicant company had changed directors nine times and that its current director and representative was a certain Mr Y.V.O. The Government also provided the address and the contact details of the person in question. The same person is indicated as the applicant company’s director in the publicly available register of companies of Ukraine. 9 .     On 24 March 2023 the Government’s restoration request and the accompanying documents were served on Mr Y.V.O. The applicant company did not avail itself of the possibility to provide comments on the Government’s request. THE LAW The Government’s request 10 .     The Government submitted that on 22 and 24 February 2016, in the execution of the friendly settlement, the Ministry of Justice transferred to the applicant company’s bank account the amount of UAH   54,179,613.40. However, on 30 April 2020 the NABU informed the Ministry of Justice that in the course of an investigation concerning suspicious dealings relating to the claim in question, it found the following. On 10 April 2013, the applicant company had signed an agreement with another company, Issahar-Zevulon Import-Export TOV (hereinafter: “IZIE”), on the basis of which the applicant company assigned to IZIE its claim against Kyivenergo, i.e. the claim established in the above-noted judgment/decision of the Kyiv Commercial Court, and IZIE had transferred to the applicant company the amount corresponding to the value of the claim (see paragraph 4 above). Subsequently, by an additional agreement of 15 February 2016, the applicant company and IZIE terminated the 2013 agreement and decided that the transferred amount of money would be paid back to IZIE as a settlement for the termination. 11 .     The Government argued that these facts showed that before the lodging of its application with the Court, on 14 September 2013, the applicant company had ceased to be the creditor under the relevant Kyiv Commercial Court’s judgment/decision. At the same time, IZIE had not substituted itself for the applicant company as the creditor in the domestic enforcement proceedings and did not lodge an application with the Court. In the Government’s view, this situation was therefore similar to that in the case of Promimpro Exports and Imports Limited and Sinequanon Invest, SARL v.   Ukraine ((dec.) [Committee], no. 32317/10, 10 September 2019) which the Court declared inadmissible. 12 .     According to the Government, the above fact – namely, the assignment of the applicant company’s claim in favour of IZIE – had not been known to the Court as the applicant company had concealed it when lodging the application. Moreover, it being a commercial contract that had not been reported to any State authority, the Government had not been aware of its existence before it was discovered in the NABU’s investigation. In this connection, in the Government’s view, the additional agreement of 15   February 2016 (see paragraph 10 in fine above) was of no relevance as it was concluded after the adoption of the Court’s decision in the present case and was a sham transaction aimed at covering up the applicant company’s lack of victim status during the Convention proceedings. In these circumstances, the Government invited the Court to restore the application to its list of cases and to declare it inadmissible (see paragraph 6 above). 13.     The applicant company did not comment on the Government’s request (see paragraph 9 above). The Court’s assessment 14.     Article 37 § 2 of the Convention provides as follows: “The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.” 15.     The Court notes that the decisive question with respect to a restoration request is whether there are exceptional circumstances which justify the restoration of the application to the list of cases (Rule 43 § 5). In a vast majority of cases the restoration is accepted in the applicant’s favour mainly because the respondent Government failed to comply with their obligations flowing from a strike-out decision (see, for instance, Aleksentseva and Others v.   Russia , nos. 75025/01 and 28 others, strike-out decision of 4 September 2003, restoration decision of 23   March 2006 and the judgment of 17   January 2008, and Yavorovenko and Others v. Ukraine [Committee], no.   25663/02 and 30 others, §§ 7-10, 17 July 2014). However, in some instances it may be accepted in favour of the Government, such as where the application has been struck out of the list of cases without specific critical information having been disclosed to the Court (see, for instance, Vyšniauskas v. Lithuania (dec.) [Committee], no. 43584/13, 18   January 2018, and Dzhazhiyev v. Russia (dec.) [Committee], no. 64215/11, 14   November 2019). 16 .     