POKUTNAYA v. RUSSIA
Inadmissible
Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev
The applicant, Ms Praskovya Ivanovna Pokutnaya, is a Russian national who was born in 1950 and lives in Proletarskiy, a village in the Belgorod Region. The Russian Government (“the Government”) were represented by Mr P. Laptev, the former Representative of the Russian Federation at the European Court of Human Rights. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a shareholder of a private joint-stock road-building company “Rakityanskaya DSPMK” (“Ракитянская ДСПМК”). On an unspecified date in 2001 she applied to a court to oblige the company to redeem her 54 nominal shares. On 15 October 2001 the Commercial Court of the Belgorod Region declared the company insolvent. On 18 February 2002 an insolvency administrator, Mr N., was appointed for the insolvency proceedings. On 15 April 2002 the Rakityanskiy District Court obliged the company to redeem the 54 nominal shares held in the company by the applicant. On 2 July 2002 the Belgorod Regional Court upheld the judgment and it became final and enforceable. On 5 August 2002 the applicant sought enforcement in court. On 13 August 2002 the court sent the writ of execution to the local Bailiff’s Office. On 16 August 2002 the bailiff served the writ of execution on Mr A. instead of Mr N., the administrator. However, Mr A. forwarded the writ to Mr N. without delay and the writ was received by Mr. N. on 22 August 2002. As the shares were not redeemed by the company, the applicant complained about the bailiffs’ failure to act to the court and to the local Prosecutor’s Office. On 26 November 2002 the applicant’s complaints were upheld by the Rakityanskiy District Court. The court reproached the bailiff for negligence in serving the writ on the wrong person and stated that as the applicant had lodged her claim with the court before the company went insolvent, the enforcement proceedings should have been carried out by the bailiff within the civil procedure in accordance with the Law on Enforcement Procedure (Закон РФ “Об исполнительном производстве”). On 2 June 2003 the same court again upheld an identical complaint lodged by the applicant and ordered the bailiff to pursue the enforcement proceedings. On 4 August 2003 the Commercial Court of the Belgorod Region closed the insolvency proceedings, having declared the creditors’ registered claims paid off. The company had not redeemed the applicant’s shares as she was fifth in the line of creditors and the company’s assets did not suffice. On 16 October 2003 the Presidium of the Belgorod Regional Court quashed the decision of 2 June 2003 and discontinued the proceedings. The court found that the instruction contained in the operative part of the judgment of 15 April 2002 provided for service of the writ of execution on the company’s insolvency administrator for enforcement. This requirement had been fully complied with by the bailiff. The Presidium of the Belgorod Regional Court also found that there had been procedural flaws, noting, inter alia, that the Rakityanskiy District Court had disregarded the previous decision concerning the same complaint and pointed out that it had failed to indicate the legal grounds for upholding the applicant’s complaint. Under section 9 of the Federal Law on Enforcement Proceedings of 21 July 1997, a bailiff must enforce a judgment within a period of two months. The Russian Law on Enforcement Proceedings (no. 119-ФЗ of 21 July 1997) designates the court bailiffs’ service as the authority charged with enforcement of court decisions (section 3 § 1). Court judgments can also be executed by tax authorities, banks, financial institutions, other organisations, State officials and individuals – all of these are not considered to be the enforcement authorities (section 5).