CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 19 octobre 2004

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display:inline-block } .s91F1BE8E { width:231.82pt; display:inline-block } .sDEA786DA { width:210.67pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 62608/00 by AGROTEHSERVIS against Ukraine The European Court of Human Rights (Second Section), sitting on 19   October 2004 as a Chamber composed of:   Mr   J.-P. Costa , President ,   Mr   L. Loucaides ,   Mr   C. Bîrsan ,   Mr   K. Jungwiert ,   Mr   V. Butkevych ,   Mrs   W. Thomassen ,   Mrs   A. Mularoni, judges , and Mr T.L. Early , Deputy Section Registrar , Having regard to the above application lodged on 30 June 2000, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having regard to the third party comments submitted on behalf of the Republic of Latvia, Having deliberated, decides as follows: THE FACTS The applicant company, Agrotehservis, is a Latvian-Ukrainian joint venture based in Riga, with legal personality under Latvian law. It was represented before the Court by Mr A. Sidko, its president. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Brief summary of the facts In 1996 the applicant company (hereinafter “the applicant”) instituted proceedings against the Kherson Refinery for failure to honour its contractual obligations. These proceedings resulted in a judgment on 10   April   1998 favourable to the applicant. In 1998-1999, the General Prosecutor's Office lodged several extraordinary appeals, which resulted in the quashing of that judgment in January 2000. Several months later the majority share in the Refinery was bought by a Kazakh company. In 2002, following changes in legislation, the court decision in the applicant's favour was reinstated by the Supreme Court of Ukraine. Since then the applicant has been unsuccessfully seeking to have the decision enforced and amended. In 2002-2003 the decision in the applicant's favour was twice challenged in the course of review proceedings initiated by the defendant. The final outcome of both proceedings was favourable to the applicant. The decision in the applicant's favour remains unenforced. 2.     Detailed summary (a)     Origin of the dispute and original court proceedings On 13   May   1992, under the intergovernmental agreement of 21   April   1992 between the Republic of Latvia and Ukraine, the applicant concluded a contract with the Kherson Refinery, which was later transformed into the “Khersonnaftopererobka” Joint-Stock Company (hereinafter – “the Refinery”). Under the contract the applicant was to supply oil to the Refinery and the latter had to provide it with oil products in return. On 10   December   1996 the applicant lodged a claim with the Highest Arbitration Court of Ukraine ( Вищий арбітражний суд України , hereinafter – “the HAC”) against the Refinery for failure to honour the contract. On 7   February   1997 the HAC rejected the applicant's claim as time-barred. The applicant did not appeal against this decision. On 2   September   1997 the panel of the Highest Arbitration Court for the review of judgments, orders and decisions ( судова колегія з перегляду рішень, ухвал, постанов Вищого арбітражного суду України , hereinafter – “the Review Panel”) reviewed the decision of 7   February   1997 on its own motion. The latter decision was quashed and the case was remitted for a fresh consideration. On 9   October   1997 the HAC rejected the applicant's claim as time-barred. On 26   November   1997 the applicant appealed against this decision under the supervisory review procedure to the Review Panel. On 30   January   1998, the Panel quashed the decision of 9   October   1997 and remitted the case for a fresh consideration. On 10   April   1998 the HAC found for the applicant. The court established that in June 1992 the applicant had supplied 60,000 tonnes of oil to the defendant and was to receive 17,852 tonnes of oil products from the defendant in return. As the oil products had not been supplied, the HAC awarded them to the applicant. The court also awarded the applicant UAH 10,000 in legal costs. In August 1998 the applicant lodged a claim with the HAC to change the manner of enforcement of the judgment of 10   April   1998. On 26   August   1998 the court allowed the claim and ordered the Refinery to pay the applicant UAH 7,011,186 [1] in lieu of the 17,852 tonnes of oil products. (b)     Extraordinary review proceedings In April 1998 the director of the Refinery and the head of local State administration wrote