CASE OF CHUYKINA v. UKRAINE
Violations of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste
4. The applicant was born in 1949 and lives in the town of Kamenka-Dniprovska, Ukraine. 5. On 5 February 1998 the applicant instituted proceedings for compensation in the Energodar Local Court (“the Energodar Court”) against a private company, G., for selling her a defective television set. 6. On 18 June 1998 the case was transferred to the Kamenka-Dniprovskiy Local Court (“the Kamenka-Dniprovskiy Court”). 7. On 28 July 1998 the latter court found against the applicant. On 8 September 1998 the Zaporizhzhya Regional Court (“the Zaporizhzya Court”) quashed that judgment and remitted the case to the first-instance court for fresh consideration. 8. On 19 October 1998 the Kamenka-Dniprovskiy Court found for the applicant. On 24 November 1998 the Zaporizhzhya Court quashed that judgment and remitted the case to the Kamenka-Dniprovskiy Court for fresh consideration. 9. On 19 May 1999, following a decision by the President of the Zaporizhzhya Court, the case was transferred to the Vasylivskiy Local Court (“the Vasylivskiy Court”). 10. On 6 September 1999 the case was transferred to the Energodar Court, which, in a hearing on 26 January 2000, left the applicant's claim unexamined. The applicant appealed. 11. On 14 March 2000 the Zaporizhzhya Court quashed the decision of 26 January 2000 and remitted the case to the Kamenka-Dniprovsky Court for fresh consideration. 12. On 13 November 2000 the case was transferred to the Vasylivskiy Court, which on 1 February 2001 left the applicant's claim unexamined. On 6 March 2001 the Zaporizhzhya Court quashed that decision and remitted the case for fresh consideration to the same court. 13. On 13 December 2001 the Vasylivskiy Court left the applicant's claim unexamined. On 6 June 2002 the Zaporizhzhya Court upheld that decision. On 13 March 2003 the Supreme Court quashed the decisions of the lower courts and remitted the case for fresh consideration to the first-instance court. 14. On 12 February 2004 the Energodar Court allowed the applicant's claim in part, awarding her 17,614 Ukrainian hryvnias (UAH) in compensation for pecuniary and non-pecuniary damage. 15. On 28 April 2004 the Zaporizhzhya Court upheld that judgment with minor amendments. 16. The applicant did not appeal in cassation to the Supreme Court. 17. In 2004 insolvency proceedings were initiated against the defendant company. 18. The judgment of 12 February 2004 remains unenforced. 19. On 26 May 2004 the Bailiffs' Department of the Energodar Town Department of Justice (Відділ Державної виконавчої служби міського управління юстиції в Запорізькій області – “the Bailiffs' Department”) initiated enforcement proceedings in respect of the judgment of 12 February 2004. 20. The Bailiffs' Department did not enforce the judgment and the applicant complained to the Energodar Court, which, by judgments of 17 January, 23 June and 25 October 2005 and 27 April 2006, found the Bailiffs' Department liable for the failure to enforce the judgment of 12 February 2004. 21. Following the reorganisation of the State mechanism for enforcing judgments, the State Bailiffs' Departments were closed down without legal successors. The State Bailiffs' Services were created as the new enforcement bodies (see Relevant Domestic Law below). 22. In July 2006 the applicant instituted proceedings against the newly created Energodar Bailiffs' Service (Державна виконавча служба у м. Енергодар – “the Bailiffs' Service”) in the Energodar Court, seeking compensation for the damage caused as a result of the failure to enforce the judgment. On 16 October 2006 the court ordered that the Bailiffs' Department, which no longer performed any functions but remained in the State register of legal entities, should be joined as a co-defendant in the case. 23. On 10 November 2006 the Energodar Court granted the applicant's claims in part and awarded her UAH 3,660 in compensation for non-pecuniary damage caused by the non-enforcement of the judgment, to be paid by the Bailiffs' Department. It dismissed all her claims against the newly created Bailiffs' Service as it had not been found liable for the non-enforcement of the judgment in the applicant's favour. 24. On 16 January 2007, the Bailiffs' Department was finally liquidated and removed from the State register of legal entities. 25. On 1 March 2007 the Zaporizhzhya Court examined the applicant's appeal and found that the first-instance court had made a correct assessment of the legal relationship between the parties. It further quashed the judgment in the part awarding the applicant UAH 3,660 against the Bailiffs' Department and nullified the proceedings in this part on the ground that the Bailiffs' Department had been liquidated without a legal successor. 26. On 25 June 2007 the Supreme Court rejected a request by the applicant for leave to appeal in cassation. 27. The relevant provision of the Constitution provides as follows: Article 55 “...Everyone is guaranteed the right to challenge in court the decisions, actions or omissions of bodies of State power, bodies of local self-government, officials and officers...” 28. The relevant provisions of the Code provide as follows Article 205. Grounds for nullification of the proceedings “1. A court shall, by its ruling, nullify the proceedings, if: ... 7) a legal person that was a party to the proceedings has been liquidated.” 29. In 2005 the Bailiffs' Service was restructured under Decree No. 320 of the Cabinet of Ministers of 23 April 2005 and the Act of Parliament of 23 June 2005 “on introducing amendments to the State Bailiffs' Service Act and the Enforcement Proceedings Act”. The above government decree specified that new bailiffs' services were to be created in place of the bailiffs' departments of the Ministry of Justice. 30. In implementing this restructuring, the Ministry of Justice issued Order No 1482 of 19 August 2005, and this was followed by orders of the regional departments of justice. The Zaporizhzhya Regional Department of Justice issued such an order on 25 August 2005 (Order No. 521/15). Under the orders the bailiffs' departments were liquidated without legal successors and the new bailiffs' services were created in their stead as new legal persons.