Absence of outside influence
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine 1996 91. The relevant provisions can be found in Miroshnik v. Ukraine, no. 75804/01, § 30, 27 November 2008 ( independence of the judiciary ), and in Seryavin and Others v. Ukraine, no. 4909/04, § 22, 10 February 2011 ( protection of property). B. Code of Arbitration Procedure 1991 (renamed into the Code of Commercial Procedure by amendments of 21 June 2001 effective since 5 July 2001 ) 92. The relevant provisions, as worded before the amendments of 21 June 2001 (effective since 5 July 2001), are quoted in Ukraine -Tyumen v. Ukraine, no. 22603/02, § 20, 22 November 2007. 93. Chapter XII-2 (in force since 5 July 2001) can be found in MPP Golub v. Ukraine (dec.), no. 6778/05, ECHR 2005 ‑ XI. 94. Under Article 112, final judicial decisions may be reviewed on the basis of newly - discovered circumstances, where those circumstances were of significant importance for the case and could not have been known to the party concerned. According to Article 114, the examination of a request for the review of a case on the basis of newly- discovered circumstances should result in a court judgment (ruling or resolution) upholding the judgment (ruling or resolution) sought to be reviewed, modifying it or quashing it. The relevant decision may be challenged under standard procedure. C. Code of Arbitration Procedure (Amendments) Act of 21 June 2001 ( in force from 5 July 2001) 95. Under paragraph 4 of the Final and Transitional Provisions, a judgment not challenged by the time of the entry into force of the Act before the president of an arbitration court may be appealed against to the commercial court of appeal or cassation instance in compliance with the procedures envisaged by the Code of Commercial Procedure. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL NO. 1 96. The applicant company complained about the length and alleged unfairness of the debt recovery proceedings initiated by it against LyNOS (named “the Lysychansk Oil Refinery ” at the time) back in 1993 and continuing through 2004. It submitted, in particular, that the courts had breached the principle of res judicata by reconsidering the amount of the debt due to it after that amount had been established by the final judicial decision of 2 July 1998. It also contended that the courts dealing with the case could not be regarded impartial or independent given the intense pressure from high-ranking State officials. The applicant company relied on Article 6 of the Convention, which reads, insofar as relevant, as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by an independent and impartial tribunal established by law.” 97. The applicant company further complained under Article 1 of Protocol No. 1 to the Convention of a violation of its property rights. It complained, in particular, that it had been unable to recover in full the 375,000 tons of oil it had supplied to the State-owned oil refinery in the early 1990s, even though the domestic courts had confirmed its claim in that regard. Article 1 of Protocol No. 1 relied on by the applicant company reads as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Admissibility 1. Compatibility ratione temporis 98. The Government argued that the application was incompatible ratione temporis insofar as it concerned events prior to the entry into force of the Convention in respect of Ukraine on 11 September 1997. 99. While agreeing with the Government ’ s view as to the Court ’ s temporal jurisdiction, the applicant company maintained that facts occurring before that date also had to be taken into consideration. 100. The Court notes that, indeed, as it has made it clear in many cases against Ukraine, it is competent to examine the facts of an application for their compatibility with the Convention only in so far as they occurred after 11 September 1997 (see, for example, Kozak v. Ukraine (dec.), no. 21291/02, ECHR 2002 ‑ X). 101. The present case concerns facts occurring both before and after that date. The Court considers that the applicant company ’ s complaints, insofar as they pertain to the period prior to 11 September 1997, are beyond the Court ’ s jurisdiction ratione temporis. It therefore upholds the Government ’ s objection and declares this part of the application inadmissible under Article 35 §§ 3 (a) and 4 of the Convention. 102. At the same time, the Court may and will have regard to events prior to ratification inasmuch as they could be considered to have created a situation extending beyond that date or may be relevant for the understanding of facts occurring after that date (see Broniowski v. Poland (dec.) [GC], no. 31443/96, §§ 74-77, ECHR 2002-X). 