MAKSMA proti Ukrajině

FIFTH SECTION

DECISION

Application no. 25495/03
by MAKSMA
against Ukraine

The European Court of Human Rights (Fifth Section), sitting on 13 November 2006 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr K. Jungwiert,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr M. Villiger, judges,
and Ms C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 23 June 2003,

Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

The applicant, “Maksma” Ltd., is a subsidiary of the Ukrainian-Polish joint enterprise “AB Imex” Ltd., an entity with foreign investments that was registered in 2001 in the town of Ivankiv, the Kyiv region. It is represented before the Court by Ms Maria Kudelya, a lawyer practising in the town of Brovary, the Kyiv region. The respondent Government were represented by their Agent, Mr Y. Zaytsev.

The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 19 November 1998 the applicant and its founder (a citizen of Poland) instituted proceedings in the Lutsk City Court against the Volyn Regional Customs, seeking a finding that as a foreign investor and an enterprise with foreign investments, as envisaged by the Law “on foreign investments” of 13 March 1992, it had a right to privileges with regard to taxation and customs duties.

On 18 January 1999 the court allowed the applicant’s claims and found that it had a right to privileges with regard to taxation and customs duties payments for a period of 10 years, as envisaged by the aforementioned Law “on foreign investments”.

On 4 March 1999 the Volyn Regional Court quashed this decision and remitted the case for a fresh consideration.

On 15 June 1999 the Lutsk City Court refused to consider the applicant’s claims, considering that they fell outside its jurisdiction.

On 3 November 1999 the civil cases chamber of the Supreme Court, composed of three judges, heard the protest of the Deputy President of the Supreme Court, quashed the rulings of 4 March and 15 June 1999 and upheld the judgment of 18 January 1999 given in the applicant’s favour.

On 1 December 2000 the Lutsk City Court gave an interpretation of the judgment of 18 January 1999, finding that it was applicable to the applicant notwithstanding the adoption of new legislation. In particular, the court held that the judgment was final and therefore binding.

On 12 October 2001 the Supreme Court upheld the ruling of the Lutsk City Court of 1 December 2000 and the resolution of the Presidium of the Volyn Regional Court of 25 June 2001 which had rejected the request of the Volyn Regional Customs and the Volyn Regional Tax Administration to review the judgment of 18 January 1999 in view of the changes introduced to the legislation on matters of foreign investments.

In June 2002 the applicant instituted proceedings in the Kyiv Commercial Court against the Regional Customs Administration, seeking to have declared unlawful its refusals of 6 November and 19 December 2001, and of 8, 11 and 13 February 2002, to admit goods to the customs territory of Ukraine. It also requested that the Central Energy Customs Service undertake to conduct customs inspections of goods in accordance with the previous contract concluded by it on 9 October 2001. The applicant also argued that the refusals were unlawful because they had resulted in the applicant losing the tax privileges given to it as a foreign investor, so that it had to pay customs duties for its export / import transactions.

On 1 July 2002 the Kyiv Commercial Court found for the applicant. In particular, it referred to the judgment of the Lutsk City Court of 18 January 1999 which had found the applicant eligible for tax and customs privileges as a foreign investor. On 9 August 2002 the Kyiv Commercial Court of Appeal upheld this judgment.

On 25 December 2002 the Higher Commercial Court quashed the judgment of 1 July 2002 and the decision of 9 August 2002 and rejected the applicant’s claims. In particular, it found that the judgment of 18 January 1999 was not applicable to the proceedings in the case as the legislation had changed after that judgment had been adopted.

On 6 March 2003 the Supreme Court decided not to initiate cassation proceedings in the case as it found no inconsistencies in the application of the domestic substantive law.

COMPLAINTS

The applicant complained about the outcome of the proceedings. It alleged that the domestic courts had erred in the assessment of the facts and in application of the law. It also alleged that Article 6 § 1 and Article 1 of Protocol No.1 to the Convention were infringed.

It further points out that the Higher Commercial Court on 25 December 2002 and the Supreme Court on 6 March 2003 had failed to respect the final and binding judgment of the Lutsk City Court of 18 January 1999 and thus infringed the applicant’s right to a fair hearing by an independent and impartial tribunal established by law and as a result unlawfully interfered with its property rights. The applicant further alleged that the domestic courts had arbitrarily disregarded the final judgment of 18 January 1999 and thus deprived it of all its useful effect.

THE LAW

Notice of the application was given to the Government on 7 November 2005. The Government submitted their observations on the admissibility and merits of the applicant’s complaint on 10 February 2006. The applicant has failed to submit observations in reply. Moreover, he has failed to respond to the communications from the Registry of the Court, the last of which was a registered letter dated 3 July 2006 warning the applicant of the possibility that his case might be struck out of the Court’s list if he failed to respond. The applicant’s representative received this letter on 13 July 2006. No reply was received to it.

Having regard to Article 37 § 1 (a) of the Convention, the Court concludes that the applicant does not intend to pursue the application. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the further examination of this case. Accordingly, the application of Article 29 § 3 of the Convention to the case should be discontinued.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Claudia Westerdiek Peer Lorenzen
Registrar President