CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 7 novembre 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 } .s9F46BEC9 { margin-top:14pt; margin-bottom:12pt; text-align:justify; font-size:14pt } .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 } .sBD1BE8CC { width:33.89pt; display:inline-block } .s556D3942 { width:152.1pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 13501/21 FINANSOVA KOMPANIYA PRIMINVEST, TOV against Ukraine   The European Court of Human Rights (Fifth Section), sitting on 7   November 2024 as a Committee composed of:   Andreas Zünd , President ,   Kateřina Šimáčková,   Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   13501/21) lodged with the Court against Ukraine under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 February 2021 by a   Ukrainian company, Finansova Kompaniya Priminvest, TOV (“the   applicant company”), based in Kyiv and represented by, among others, Mr   A.   Golubenko, a lawyer practising in Greece; the decision to give notice of the complaints under Article   6   §   1 of the Convention regarding the applicant company’s inability to recover allegedly overpaid court fees to the Ukrainian Government (“the Government”), represented by their Agent, Ms M.   Sokorenko, of the Ministry of Justice, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1 .     The application concerns the refusal of the Kyiv Commercial Court (“the first-instance court”) to reimburse an allegedly overpaid amount in respect of court fees to the applicant company in proceedings relating to a   claim it brought seeking the direct recovery of the equivalent of approximately 560,000 euros (EUR) that had been deposited with a private bank – which at the material time was administered by the State Deposit Guarantee Fund (“the State Fund”) and eventually was declared insolvent – and also challenging certain decisions taken by the State Fund in that connection. The applicant company complained of a violation of Article   6   §   1 on that account. 2 .     The claim was brought in 2018. In a ruling of 24   October 2018, against which there was no right of appeal, the first-instance court instructed the   applicant company to pay court fees calculated on the basis of the rates applicable in respect of both pecuniary and non-pecuniary claims in accordance with sections   3, 4 and 6 of the Court Fee Act. Accordingly, the   applicant company paid the equivalent of approximately EUR 8,200 in court fees. 3 .     In a judgment of 25   February 2019, the first-instance court dismissed the claim, mainly because the deposited money had to be recovered by using the relevant insolvency procedure. 4.     The applicant company appealed and paid the equivalent of approximately EUR   12,300 in court fees based on the rates applicable to both pecuniary and non-pecuniary claims. 5.     On 11   February 2020 the North Commercial Court of Appeal (“the   appellate court”) quashed the first-instance judgment and allowed the   applicant company’s claim in full. 6 .     On different dates in 2020 the defendant parties – the bank and the State Fund – lodged separate cassation appeals with the Supreme Court. They paid the equivalent of approximately EUR   200 each in court fees based on the rates applicable only to non-pecuniary claims. In its observations in reply to the   cassation appeals, the applicant company argued that the defendant parties should have been required to pay court fees based on the rates applicable to both pecuniary and non-pecuniary claims (the equivalent of approximately EUR   16,400 each). 7 .     On 1   September 2020 the Supreme Court allowed the defendant parties’ cassation appeals, quashed the appellate court’s judgment of 11   February 2020 and upheld the first-instance court’s judgment of 25   February 2019. It did not address the applicant company’s argument regarding court fees. 8.     On 1   October 2020, relying on section 7 of the Court Fee Act of 8 July 2011, the applicant company requested that the first-instance court reimburse the equivalent of approximately EUR   8,100, which the applicant company alleged that it had overpaid in respect of the first-instance court fees (see   paragraph 2 above). It argued that the Supreme Court’s decision of 1   September 2020 allowing the defendant parties’ cassation appeal (see   paragraph 7 above) demonstrated that the case concerned claims of a   non-pecuniary nature and that, consequently, the court fees in respect of the   first-instance proceedings should have been based on the rates applicable for non-pecuniary claims only (the equivalent of approximately EUR   100). 9 .     On 7   October 2020 the first-instance court dismissed the request, finding that the court fees the applicant company had paid in 2018 had been calculated in accordance with the relevant regulations. 10.     On 15   October 2020 the applicant company asked the Supreme Court to give an additional decision regarding the court fees. 11 .     On 22   October 2020 the Supreme Court refused the request, having noted that the applicant company’s claims, which it had definitively ruled on in its decision of 1   September 2020 (see paragraph 7 above), were of a non-pecuniary nature. 12 .     By a decision of 17   December 2020, the appellate court, referring to the Supreme Court’s findings in its decision of 22   October 2020, allowed a   request made by the applicant company on 16   November 2020 for reimbursement of the equivalent of approximately EUR   12,000 in court fees in respect of the appellate proceedings. 