2. Applicability of Article 6 § 1 of the Convention 103. The Government further submitted that the applicant company ’ s complaint about the allegedly unjustified review of the HAC ’ s ruling of 2 July 1998 (establishing the amount of the debt owed to it by LyNOS) should be declared inadmissible within the meaning of Article 35 § 3 of the Convention because Article 6 § 1 did not apply to that review as such. They contended that the ruling in question could not be regarded as a final judicial decision determining the applicant company ’ s civil rights or obligations. The Government noted in this connection that, at the relevant time, the insolvency proceedings brought by the applicant company against LyNOS had still been underway, and that the applicant company ’ s civil rights and obligations had therefore yet to be determined. 104. The applicant company contested that argument. 105. The Court notes that the complaint raises questions of fact and law which are sufficiently complex not to be susceptible of being resolved at the admissibility stage. It considers that the determination of this complaint, including the question, raised by the Government, of the applicability of Article 6 § 1 of the Convention, depends on an examination of the merits (see and compare with Esa Jussila v. Finland (dec.), no. 73053/01, 9 November 2004, and Ferrazzini v. Italy [GC], no. 44759/98, § 18, ECHR 2001 ‑ VII). 106. Accordingly, the Court joins this objection of the Government to the merits of the complaint. 3. Compliance with the six-month time-limit 107. The Government also submitted that the application had been introduced out of the six-month time-limit. According to them, the six- month period for the purposes of Article 35 § 1 of the Convention had started running on 26 December 2000 – the date when the HAC ’ s Review Panel had quashed the HAC ’ s earlier rejection of LyNOS ’ s application for review of the ruling of 2 July 1998 establishing the amount of its debt to the applicant company on the basis of newly - discovered circumstances and had remitted that request for fresh examination. 108. The applicant company disagreed. It noted that the above-mentioned application lodged by LyNOS had been allowed by the HAC ’ s judgment of 27 June 2001, which the applicant company had challenged before the higher courts in compliance with commercial procedure legislation. It maintained that the final domestic decision had therefore been the ruling of the Supreme Court of 26 December 2002. Accordingly, the applicant company considered that its application, which had been lodged on 23 June 2003, had been brought in compliance with the six-month time-limit. 109. The Court notes at the outset that, although the Government raised this objection in respect of the general admissibility of the application, it is in fact confined to challenging the applicant company ’ s compliance with the six-month time-limit only insofar as it concerns the review of the HAC ’ s ruling of 2 July 1998 on the basis of newly-discovered circumstances. 110. In its case-law, the Court has viewed the quashing of a final judgment as an instantaneous act, which does not create a continuing situation, even if it entails the reopening of proceedings (see, for well ‑ established authority, Voloshchuk v. Ukraine (dec.), no. 51394/99, 14 October 2003, and Sardin v. Russia (dec.), no. 69582/01, ECHR 2004 ‑ II). In the absence of an effective remedy, the Court has considered the very act of quashing of a final judgment to trigger the start of the six ‑ month time-limit for lodging a related complaint with the Court (ibid. ). 111. Turning to the present case, the Court discerns particular circumstances which make it distinguishable from the cases cited above, as well as from the numerous other comparable cases (see, for example, The Mrevli Foundation v. Georgia (dec.), no. 25491/04, 5 May 2009; Nosov v. Russia (dec.), no. 30877/02, 20 October 2005; and Sitokhova v. Russia (dec.), no. 55609/00, 2 September 2004). 112. Certain particularities of the relevant legislation governing Ukrainian commercial arbitration procedure in force at the material time are noteworthy. Thus, unlike in civil procedure – where the courts are required to deliver a separate decision granting or rejecting a request for the reopening of a case on the basis of newly- discovered circumstances, such a decision not being amenable to appeal (for the relevant legal provisions and an analysis of them see the Voloshchuk decision, cited above) – the arbitration procedure in Ukraine does not envisage such a separate procedural decision. Following the examination of a request for reopening of a case on the basis of newly- discovered circumstances, a court has the following options: to uphold the judgment ( decision ) which the claimant has sought to have reviewed; to quash it; or to amend it. The court ’ s decision in the matter may then be challenged in accordance with standard procedures (see paragraph 94 above). 