The circumstances of the present case bear resemblance to those in the case of Otto Wolff Handelsgesellschaft mbH v. Romania (dec.) [Committee], no.   53877/10, 15 June 2017, which, being a Committee case, may be noted for illustrative purposes. In that case, the Government requested the restoration of the case to the list of cases on the grounds that they had concluded a friendly settlement with the applicant company without being aware of the changes in the applicant company’s status, namely the fact that it had merged with another company which took over all the applicant company’s assets and liabilities. The Court granted the request, restored the case and then, considering that the applicant company had ceased to have victim status, struck it out of the list of cases under Article 37 § 1 (c) of the Convention. 17 .     In this connection, the Court also takes note of the Government’s reliance on the Promimpro Exports and Imports Limited and Sinequanon Invest, SARL case (see paragraph 11 above). That case concerned the complaint of non-enforcement of an arbitral award made in the first applicant company’s favour, where the first applicant company had then ceded by assignation its rights relating to the award fully in favour of the second applicant company. However, the latter never sought to be recognised as the new creditor in the enforcement proceedings before the domestic courts. The Court therefore found that by fully transferring the rights relating to the enforcement of the arbitral award to the second applicant company, the first applicant company lost its victim status under the Convention. At the same time, the Court considered that by failing to institute the relevant domestic proceedings and to claim its succession to the debt before the courts, the second applicant company had never formally acquired the victim status necessary to claim a violation of its own rights under the Convention. The Court therefore declared the applicant companies’ complaints inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. 18 .     In the present case, the agreement on the assignment of the applicant company’s claim in favour of IZIE (see paragraph 10 above) was not disclosed to the Court at any stage in the proceedings leading to the adoption of the strike-out decision of 20 October 2015. Moreover, as this was a private commercial contract between the two companies, and in the absence of any explanation by the applicant company to the contrary, the Court has no reason to doubt the Government’s submission that they were not, and could not have been, aware of its existence before it was discovered in the NABU’s investigation. 19.     At the same time, it follows from the documents available to the Court that payments have been made between the applicant company and IZIE on the basis of that agreement. Thus, whatever the exact circumstances relating to the purpose of the agreement in question, the fact is that it produced legal effects concerning the claim which was the subject matter of the complaint lodged by the applicant company before the Court. 20.     The Court notes that the investigation materials provided by the Government were not commented or in any way contested by the applicant company. The Court stresses that the domestic criminal proceedings seem to be still pending. Accordingly, it will have regard to the materials provided by the Government only inasmuch as they have a bearing on the applicant company’s complaint regarding the non-enforcement of the Kyiv Commercial Court’s judgment and its alleged abuse of the right of individual application in that respect (compare Povilonis v. Lithuania (dec.), no.   81624/17, §§ 93 and 95, 15 March 2022). 21.     In this connection, the Court finds it important to note that the assignation agreement had been concluded before the lodging of the application in the present case, which was not disclosed in the application form. Instead, contrary to the reality of the situation pertaining at the relevant time, the applicant company led the Court and the Government to believe that it was the sole creditor of the non-enforced claim against Kyivenergo. Moreover, it allowed this impression to persist until the conclusion of the friendly settlement agreement with the Government relating to that claim and the striking of the application out of the list of cases. 22 .     Having regard to these considerations, and the cited examples from its case-law (see paragraphs 16-17 above), the Court considers that a serious issue has emerged as to whether the applicant company retained the victim status after the assignment of its claim in favour of IZIE, which is a matter that goes to the Court’s jurisdiction and which the Court must examine of its own motion (see, for instance, A and B v. Croatia , no. 7144/15, § 88, 20   June 2019, with further reference). Moreover, a serious issue has emerged as to whether, by failing to disclose the existence of the agreement, the applicant company abused its right of individual application (see paragraphs 28-29 below), which the Court also must examine of its own motion (see, for instance, Ćalović v. Montenegro (dec.), no. 18667/11, §§ 33-37, 11 July 2017). 23 .     