letters to Mr V. Pustovoytenko, the then Prime Minister of Ukraine, asking him to protect the interests of the State enterprise and to give instructions for quashing the judgment of 10   April   1998. On 2   June   1998 the General Prosecutor's Office of Ukraine ( Генеральна Прокуратура України , hereinafter - “the GPO”) lodged an appeal for supervisory review with the Review Panel of the HAC seeking to quash the judgment of 10   April   1998. The GPO maintained that the applicant had lodged its original claim outside the time-limit and had not paid a court fee. It further maintained that the HAC had not taken certain documents into account. On 17   July   1998 the Review Panel rejected the appeal as unsubstantiated. On 31   August   1998 the GPO lodged an appeal for supervisory review with the Presidium of the HAC ( президія Вищого арбітражного суду України ) to quash the judgment of 10   April   1998 given in the applicant's favour. The GPO maintained that there was insufficient evidence that the applicant was the owner of the oil which had been supplied to the Refinery in 1992 and that the HAC had wrongly decided that the original claim was not time-barred. On 9   October   1998 Mr O. Tkachenko, the then Speaker of the Ukrainian Parliament ( Verkhovna Rada ), wrote to Mr D. Prityka, the President of the HAC, asking him to intervene to protect the “lawful claims and rights” of the Refinery. On 26   November   1998 the Presidium of the HAC ordered a forensic examination in the framework of the supervisory review proceedings. On 30   December   1998 the experts of the Kiev Scientific and Research Institute of Forensic Examination gave their opinion, confirming the applicant's ownership of the oil supplied to the Refinery in 1992. On 6   January   1999 (11   January – according to the Government) the Presidium of the HAC rejected the GPO's appeal as unsubstantiated and upheld the previous decisions of the HAC in the case. The same day the Presidium of the HAC made a further ruling ( окрема ухвала ), informing the Cabinet of Ministers about the violation of legislation by the Refinery and the unsatisfactory work of the regional control and revision department ( контрольно-ревізійне управління ). On 18   May   1999 the GPO lodged an appeal with the HAC for a review of the case in the light of newly discovered circumstances. The GPO maintained in particular that, at the time of the original proceedings, the courts had been unaware of the results of a forensic examination of 6   May   1999, and therefore the case should be reviewed. On 15   June   1999 the HAC rejected this appeal as unsubstantiated. The court noted that the latest forensic examination confirmed the conclusions of the court in its decision of 10   April   1998 and were mentioned in the court's decision of 6   January   1999. On 26   August   1999 the GPO lodged an appeal for review in the light of newly discovered circumstances with the Review Panel of the HAC. The GPO submitted the same arguments as it had in its appeal of 18   May   1999. On 4   October   1999 the Review Panel of the HAC rejected the appeal as unsubstantiated and upheld the decision of 15   June   1999. On 21   December   1999 the GPO lodged an appeal for supervisory review with the Presidium of the HAC to quash the judgment of 10   April   1998 in the applicant's favour. In support of its appeal, the GPO maintained that the court had erroneously rejected their previous appeals and that there was insufficient evidence to establish ownership of the oil by the applicant. On 28   January   2000 the Presidium of the HAC allowed the extraordinary appeal and quashed the judgment of 10   April   1998 in the applicant's favour. The court found that the applicant had not provided sufficient evidence of its ownership of the 60,000 tonnes of oil supplied to the Refinery in 1992, and that its original claim was time-barred. In January 2000 the applicant requested the General Prosecutor's Office of the Republic of Latvia ( Latvijas Republikas Ģenerālprokuratūra, hereinafter the “GPOL”) to institute criminal proceedings for the misappropriation of its property (oil and money) in Ukraine. On 28   February   2000, the GPOL instituted criminal proceedings for the large-scale misappropriation of property. On 13   March   2000 the GPOL sent letters to the HAC and the GPO of Ukraine informing them that, in the course of the above criminal proceedings, the investigation had disclosed evidence that had not been available to the Ukrainian courts at the time of the