113. The Court notes that, in the present case, LyNOS ’ s application for review of the HAC ’ s ruling of 2 July 1998 on the basis of newly - discovered circumstances was initially unsuccessful. Thus, on 19 September 2000 the HAC found that there had in fact been no newly-discovered circumstances. It did not, however, reject the application for review, but rather upheld the challenged ruling of 2 July 1998 (see paragraph 69 above). Strictly speaking, the HAC had already examined the merits of the case by doing so. Later on, that decision was quashed and the application for review was remitted for fresh examination (see paragraph 72 above). As a result, on 27 June 2001 the HAC, acting as a court of first instance, changed its ruling of 2 July 1998 by a decision which the applicant company was able to and did challenge before the higher courts (see paragraphs 76-78, 80, 82-83 and 85 above). 114. Bearing in mind the above, the Court considers that the date upon which the final ruling of 2 July 1998 was quashed, triggering the running of the six-month time-limit, would not have been apparent for the applicant company under the circumstances: technically, the period could have commenced as early as on 19 September 2000 (when the initial ruling was upheld); or on 26 December 2000 – as submitted by the Government – when the decision of 19 September 2000 was quashed; on 27 June 2001 – when the HAC modified the ruling of 2 July 1998 in the light of the newly- discovered circumstances referred to by LyNOS; or, finally, on 26 December 2002 – when the Supreme Court upheld the aforementioned judgment of 27 June 2001 by a final ruling. 115. The Court will examine all these possibilities. 116. As to the failure to complain to the Court about the review of the ruling of 2 July 1998 resulting in its being upheld by the decision of 19 September 2000, the applicant company can hardly be reproached for this, given that the outcome was in its favour. 117. Furthermore, contrary to the Government ’ s assertions, the outcome of the application for review was yet to be determined following the decision of 26 December 2000 remitting the application for fresh examination. Accordingly, the ruling of 2 July 1998 cannot be regarded as having been quashed on that date. 118. The Court also observes that on 27 June 2001 the HAC, sitting as a court of first instance, modified the ruling of 2 July 1998, to the detriment of the applicant company, in allowing LyNOS ’ s application for review. It is noteworthy that: it was the only judicial decision regarding the application for review that the applicant company found itself confronted with; the decision was on the merits of the case; and it was amenable to an ordinary appeal, which the applicant company resorted to. The applicant company could therefore have hardly been expected to calculate the six-month time-limit for bringing its case to the Court from 27 June 2001. 119. Lastly, the Court notes that, following the legislative amendments which entered in force on 5 July 2001, the applicant company ’ s appeal was examined by the Donetsk Commercial Court of Appeal (see paragraphs 82 and 95 above). Subsequently, the applicant company appealed in cassation to the HCC (formerly the HAC) and later sought leave from the Supreme Court to bring a further cassation appeal (see paragraphs 83 and 85 above). According to the Court ’ s case-law, a second appeal in cassation to the Supreme Court was, after 5 July 2001, an effective domestic remedy in commercial proceedings in Ukraine (see the MPP Golub decision, cited above). 120. The Court therefore concludes that, in the specific circumstances of the present case, the applicant company cannot be reproached for calculating the six-month time-limit for complaining to the Court of the allegedly unlawful quashing of the HAC ’ s final ruling of 2 July 1998 from the date of the Supreme Court ’ s decision on the case of 26 December 2002. 121. Given that the application was lodged with the Court within six months thereafter, on 23 June 2003, the Court also dismisses this objection of the Government. 4. Otherwise as to the admissibility 122. The Court further notes that this part of the application, insofar as it falls within the Court ’ s temporal jurisdiction (see paragraphs 101 and 102 above), is neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. It should therefore be declared admissible. B. Merits 1. Alleged violations of Article 6 § 1 of the Convention (a) Independence and impartiality of the courts 123. The applicant company maintained that the courts dealing with the insolvency proceedings against LyNOS had not been independent or impartial, given the strong political pressure and the enduring control over the proceedings exerted by various State authorities, which had had a strong interest in their outcome. It referred, in particular, to the correspondence between the high- ranking officials and the courts dealing with the case ( or their senior officials ), on the one hand, and between LyNOS and those authorities, on the other hand. 124. The Government disagreed, referring to the guarantees of the independence and impartiality of the judiciary enshrined in the Ukrainian Constitution and other laws. While the Government admitted that there had been attempts to influence the proceedings, they insisted that there was no proof that those attempts had in fact had any impact. In support of that submission, the Government referred to the fact that, although the State authorities had sought the termination of the insolvency proceedings since 1998, those proceedings had continued until 2004. 