13.     Subsequently, the applicant company tried to challenge the first-instance court’s decision of 7   October 2020. Its appeals were not examined on the merits as that decision was not subject to appeal. THE COURT’S ASSESSMENT 14.     The applicant company complained under Article   6   §   1 that the first-instance court’s refusal to reimburse the amount allegedly overpaid in court fees had been based on inconsistent decisions of the courts and had resulted in a violation of its right of access to a court. 15.     The Government contended that no unlawful or disproportionate limitation had been imposed on the applicant company’s right of access to a   court in the domestic proceedings. Furthermore, the applicant company had failed to challenge the first-instance court’s instructions regarding the court fees set out in its decision of 24   October 2018. According to the Government, the applicant company had had an opportunity to do so when lodging its appeal against the first-instance court’s judgment of 25   February 2019 (see   paragraphs 2 and 3 above). 16.     The Court reiterates that an ex post facto refusal to reimburse costs incurred by an applicant in judicial proceedings may constitute a restriction of the applicant’s right of access to a court (see, for instance, Černius and Rinkevičius v. Lithuania , nos. 73579/17 and   14620/18, §§ 68-74, 18 February 2020). 17.     Even assuming that the refusal to reimburse the amount allegedly overpaid in court fees to the applicant company in the present case amounted to a restriction of its right of access to a court, the Court considers that it was neither unlawful nor disproportionate. 18.     In particular, the first-instance court’s decisions of 24   October 2018 and 7   October 2020 demonstrate that the calculation of the court fees using the rates applicable to pecuniary and non-pecuniary claims had a sufficient basis in domestic law (see paragraphs 2 and 9 above). 19.     It is true that, after those decisions had been delivered and the   applicant company’s claims had been decided on the merits, the Supreme Court and the appellate court held, in their decisions of 22   October and 12   December 2020 respectively, that the claims were of a non-pecuniary nature and that consequently different rates had to be applied for the   calculation of the court fees in the appellate and cassation proceedings (see   paragraphs 2, 7, 9, 11 and 12 above). However, the decisions of 22   October and 12   December 2020 did not render the first-instance court’s decisions of 24   October 2018 and 7   October 2020 unlawful or otherwise deprive those decisions of their legal effect. Nor did the domestic law compel the first-instance court to allow the applicant company’s request for partial reimbursement of the relevant court fees in the circumstances. 20.     Even though the domestic courts ultimately differed on the question of the characterisation of the applicant company’s claims, a fact which impacted the calculation of the court fees due, there is no evidence that the   first-instance court’s decisions of 24   October 2018 and 7   October 2020 were based on a reading of the relevant procedural regulations that was unforeseeable from the applicant company’s point of view, or on profound or long-standing differences in the relevant case-law. In this connection, the   Court reiterates that Article 6   §   1 does not guarantee an acquired right to consistency in case-law and that it is not its role to resolve disputes over the interpretation of domestic law (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 116, 29 November 2016, and Zubac v.   Croatia [GC], no. 40160/12, § 81, 5 April 2018, with further references). 21.     The Court further notes that the imposition of the fees in question clearly pursued the legitimate aims of ensuring the efficient administration of justice and deterring unfounded claims (see, for instance, Stankov v. Bulgaria , no. 68490/01, § 57, 12 July 2007, and Harrison McKee v. Hungary , no.   22840/07, § 27, 3 June 2014). 22.     While the sum of the fees imposed was relatively high, it was not disproportionate as regards the sum which the applicant company had claimed in the proceedings (see paragraphs 1 and 2 above). The applicant company did not argue, either in the domestic proceedings or before the   Court, that a disproportionate burden had been placed on it given the   amount of the fees and its financial situation. 23.     The applicant company had ample access at all stages of the proceedings to the courts at three levels of jurisdiction and had the opportunity to defend its claims, which were decided on the merits in a binding judgment. The case file contains no indication that the applicant company suffered any undue disadvantage in the exercise of its procedural rights because of the fact that the fees which the defendant parties had to pay in respect of their cassation appeals were based on the less onerous rates applicable regarding non-pecuniary claims (see paragraph 6 above). 24.     In the light of the foregoing, the applicant company’s complaints do not disclose any appearance of a violation of its right of access to a court or of any other rights guaranteed by Article   6   §   1. 25.     It follows that the application must be rejected as manifestly ill ‑ founded in accordance with Article   35 §§   3 (a)   and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 28 November 2024.     Martina Keller   Andreas Zünd   Deputy Registrar   President