supervisory review proceedings. The Latvian GPO requested the President of the HAC to examine the said evidence and to consider the possibility of reviewing the decision of 28   January   2000 at the Plenary of the HAC ( пленум Вищого арбітражного суду України ). On 17   March   2000 the applicant also requested the President of the HAC to review the decision of 28   January   2000 at the Plenary of the HAC. By letter of 26   July   2000, the Acting President of the HAC rejected the applicant's request for lack of grounds. On 20   November   2000 the GPOL requested legal assistance from the GPO of Ukraine and asked, in particular, that the Refinery be informed that it was the recognised civil defendant in the criminal case on the misappropriation of the applicant's oil. On 11   December   2000 the GPOL informed the HAC of Ukraine of the developments in the criminal proceedings, and repeatedly asked it to consider the possibility of reviewing its judgment of 28   January   2000. On 28   December   2000 the GPOL informed the GPO of Ukraine about the findings in the criminal proceedings, and requested the GPO of Ukraine to lodge an appeal for supervisory review with the Plenary of the HAC. (c)     Revival of the judgment in the applicant's favour In June 2001 the procedural legislation changed, allowing appeals in cassation to the Supreme Court of Ukraine ( Верховний Суд України ) against the decisions of the HAC (see the relevant domestic law below). On 28   September   2001 (26   October – according to the Government) the applicant lodged an appeal under the new cassation procedure with the Supreme Court of Ukraine against the judgment of 28   January   2000. On 30   October   2001 the applicant further requested the Supreme Court of Ukraine to institute criminal proceedings against the Refinery and the GPO for their role in the challenge to and quashing of the judgment of 10   April   1998 in its favour. The applicant based its request on the findings of the GPOL. On 4   December   2001 the Supreme Court of Ukraine started cassation proceedings in the applicant's case. On 14   December   2001 the Ministry of Foreign Affairs of the Republic of Latvia wrote to the Ministry of Foreign Affairs of Ukraine expressing its concern that the dispute between the applicant and the Refinery was still unresolved, and expressing the hope that the dispute would be resolved in an unbiased manner. On 21   January   2002 the Supreme Court of Ukraine quashed the decision of the Presidium of the HAC of 28   January   2000 and confirmed the validity of the judgment of 10   April   1998 given in the applicant's favour. The court established that the prosecutors had not been competent to lodge the extraordinary appeals in the interests of the Refinery, and quashed all the decisions of the HAC given under the extraordinary review proceedings in 1998-2000. According to the documents submitted by the applicant, on 9   February   2002 the Government of Kazakhstan wrote to the Prime Minister of Ukraine with the information that the “Kazakhoil” State Company had bought 60   % of the Refinery's shares in 2000. At that time the Refinery was not known to have had any outstanding debt to the applicant, and therefore they were surprised by the decision of the Supreme Court of 21   January   2002, which would have a negative impact on the economic activities of the Refinery and the other economic entities involved. The Kazakh Government expressed the hope of “a possibility to provide assistance in obtaining a review by the Supreme Court of Ukraine of this decision in accordance with the procedure established by Ukrainian legislation”. In reply to this letter the Prime Minister of Ukraine wrote as follows: “I have closely studied your letter, in which you express concern about the situation in the Khersonneftepererabotka JSC caused by the decision of the Supreme Court of Ukraine, ordering it to pay 7 million hryvnas to Agrotehservis JV (the Republic of Latvia) in compensation for oil that was allegedly supplied in 1992 ... Upon instructions of the Cabinet of Ministers, the General Prosecutor's Office and the Highest Commercial Court of Ukraine [2] have examined the case-file materials. In the course of this examination new circumstances have been established that are the basis for a review of the decision of the Supreme Court of Ukraine. In this context we believe that the Khersonneftepererabotka JSC should request the Presidium of the Supreme Court of Ukraine to review this case and to suspend enforcement