125. The Court reiterates that in order to determine whether a tribunal can be considered “independent” for the purposes of Article 6 § 1 of the Convention, regard must be had, inter alia, to the following criteria: the manner of appointment of its members and their term of office; the existence of safeguards against outside pressures; and whether the tribunal presents an appearance of independence (see, among many other references, Findlay v. the United Kingdom, 25 February 1997, § 73, Reports 1997 ‑ I ). 126. As regards the question of “impartiality” for the purposes of Article 6 § 1, it is well established in the Court ’ s case-law that there are two aspects to this requirement, a subjective and an objective one. First, the tribunal must be subjectively impartial, that is, no member of the tribunal should hold any personal prejudice or bias. Personal impartiality is presumed, unless there is evidence to the contrary. Secondly, the tribunal must also be impartial from an objective viewpoint – that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see Kiiskinen v. Finland (dec.), no. 26323/95, ECHR 1999 ‑ V (extracts)). More specifically, it must be determined, under the objective test, whether, quite apart from the judges ’ personal conduct, there are ascertainable facts which may raise doubts as to their impartiality (see Kleyn and Others v. the Netherlands [GC], nos. 39343/98 et seq., § 191, ECHR 2003 ‑ VI). 127. In deciding whether in a given case there is a legitimate reason to fear that these requirements are not met, the standpoint of a party is important but not decisive. What is decisive is whether this fear can be held to be objectively justified (see Kleyn and Others, cited above, § 194). 128. The Court observes that the concepts of independence and objective impartiality are closely linked (see Findlay, cited above, § 73). They are particularly difficult to dissociate, where – like in the present case – the arguments advanced by the applicant to contest both the independence and impartiality of the court are based on the same factual considerations (see also Kleyn and Others, cited above, § 194, and Salov v. Ukraine, no. 65518/01, § 82, ECHR 2005 ‑ VIII (extracts)). The Court will therefore examine both these issues together. 129. The Court notes that – as confirmed by documentary evidence – various State authorities did indeed intervene in the judicial proceedings in question on a number of occasions. Moreover, those interventions took place in an open and persistent manner and were often expressly solicited by the applicant company ’ s adversary. 130. Thus, the case file contains copies of LyNOS ’ s requests to the First Deputy Speaker and the Speaker of Parliament, as well as the Prime Minister and the President of Ukraine, for intervention in the court proceedings, as well as letters from those officials to the HAC ’ s President with instructions to quash or reconsider the court ’ s earlier decisions, to terminate the proceedings, or simply enclosing the relevant request made by LyNOS (see paragraphs 28-29, 34-35, 42, 51, 58, 60 and 74 above). The Court also notes that the HAC ’ s President responded to some of those letters with reports on the status of the proceedings and with explanations of the measures taken within those proceedings (see paragraphs 43, 56 and 63 above). Furthermore, the Court does not lose sight of the fact that LyNOS explicitly thanked the President of Ukraine for his interventions, which it considered to be successful – noting that “the positive results [were] self ‑ explanatory” (see paragraph 73 above). 131. Although the notion of the separation of powers between the executive and the judiciary has assumed growing importance in the Court ’ s case-law (see Stafford v. the United Kingdom [GC], no. 46295/99, § 78, ECHR 2002-IV, and Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, § 46, 30 November 2010 ), neither Article 6 nor any other provision of the Convention requires States to comply with any theoretical constitutional concepts regarding the permissible limits of the interaction between the two branches. The Court must clarify whether in each particular case the requirements of the Convention are met (see Pabla Ky v. Finland, no. 47221/99, § 29, ECHR 2004 ‑ V). 