FIFTH SECTION    CASE OF VERITAS v. UKRAINE (Application no. 39157/02)        JUDGMENT   STRASBOURG 13 November 2008 FINAL 13/02/2009  This judgment may be subject to editorial revision.In the case of Veritas v. Ukraine,The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Rait Maruste, President, Karel Jungwiert, Volodymyr Butkevych, Renate Jaeger, Mark Villiger, Mirjana Lazarova Trajkovska, Zdravka Kalaydjieva, judges,and Claudia Westerdiek, Section Registrar,Having deliberated in private on 14 October 2008,Delivers the following judgment, which was adopted on that date:PROCEDURE1. The case originated in an application (no. 39157/02) 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 legal entity “Veritas” (“the applicant company”), on 30 September 2002.2. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev, from the Ministry of Justice.3. On 11 September 2007 the Court decided to give notice of the application to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).THE FACTSI. THE CIRCUMSTANCES OF THE CASE4. The applicant company is registered in Dnipropetrovs’k.5. On 22 August 2001 the applicant company lodged a claim with the Dnipropetrovs’k Regional Commercial Court against the Commercial Bank P. (“the Bank”) seeking compensation for damages because of the latter’s failure to withdraw a sum of money from the account of a third party, S., in the framework of enforcement proceedings against S.6. By decision of 13 September 2001, the court found against the applicant company. On 6 November 2001 the Dnipropetrovs’k Regional Commercial Court of Appeal dismissed an appeal lodged by the applicant company and upheld the decision of the first-instance court.7. By decision of 18 February 2002, the Higher Commercial Court, on the applicant company’s appeal, quashed the decisions of the lower courts and found for the applicant company.8. On 4 June 2002 the Supreme Court of Ukraine, upon appeal by the Bank, quashed the resolution of the Higher Commercial Court on the ground that that court’s findings had been unfounded and erroneous, and upheld the decisions of the first-instance and the appellate courts.II. RELEVANT DOMESTIC LAW1. Constitution of Ukraine of 19969. The relevant provisions read as follows:Article 6“State power in Ukraine is exercised on the principles of its division into legislative, executive and judicial power.Bodies of legislative, executive and judicial power exercise their authority within the limits established by this Constitution and in accordance with the laws of Ukraine.”Article 124“Justice in Ukraine is administered exclusively by the courts...The jurisdiction of the courts extends to all legal relations that arise in the State.Judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction...”Article 125“In Ukraine the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation.The Supreme Court of Ukraine is the highest judicial body in the system of courts of general jurisdiction...”Article 147“The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction in Ukraine.The Constitutional Court of Ukraine decides on issues of conformity of laws and other legal acts with the Constitution of Ukraine, and provides the official interpretation of the Constitution of Ukraine and the laws of Ukraine.”2. Code of Commercial Procedure10. Article 111-18 of the Code of Commercial Procedure (at the material time) provided as follows:Chapter XII-2Review of judicial decisions of the Higher Commercial Court of Ukraine by the Supreme Court of UkraineArticle 111-18The jurisdiction of the Supreme Court of Ukraine in the course of a cassation review of the resolutions of the Higher Commercial Court of Ukraine“The Supreme Court of Ukraine, following consideration of an appeal in cassation, or a request for review in cassation lodged by the Prosecutor General of Ukraine against a resolution of the Higher Commercial Court of Ukraine, shall be entitled to:1)  leave the resolution unchanged and dismiss the appeal (request);2)  quash the resolution and remit the case to the first-instance court for further consideration;3)  quash the resolution and nullify the proceedings in the case.”11. Other relevant domestic law is summarised in the case of Sokurenko and Strygun (see Sokurenko and Strygun v. Ukraine, nos. 29458/04 and 29465/04, §§ 10-12, 20 July 2006).THE LAWI. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION12. The applicant company complained that the Supreme Court had exceeded its competence in upholding the decision of the appellate court and, therefore, could not be considered “a tribunal established by law”. In its view, the Supreme Court had violated the principle of equality of arms by depriving the applicant company of a possibility to present its arguments anew had the case be remitted for fresh consideration to the lower courts. Moreover, it contended that the Supreme Court had erroneously applied substantive law and had not been impartial and independent. It relied on 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. Admissibility13. The Court notes that the issue whether in the circumstances of the case the Supreme Court could be considered “a tribunal established by law” is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.14. The Court has examined the remainder of the applicant company’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of were within its competence, they do not disclose any appearance of a violation of Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.B. Merits1. Submissions of the partiesa. Government15. The Government referred to the dissenting opinions in the case of Sokurenko and Strygun v. Ukraine (cited above). They maintained that the scope of the requirement “established by law” was more limited than a requirement that a tribunal should act “in accordance with the law” or in a manner “prescribed by law”. In their view, the term could not be understood to mean that a tribunal, in order to be considered “established by law”, should also comply with all national requirements concerning the carrying out of its functions.16. The Government further maintained that according to the Court’s case-law a court could not be considered as a tribunal in the sense of the Convention if it was deprived of the competence “to resolve a dispute” as required by Article 6 § 1.17. The Government considered that, as the highest judicial body in the system of courts of general jurisdiction, the Supreme Court of Ukraine was competent to assess all judicial decisions in a commercial case and to express its agreement or disagreement with each court decision in the case. Therefore, in the applicant company’s case the Supreme Court, having found that the Higher Commercial Court had erred in its decision, had no other choice under the law than to remit the case for fresh consideration to the court of first instance, irrespective of whether the decision of the first-instance court was correct or not.18. The Government considered that upholding the first-instance court’s decision in the present case was in substance equivalent to remitting the case for fresh consideration, but was time-saving. Therefore, the Supreme Court had also avoided unnecessary delay in the proceedings. Furthermore, according to the Government a fresh consideration of the case in such circumstances would be a pure formalism, given than the commercial courts of all instances would have to follow the position of the Supreme Court as to correct resolution of the dispute, which it would express in its decision on the remittal of the case under Article 111-18 of the Code of Commercial Procedure.19. The Government maintained that the Code of Commercial Procedure did not provide the Supreme Court directly with the wherewithal to decide the applicant company’s case, that is to say, to fulfil its primary function which was inherent in the very notion of a "tribunal" under the Convention.20. The Government stressed that in delivering the decision in the applicant company’s case the Supreme Court, therefore, having applied the provisions of the Convention and the rule of law principle, had filled a formal gap in the legislation. It had acted as a tribunal established by law whose task was to decide a dispute.

Article of the Convention at issue: Article 6
Outcome: violation