of the decision of the Supreme Court of Ukraine until the additional forensic examination is conducted. The Government of Ukraine is ready to assist in the objective consideration of the impugned situation and confirm its commitment to the agreements ... in the sphere of greater economic co-operation, including oil and gas issues. A concrete example of such relations is the purchase of 60% of the shares in the Kherson Refinery by the “Kazakhoil” national company ...” On 31   May   2002 the GPO of Ukraine informed the applicant that the decision of the Supreme Court of Ukraine of 21   January   2002 was not a basis for instituting criminal proceedings. (d)     Re-opening of the case under the transitional provisions of the Code of Commercial Procedure On 14   June   2002 the Refinery lodged an appeal against the judgment of the HAC of 10   April   1998 with the Odessa Appellate Commercial Court. This appeal was based on the transitional provisions of the Code of Commercial Procedure that, according to the Government, envisaged that the decisions given at first instance by the HAC, if they had not been contested before, could be appealed under the new appellate and cassation procedure (see the relevant domestic law below). On 23 July 2002 the Odessa Appellate Commercial Court started proceedings in the case. On 7 October 2002 it suspended the proceedings and ordered an additional forensic examination of the book-keeping documents, which it received on 18 March 2003. The “appellate” proceedings were resumed and, on 31 March 2003, terminated with the court finding that the Refinery's appeal was time-barred by Article 93 of the Code of Commercial Procedure. On 24 April 2003 the Refinery lodged a cassation appeal with the Highest Commercial Court (hereinafter – the HCC) of Ukraine ( Вищий Господарський суд України ), which it withdrew on 15   May   2003, thus terminating the proceedings. (e)     Review in the light of newly discovered circumstances On 5   May   2003 the Kherson Regional Commercial Court granted the defendant company leave for a review of the decision of 10   April   1998 in the light of newly discovered circumstances. On 21   May   2003 the Kherson Regional Commercial Court quashed the judgment of 10   April   1998 because of newly discovered circumstances and found against the applicant. At the same time the court rejected the Refinery's request for the termination of the enforcement proceedings in the case. On 30   May   2003 the applicant appealed against this decision to the Zaporizhzhya Appellate Commercial Court. On 3   June   2003 the applicant further complained to the HCC about the judge of the Kherson Regional Commercial Court who had reviewed its case. On 28   July   2003 the Zaporizhzhya Appellate Commercial Court quashed the decision of 21   May   2003 and found for the applicant. The court also ordered a new writ of execution to be issued to the applicant pursuant to the ruling of the HAC of 26   August   1998, ordering the payment of money in lieu of oil products. On 8   August   2003 the applicant requested the GPO to institute criminal proceedings against the judge of the Kherson Regional Commercial Court regarding his decision of 21   May   2003, as well as decisions on 13, 14, and 15   August   2003 with respect to enforcement proceedings (see below under sub-heading (f)). On 19   August   2003 the Refinery lodged a cassation appeal with the HCC against the decision of the appellate court of 28   July   2003, which the HCC upheld on 30   October   2003. On 24   November   2003 the Refinery lodged a cassation appeal [3] with the Supreme Court of Ukraine against this decision of the HCC, but on 22   January   2004 a panel of three judges of the Supreme Court of Ukraine refused leave to appeal. (f)     Enforcement proceedings On 1   February   2002 the applicant requested the HCC to change the manner of execution of the decision of 21   January   2001 and to award it UAH 16,548,400 [4] in lieu of the oil products instead of the UAH 7,011,186 [5] , awarded by the judgment of 10   April   1998 and the ruling of 26   August   1998. The HCC forwarded the applicant's request to the Kherson Regional Commercial Court. On 29   March   2002 the Kherson Regional Commercial Court issued a duplicate of the execution writ for UAH 7,011,186. On 5   April   2002 the Refinery appealed. Consequently, the Kherson Regional Commercial Court suspended the proceedings on 9   April   2002. The applicant did not appeal against the suspension, but wrote to the President