132. It is not the Court ’ s task to analyse the soundness of the relevant constitutional arrangements in Ukraine. The sole question it is faced with is whether, in the circumstances of this case, the domestic courts had the requisite “appearance” of independence, or the requisite “objective” impartiality (see McGonnell v. the United Kingdom, no. 28488/95, § 51, ECHR 2000 ‑ II, and Kleyn and Others, cited above, § 193). 133. The Court has already condemned, in the strongest terms, attempts by non-judicial authorities to intervene in court proceedings, considering them to be ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see Sovtransavto Holding v. Ukraine, no. 48553/99, § 80, ECHR 2002-VII, and Agrotehservis v. Ukraine (dec.), no. 62608/00, 19 October 2004 ). 134. Similarly to its approach outlined in the Sovtransavto Holding case, cited above (§ 80), the Court finds it to be of no relevance whether the impugned interventions actually affected the course of the proceedings. Coming from the executive and legislative branches of the State, they reveal a lack of respect for the judicial office itself and justify the applicant company ’ s fears as to the independence and impartiality of the tribunals. 135. The Court is mindful of the fact that the proceedings in question concerned the insolvency of what was at the time the country ’ s biggest oil refinery and in which the State was the major shareholder (see paragraphs 6 and 45 above). It is therefore natural that they attracted the close attention of the State authorities at the highest level. Those authorities, however, did not confine themselves to passive monitoring of the developments in the court case in the context of their extrajudicial efforts to overcome LyNOS ’ s crisis, but blatantly interfered in the court proceedings, which is unacceptable. 136. The Court emphasises in this connection that the scope of the State ’ s obligation to ensure a trial by an “independent and impartial tribunal ” under Article 6 § 1 of the Convention is not limited to the judiciary. It also implies obligations on the executive, the legislature and any other State authority, regardless of its level, to respect and abide by the judgments and decisions of the courts, even when they do not agree with them. Thus, the State ’ s respecting the authority of the courts is an indispensable precondition for public confidence in the courts and, more broadly, for the rule of law. For this to be the case, the constitutional safeguards of the independence and impartiality of the judiciary do not suffice. They must be effectively incorporated into everyday administrative attitudes and practices. 137. The Court further observes that judicial independence and impartiality, as viewed from an objective perspective, demand that individual judges be free from undue influence – not only from outside the judiciary, but also from within. This internal judicial independence requires that judges be free from directives or pressures from fellow judges or those who have administrative responsibilities in a court such as, for example, the president of the court. The absence of sufficient safeguards ensuring the independence of judges within the judiciary and, in particular, vis-à-vis their judicial superiors, may lead the Court to conclude that an applicant ’ s doubts as to the independence and impartiality of a court may be said to have been objectively justified (see Parlov-Tkalčić v. Croatia, no. 24810/06, § 86, 22 December 2009, with further references). 138. Turning back to the present case, the Court notes that in September 2000 the HAC ’ s President gave direct instructions to his two deputies to reconsider the court ’ s ruling of 19 September 2000 (by which it had rejected LyNOS ’ s application for the revision of the amount of its debt to the applicant company). 139. The Court considers such influence by a judicial superior on the course of the proceedings to be contrary to the principle of internal judicial independence as outlined above. 140. In sum, the Court concludes that, in the circumstances, the domestic courts could not be regarded independent or objectively impartial. 141. There has accordingly been a violation of Article 6 § 1 of the Convention in that regard. (b) Compliance with the principle of legal certainty 142. The applicant company contended that by overturning the final ruling of 2 July 1998 establishing the amount of arrears due to it by LyNOS, the courts had acted in breach of the principle of legal certainty inherent in the notion of fair trial under Article 6 § 1 of the Convention. 143. Referring to their objection as to applicability of Article 6 § 1 to the situation complained of, the Government did not submit any further observations on the merits of this complaint. 144. The Court reiterates that legal certainty, which is one of the fundamental aspects of the rule of law, requires that where courts have finally determined an issue, their ruling should not be called into question (see Brumărescu v. Romania [GC], no. 28342/95, § 61, ECHR 1999-VII). 