DOVGAL v. UKRAINE
Inadmissible
Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger
The applicant, Ms Tetyana Mykhaylivna Dovgal, is a Ukrainian national who was born in 1953 and lives in Kryvyy Rig, Dnipropetrovsk region, Ukraine. The Ukrainian Government (“the Government”) were represented by their Agent, Mr Y. Zaytsev. The facts of the case, as submitted by the parties, may be summarised as follows. By decree of 21 May 1981 the Kryvyy Rig City Executive Committee ordered all the buildings in the specified area, including the applicant’s house, to be demolished. The Committee also transferred the titles to the plots of land under these buildings and adjacent thereto to the Pivdenny Girnycho-Zbagachuvalny Kombinat (“the Company”), a publicly owned company at that time. In the period between April and June 2002 the Company, which by that time had been reorganised into a joint stock company 25.78% of whose shares belonged to the State (ВАТ “Південний гірничо-збагачувальний комбінат”), implemented the above decree and demolished the applicant’s house. On 27 March 2003 the Dnipropetrovsk Commercial Court (Господарський суд Дніпропетровської області, “the Commercial Court”) instituted insolvency proceedings against the Company. By a judgment of 2 April 2004 the Inguletsky District Court of Kryvyy Rig (Інгулецький районний суд м. Кривого Рогу; “the District Court”) allowed the applicant’s claim for damages and awarded her the total amount of 46,532.02 Ukrainian hryvnias (UAH) (about 7,259.07 euros (EUR) at the material time), to be paid by the Company. By order of 27 May 2004 the Cabinet of Ministers of Ukraine approved the privatisation of the Company and instructed the relevant authorities to make the necessary arrangements. By August 2004, according to the Government, the State’s share in the Company had been sold. On 10 September 2004, after the judgment had become final, the State Bailiffs’ Service instituted enforcement proceedings. On 16 October 2004 the State Bailiffs’ Service suspended the enforcement proceedings in view of the insolvency proceedings pending against the Company before the Commercial Court. Subsequently the insolvency proceedings against the Company were terminated and reopened, and the State Bailiffs’ Service resumed and suspended the enforcement proceedings accordingly. Apparently, the applicant did not try to register as a creditor in any of the insolvency proceedings against the debtor Company. On 16 November 2006 the Commercial Court adopted an amicable agreement between the creditors and the Company, under which the creditors’ claims against the Company, including the claims of those who were not registered in the insolvency proceedings but sought payment of the debts within the enforcement proceedings only, were deemed to be paid off. Accordingly, the insolvency proceedings against the Company were terminated. On 12 March 2007 the State Bailiffs’ Service terminated the enforcement proceedings relating to the judgment in the applicant’s favour, referring to the amicable agreement adopted on 16 November 2006. On 18 April 2007 the applicant challenged the bailiff’s decision of 12 March 2007 before the District Court. On 6 July 2007 the court dismissed her complaint as time-barred. The applicant did not appeal against the latter decision. On 29 January 2008 the Commercial Court terminated the amicable agreement because of the Company’s failure to comply with its terms, and resumed the insolvency proceedings against the Company. On 29 February 2008 the applicant instituted proceedings in the District Court against the State Bailiffs’ Service, challenging the decision of 12 March 2007. On 6 June 2008 the court dismissed the applicant’s claim because of the applicant’s repeated failure to appear before the court. The applicant did not appeal against the latter decision. On 26 January 2009 the State Bailiffs’ Service, having resumed the enforcement proceedings, suspended them in view of the insolvency proceedings against the Company. The judgment of 2 April 2004 remains unenforced. The relevant domestic law on enforcement proceedings is summarised in the case of Ponomaryov v. Ukraine (no. 3236/03, §§ 29-31, 3 April 2008). The relevant provisions of the Restoration of Solvency and Declaration of Bankruptcy Act of 14 May 1992 are summarised in the case of Trykhlib v. Ukraine (no. 58312/00, §§ 25-27, 20 September 2005). In addition, the Act defines a creditor as “a legal or natural person who has a pecuniary claim against the debtor which is corroborated by documents in accordance with the prescribed procedure”.