of the Supreme Court of Ukraine complaining about its unlawfulness. On 16   April   2002 the Odessa Appellate Commercial Court refused to consider the Refinery's appeal as the issue of a duplicate writ of execution was not subject to appeal. On 25   April   2002 the Embassy of the Republic of Latvia wrote a letter to the President of the Supreme Court of Ukraine, asking him to explain the position of the court on the suspension of the proceedings on 9   April   2002 by the Kherson Regional Commercial Court. On 8   May   2002 the Kherson Regional Commercial Court resumed the proceedings regarding the applicant's claim to change the manner of execution of the judgment of 10   April   1998 in its favour. On 13   May   2002 the Refinery lodged another appeal against the ruling of 29   March   2002 on the ground that the original writ of execution had been submitted by the applicant for execution outside the statutory time-limit. On 20   May   2002 the Kherson Regional Commercial Court rejected the applicant's claim for a change in the manner of execution, because on 26   August   1998 the HAC had already made the change in its judgment of 10   April   1998. Although this judgment was subsequently quashed, it was reinstated on 21   January   2002 by the Supreme Court of Ukraine. The court further decided that, given the change in the manner of execution from payment in kind to payment in money, it could not again be changed to a pecuniary payment of a different amount. The court concluded that the applicant's claim was in fact a request to increase the amount awarded by the final judgment. The applicant did not appeal. On 23   May   2002 the applicant requested the Komsomolsky District Bailiffs' Service ( Державна виконавча служба Комсомольського районного управління юстиції м. Херсона ) to start enforcement proceedings. On 27   May   2002 the Odessa Appellate Commercial Court allowed the appeal of 13   May   2002 by the Refinery against the decision of 29   March   2002. By letter of 1   June   2002, the Embassy of Kazakhstan in Ukraine wrote to the President of the Odessa Appellate Commercial Court as follows: “... after the decision of the Supreme Court of Ukraine of 21   January   2002, the Khersonneftepererabotka JSC finds itself in a difficult situation without any possibility to challenge the above decision of the Supreme Court of Ukraine or to protect its rights and legitimate interests. The enterprise is under the threat of the forced execution of a writ of payment for UAH 7,011,186 in favour of Agrotehservis JV that would significantly complicate the economic activities of the Khersonneftepererabotka JSC ... These court proceedings have attracted the attention of the heads of Governments of the two countries ... In a letter from the Prime Minister of Ukraine, Mr A. Pustovoytenko, to the Prime Minister of the Republic of Kazakhstan, Mr I. Tasmagambetov, the Government of Ukraine expressed its readiness to assist the objective examination of the current situation ... With a view to the above, and given that the appeal of Khersonnneftepererabotka JSC will be examined by the Odessa Appellate Commercial Court that you preside, we would request your assistance in an objective examination of this case in order to prevent the unlawful withdrawal of monetary funds from the Refinery.” On 6   June   2002 the Odessa Appellate Commercial Court quashed the decision of 29   March   2002 regarding the duplicate writ, because the applicant had failed to request a renewal of the time-limit fixed for issuing a writ of execution. It remitted the case for a fresh consideration. It also declared the duplicate writ null and void. On 14   June   2002 the applicant requested the Kherson Regional Commercial Court to return the manner of execution to payment in kind, and to issue a writ of execution for the 17,582 tonnes of oil products, together with a seizure order. On 28   June   2002 the applicant informed the court that it had no intention of enforcing the writ for UAH 7,011,186, but would use it as the basis for a new compensation claim for the loss caused by inflation. On 17   June   2002 the applicant requested the President of the Supreme Court to institute criminal proceedings against the Refinery and the lower courts for non-enforcement of the judgment in its favour. On 1   July   2002 the Kherson Regional Commercial Court accepted the applicant's decision not to request a new duplicate of the writ of execution, and terminated proceedings in this part. The court further rejected the