145. As regards the present case, the Court notes that, in the absence of any appeal to the Review Panel – which could have been submitted by either party within two months of the pronouncement of the HAC ’ s ruling (see the reference in paragraph 92 above) and which was considered, before 5 April 2001, to be an appeal to the court of final instance for the purposes of exhaustion of ordinary domestic remedies in arbitration proceedings (see Sovtransavto Holding v. Ukraine (dec.), no. 48553/99, 27 September 2001, and MPP Petrol v. Ukraine (dec.), no. 62605/00, 25 March 2008) – the HAC ’ s ruling of 2 July 1998 was a final judicial determination of the amount of the outstanding arrears owed by LyNOS to the applicant company. The fact that the modalities of its repayment were yet to be defined, at that stage, within the ongoing insolvency proceedings, has no bearing on this finding. 146. Proceeding from the standpoint that a court whose lack of independence and impartiality has been established cannot in principle guarantee a fair trial, the Court has occasionally chosen not to examine complaints regarding the fairness of the relevant proceedings (see Çiraklar v. Turkey, 28 October 1998, §§ 44-45, Reports 1998 ‑ VII). Having regard to the circumstances of each particular case before it, the Court has, however, at times found it necessary to undertake a separate examination of the fairness issue under Article 6 of the Convention, along with that regarding the courts ’ independence and impartiality (see, for example, Salov, cited above, §§ 78-98, and Bochan v. Ukraine, no. 7577/02, §§ 60-85, 3 May 2007). 147. The Court considers that in the present case the applicant company ’ s complaint of the alleged breach of the principle of legal certainty raises a serious issue warranting a separate examination under Article 6 § 1 of the Convention. 148. The principle of legal certainty implies that no party is entitled to seek review of a final and binding judgment merely for the purpose of obtaining a rehearing and a fresh determination of the case. Review by higher courts should not be treated as an appeal in disguise, and the mere possibility of there being two views on the subject is not grounds for re-examination. A departure from that principle is justified only when made necessary by circumstances of a substantial and compelling character (see Ryabykh v. Russia, no. 52854/99, § 52, ECHR 2003 ‑ IX). 149. Turning to the present case, the Court notes that, while the HAC ’ s ruling of 2 July 1998 determining the amount of the outstanding arrears of LyNOS vis-à-vis the applicant company was not challenged and became final, later in July 1998 the Government created a taskforce of representatives of various high-level State authorities for clarifying the reasons for the company ’ s indebtedness. In its report of 31 August 1998 that taskforce stated a need for verification of the amount of arrears. Subsequently, on 14 September 1998, the First Deputy Prime Minister instructed certain ministries and State agencies to undertake an audit with a view to verifying the amount of the debt. As a result, in its report of 15 April 2000, the Lugansk Regional Audit Department concluded that the HAC ’ s findings in its ruling of 2 July 1998 concerning the outstanding debt owed to the applicant company had been wrong and in contradiction of the applicable legislation, and that LyNOS ’ s debt was in fact equal to UAH 36,401,894, instead of UAH 216,150,544 as had been established on 2 July 1998. LyNOS relied on that conclusion as a newly-discovered circumstance warranting revision by the courts of the previously established amount of debt, and its application for review was granted. As result, the courts reconsidered and reduced the finally established debt of UAH 216,150,544 to UAH 97,406,920 and subsequently to UAH 90,983,077 (see, in particular, paragraphs 41 and 77 above). 150. These facts indicate that the non-judicial State authorities called into question the judicial decision of 2 July 1998 even though it had become final, revised it as they saw fit and criticised its findings as wrong and unlawful. Moreover, the non-judicial revision of the debt amount was then referred to as a newly-discovered circumstance, on the basis of which the courts reconsidered, to the applicant company ’ s disadvantage, the amount of the arrears owed to it by LyNOS. 151. The Court therefore concludes that the reopening of the finally settled legal issue of the amount of arrears in the present case was based merely on the State authorities ’ disagreement with it, this being disguised as a newly-discovered circumstance. It considers that this amounted to a flagrant breach of the principle of legal certainty enshrined in Article 6 § 1 of the Convention. 