In this connection, it should be noted that the Court has held that in the context of friendly settlement agreements it “must satisfy itself that there are no reasons of public policy ( ordre public ) of a kind which would necessitate the continuation of the proceedings” (see Can v. Austria , 30   September 1985, § 15, Series A no. 96; see also Radojević v. Slovenia (dec.) [Committee], no. 26666/12, 27 May 2014, referring to “pressure or deception”). In the present case, at the moment when the Court accepted to strike the application out of the list of cases on the basis of the friendly settlement agreement, not only was there a latent issue of deception as regards the prior assignment of the claim against Kyivenergo and the applicant company’s entitlement to claim the enforcement of the debt, but also an issue of public policy both as regards the existence of the applicant company’s victim status and the related question of abuse of the right of individual application. 24 .     In these circumstances, having regard to the failure of the applicant company to inform the Court and the Government of the existence of the assignation agreement before the adoption of the strike-out decision of 20   October 2015, which could have had a decisive effect on the admissibility of the case and the grounds for acceptance of the parties’ friendly settlement agreement (see paragraphs 16 and 23 above), the Court finds that there are exceptional circumstances justifying the restoration of the application to the list of cases. 25.     The Court further reiterates that any conduct of an applicant that is manifestly contrary to the purpose of the right of individual application as provided for in the Convention and impedes the proper functioning of the Court or the proper conduct of the proceedings before it constitutes an abuse of the right of application within the meaning of Article 35 § 3 (a) of the Convention (see, for instance,   Felix Guţu v. the Republic of Moldova , no.   13112/07, § 28, 20 October 2020, with further references). This provision, in its relevant part, provides as follows: “3.     The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: (a)     the application is ... an abuse of the right of individual application ...” 26.     The Court can reject an application as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see   Gross v.   Switzerland [GC], no. 67810/10, § 28, ECHR 2014; see also Gărdean and S.C. Grup 95 SA v. Romania (revision), no. 25787/04, § 11, 30 April 2013). 27.     In this connection, it should be noted that in accordance with Rules   44   C §   1 and 47 § 6 (47 § 7 as amended) of the Rules of Court, the applicant has a duty to inform the Court of all facts relevant to the examination of the application and, under Rule 44 A of the Rules of Court, has a duty to cooperate with the Court with a view to the proper administration of justice ( Gărdean and S.C. Grup 95 SA , cited above, §   20 in   fine , and Vidu and Others v.   Romania (revision), no. 9835/02, §§   25 and   27, 17   January 2017). 28 .     In the present case, the Court reiterates that the applicant company has not responded to the Government’s request and that the essential facts relied on are uncontested. In these circumstances, there is no reason to doubt that the applicant company had full knowledge of the key facts of the case and in particular of the fact that its claim had been assigned to another company even before it lodged its application with the Court (see paragraph 10 above). The Court has already noted above the critical importance of the information concerning the assignation agreement for the examination of the applicant company’s complaint, notably in relation to the existence of its victim status under Article 34 of the Convention (see paragraphs 18-22 above) and the broader reasons of public policy ( ordre public ), which might have precluded the Court from accepting the friendly settlement agreement between the parties and thus from striking the case out of its list of cases (see paragraphs   23-24 above). 29 .     The Court finds that the applicant company’s conduct, not disclosing the information in question to the Court, touched upon the very core of the case. No explanation has been provided for the failure to disclose that information.   The Court therefore concludes that the applicant company knowingly based its application on incomplete and misleading information and thus abused its right of individual application. 30.     The Court stresses that its findings in the present case have no bearing on the outcome of the domestic criminal proceedings or any other pending or potential proceedings relating to the friendly settlement in the present case. In other words, the Court’s findings in this decision cannot be interpreted as facts for the purpose of such proceedings. 31.     Accordingly, the applicant company’s application is declared inadmissible under Article 35 § 3 (a) of the Convention. For these reasons, the Court, unanimously, Decides to restore the application to its list of cases; Declares the application inadmissible. Done in English and notified in writing on 18 July 2024.     Hasan Bakırcı   Arnfinn Bårdsen   Registrar   President