applicant's claim to reverse the manner of execution to payment in kind, because there were no circumstances calling for such a change. The applicant did not appeal against this ruling. On 12   July   2002 the enforcement proceedings were terminated following a decision of the Odessa Appellate Commercial Court of 6   June   2002. On 18   July   2002 the applicant complained to the Minister of Justice of Ukraine about the non-enforcement of the judgment in its favour by payment in kind (oil products). On 24   July   2002 the Embassy of the Republic of Latvia in Ukraine wrote a letter to the Minister of Justice of Ukraine, asking him to comment on the actions of the courts which had led to the non-enforcement of the judgment in favour of the applicant. On 27   July   2002 the Ministry of Justice of the Republic of Latvia asked the Ministry of Justice of Ukraine for information about the enforcement proceedings in the applicant's case. On 23   October   2003 the Prime Minister of the Republic of Latvia wrote a letter to the Prime Minister of Ukraine, expressing his hope for the support of the Ukrainian Government in the enforcement of the judgment in the applicant's favour without further delay. On 21   January   2003 the applicant requested the Head of the State Judicial Administration to institute disciplinary proceedings against the judges of the Odessa Appellate Commercial Court and the HCC for violations of the applicable procedural legislation. The next day the applicant lodged a similar request with the Highest Council of Justice. On 7   February   2003 the applicant complained to the President of the Supreme Court of Ukraine about the non-enforcement of that court's decision of 21   January   2002 and the need to take measures against judges of the lower courts for their unlawful actions. On 25   February   2003 the applicant lodged a claim with the Local Court of the Komsomolsky District of Kherson (hereinafter the Komsomolsky Local Court), requesting it to force the defendant to execute the decision of the Supreme Court of Ukraine, and to transfer to it the oil products awarded by the judgment of 10   April   1998. On 28   March   2003 the Komsomolsky Local Court held that it lacked the requisite jurisdiction. On 24   March   2003 the applicant requested the Supreme Court to inform it of the reasons for the alleged violations of its rights guaranteed by the Constitution of Ukraine and the European Convention on Human Rights. By letter of 3   April   2003, the Supreme Court of Ukraine informed the applicant that it was not competent to consider such complaints, its jurisdiction in commercial cases being limited to the consideration of appeals against the HAC's decisions. On 31   March   2003 the applicant requested the HCC to order the first instance court to issue a writ of execution for the decision of 10   April   1998 in respect of the 17,852 tonnes of oil products. This request was transferred to the Kherson Regional Commercial Court which informed the applicant that, by law, the court could not issue a new writ of execution but only a copy of the previous one (i.e. for payment in money). On 13   May   2003 the Kherson Regional Commercial Court started the execution proceedings. On 14   May   2003 it rejected the applicant's claim for a writ of execution for oil products and the next day, on 15   May   2003, it issued a writ of execution for UAH 7,011,186. On 21   May   2003 the applicant requested the HCC to order any local commercial court to issue a writ of execution for payment in kind. It repeated this request on 18   June and 16   July   2003, as well as a request for an order to seize the corresponding quantity of oil products. On 5   August   2003 the Kherson Regional Commercial Court issued a new writ of execution for the payment in money. On 29   August   2003 the Komsomolsky District Bailiffs' Service returned this last writ of execution as it lacked necessary data. On 11   September   2003 the applicant repeated its request to the HCC for a writ of execution in kind. On 12   September   2003 the Kherson Regional Commercial Court amended its decision of 5   August   2003, issuing a new writ of execution for payment in money on 15   September   2003. On 25   October   2003 the applicant lodged a claim with the Kiev Commercial Court against the State of Ukraine seeking UAH 1,276,285,726 in compensation for material and moral damage in its case. On 11   November   2003, the court rejected the claim for lack of jurisdiction On 24   December   2003 the