152. Accordingly, the Court rejects the Government ’ s objection as to applicability of Article 6 § 1 of the Convention to this complaint, which was previously joined to the merits (see paragraph 106 above), and finds that that there has been a violation of this provision. (c) Length of proceedings 153. The applicant company maintained that the proceedings initiated by it against LyNOS had lasted for an unreasonably long time. 154. The Government did not consider the overall length of the proceedings to be unreasonable, given the complexity of the case and the applicant company ’ s own allegedly uncooperative conduct. 155. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case; the conduct of the applicant and the relevant authorities; and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 156. The period to be taken into consideration in the present case is from 11 September 1997 (the date of the entry into force of the Convention in respect of Ukraine – see paragraphs 100-102 above) to 25 November 2004 (the ruling of the Supreme Court finalising the bankruptcy proceedings against LyNOS by upholding its friendly settlement with the creditors ’ committee ). The proceedings therefore lasted for over seven years. 157. The Court notes that the case was of importance for the applicant company, with a significant pecuniary interest being at stake. It was, however, factually and legally complex. At the same time the Court observes that, on the one hand, the major delay (from July 1999 to 16 April 2002) can be explained mainly by the authorities ’ efforts to have the amount of the debt owed to the applicant company revised, despite a final judicial decision in that regard. On the other hand, no delays in the proceedings were attributable to the applicant company. 158. The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues of the length of proceedings (see Frydlender, cited above). 159. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 160. There has accordingly been a breach of Article 6 § 1 of the Convention in this regard too. 2. Alleged violations of Article 1 of Protocol No. 1 161. The applicant company contended that, due to the fault of the State, it had been unable to recover in full the 375,000 tons of oil it had supplied to the State-owned oil refinery in the early 1990s, even though the domestic courts had confirmed its claim in that regard by their final decisions of 5 March 1993, 18 November 1994 and 2 July 1998. 162. The applicant company referred, in particular, to the revision of the amount of arrears after it had already been established by the HAC ’ s final ruling of 2 July 1998, and its subsequent considerable reduction (from UAH 216, 150,544 to UAH 90,700,000). 163. It next submitted that the ban on selling shares in LyNOS had been lifted by mere decisions of the HAC ’ s President on 10 September 1998 and 12 April 2000, and that the State ’ s shares had eventually been sold to a foreign investor without any safeguards that LyNOS ’ s outstanding debt to the applicant company would ever be repaid. 164. Furthermore, the applicant company contended that it had been forced, in 2003, into what it considered to be a discriminatory friendly settlement resulting in the transfer to it of shares owned by LyNOS which were neither transferable nor free from encumbrances nor eligible for dividends, instead of the money or oil products which it would have received had its rights not been violated. 165. The Government maintained that there had been no interference with the applicant company ’ s rights under Article 1 of Protocol No. 1, as, until the completion of the insolvency proceedings against LyNOS, it could not have been regarded as having any possessions or enforceable property claims. 166. The Court reiterates that the existence of a debt confirmed by a binding and enforceable judgment furnishes the judgment beneficiary with a “legitimate expectation” that the debt will be paid and constitutes the beneficiary ’ s “possessions” within the meaning of Article 1 of Protocol No. 1. Quashing such a judgment therefore amounts to an interference with the right to peaceful enjoyment of possessions (see, among other references, Brumărescu, cited above, § 74, and Ponomaryov v. Ukraine, no. 3236/03, § 43, 3 April 2008). 167. The Court observes that the debt of LyNOS, a State-owned company at the time, to the applicant company was confirmed by the final judicial ruling of 2 July 1998 in the amount of UAH 216,150,544. Accordingly, that sum of money constituted the applicant company ’ s possessions, and its subsequent reduction, as a result of the reopening of the case on the basis of newly-discovered circumstances, amounted to an interference with its right to peaceful enjoyment of those possessions. 168. As the Court has found in the context of Article 6 § 1 of the Convention, the quashing of the HAC ’ s enforceable ruling of 2 July 1998 was contrary to the principle of legal certainty (see paragraphs 1 48 -1 49 above). It frustrated the applicant company ’ s reliance on a binding judicial decision and deprived it of an opportunity to receive the money it had legitimately expected to receive. 169. The Court therefore concludes that, in these circumstances, the revision of the amount of debt due to the applicant company under the HAC ’ s final and binding ruling of 2 July 1998 placed an excessive burden on the applicant company and was therefore incompatible with Article 1 of Protocol No. 1. 170. In a broader context, the Court notes that the insolvency proceedings initiated by the applicant company against LyNOS had a direct impact on the property interests of the former. Given the Court ’ s findings that the courts dealing with those proceedings lacked the requisite independence and objective impartiality owing to the wholly unwarranted interventions by the State ’ s legislative and executive authorities (see paragraphs 1 36-137 above), the Court considers that no “fair balance” was struck between the demands of the public interest and the need to protect the applicant company ’ s right to the peaceful enjoyment of its possessions (see and compare with the judgment in the Sovtransavto Holding case, cited above, §§ 97-98). 171. The above considerations suffice for the Court to find a violation of Article 1 of Protocol No. 1, without the need to examine the applicant company ’ s further arguments in support of its complaint under this heading. 172. Accordingly, there has been a violation of Article 1 of Protocol No. 1. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 173. The applicant company also complained under Article 6 § 1 of the Convention of irregularities in the case file concerning the insolvency proceedings and of the destruction of files regarding the 1993-1994 proceedings. It further complained, relying on Articles 6 § 1 and 13 of the Convention and Article 2 of Protocol No. 7 to the Convention, that it had been deprived of access to court by the fact that on 26 December 2002 the Supreme Court, sitting as a five-judge bench, had rejected its request for leave to appeal in cassation. It referred in that regard to the requirement of the applicable procedural legislation to have the consent of at least five judges for proceedings to be started and the Supreme Court ’ s failure to specify the total number of judges on the bench. 174. In the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant Article 35 §§ 3 (a) and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 175. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 176. The applicant company submitted two alternative claims in respect of pecuniary damage – 179,119,430.67 euros (EUR) or EUR 143,873,981.28 – with its calculations being based, respectively, on United States and Ukrainian interest and inflation rates. It also claimed EUR 250,000 in respect of non-pecuniary damage and EUR 253,878.95 in legal costs and expenses. 177. The Government contested those claims. 178. The Court considers that, in the circumstances of the case, the issue of the application of Article 41 of the Convention is not ready for decision. Consequently, it decides to reserve it and to fix the subsequent procedure in the light of the possibility of an agreement between the respondent State and the applicant company (Rule 75 § § 1 and 4 of the Rules of Court).
The Court held that there had been a violation of Article 6 § 1 of the Convention as regards the lack of independence and impartiality of the domestic courts. It noted in particular that, as confirmed by documentary evidence, various Ukrainian authorities had intervened in the judicial proceedings on a number of occasions. The Court also recalled that it had already condemned in the strongest terms attempts by non-judicial authorities to intervene in court proceedings, considering them to be incompatible with the notion of an “independent and impartial tribunal”. Admittedly, given the fact that the proceedings in the present case had concerned the insolvency of what was, at the time, the country’s biggest oil refinery and in which the State was the major shareholder, it was natural that the proceedings had attracted the State authorities’ close attention. It was, however, unacceptable that the authorities had not confined themselves to passive monitoring of the court proceedings but that they had blatantly interfered. The Court emphasised that the scope of the State’s obligation to ensure a trial by an independent and impartial tribunal was not limited to the judiciary, but also implied obligations on any other State authority to respect and abide by the judgments and decisions of the courts. Judicial independence further demanded that individual judges be free from undue influence, including from within the judiciary. The fact that, in the present case, the president of the Higher Arbitration Court had given direct instructions to his deputies to reconsider the court’s ruling by which it had rejected the application of the biggest oil refinery in Ukraine for the revision of the amount of its debt had therefore been contrary to the principle of internal judicial independence.