Bailiffs' Service started enforcement proceedings on the basis of the writ of execution of 15   September   2003. On 25   December   2003 the Refinery challenged the enforcement proceedings in the Komsomolsky Local Court and requested the Bailiffs' Service to suspend them. The latter refused this request, whereupon the Refinery lodged another claim with the same court against the head of the Bailiffs' Service. On 29   December   2003 the court found for the Refinery and ordered the suspension of the enforcement proceedings. On 31   December   2003 the Bailiffs' Service followed this order, informing the applicant of the suspension. However, on 15   January   2004 it appealed against the decision of 29   December   2003. On 16   January   2004 the Bailiffs' Service ordered the seizure of the Refinery's funds. The next day this order was cancelled by the Komsomolsky Local Court. The court also prohibited any enforcement action until the court proceedings against the head of the Bailiffs' Service were completed. On 19   January   2004 the Refinery lodged a complaint with the Kherson Regional Commercial Court against the Bailiff's Service with regard to the enforcement proceedings started on 24 December 2003. On 10   February   2003, the court rejected this claim as having been submitted too late. On 27   January   2004 the Komsomolsky Local Court declared the decision of the Bailiffs' Service, to re-open the enforcement proceedings, null and void on the ground that the name of the applicant in the writ of execution did not correspond to its registered company name. On 2   February   2004 the applicant requested the President of the HCC to cancel the writ of execution issued on 15   September   2003 on the ground that it was wrongly issued in pursuance of the ruling of 26   August   1998 (payment in money) instead of the judgment of 10   April   1998 (payment in kind). It further requested the HCC to inform the law-enforcement bodies about the allegedly unlawful actions of the judge of the Kherson Regional Commercial Court. On 27   February   2004 the Komsomolsky District Bailiffs' Service lodged an appeal against the decision of 27   January   2004 with the Kherson Regional Court of Appeal. Those proceedings are still pending. On 25   March   2004 the Bailiffs' Service ordered the termination of the enforcement proceedings on the basis of the court's decision of 27   January   2004. The order also referred to information about the striking out of the applicant from the Companies Register of the Republic of Latvia. However, on 5   April   2004 a certificate was issued maintaining the applicant in that Register. On 7   April   2004 the Kherson Regional Court of Appeal quashed the decision of the Komsomolsky Local Court of 29   December   2003 and discontinued the proceedings because the dispute fell within the competence of the commercial courts. On 23   April   2004 the applicant lodged a claim with the Kherson Regional Commercial Court against the Komsomolsky District Bailiffs' Service for the allegedly improper handling of the enforcement proceedings, and seeking UAH 7,011,186 in compensation from the Bailiffs' Service. The same day the applicant lodged a complaint against the decision of the Bailiffs' Service on 25   March   2004. On 27   April   2004 the Bailiffs' Service received information from the Latvian authorities that the applicant had not been struck out of the Latvian Companies Register. On 28   April   2004 the Kherson Regional Bailiffs' Service renewed the enforcement proceedings in the applicant's case. On 6   May   2004 the Bailiffs' Service suspended the enforcement proceedings again as its appeal against the decision of 27   January   2004 had not yet been examined by the Kherson Regional Court of Appeal. On 28   May   2004 the Kherson Regional Commercial Court allowed the applicant's claim of 23   April   2004 against the Bailiffs' Service and initiated proceedings in the case. The Refinery, being the third party in the proceedings, lodged an appeal with the Zaporizhzhya Appellate Commercial Court. On 16   June   2004 the Kherson Regional Commercial Court suspended proceedings in the applicant's case against the Bailiffs' Service in view of the Refinery's appeal. On 29   June   2004 the Zaporizhzhya Appellate Commercial Court rejected that appeal on the ground that the ruling of 28   May   2004 was not subject to appeal under domestic law. On 13   July   2004 the Kherson Regional Commercial Court renewed the proceedings in the applicant's case against the Bailiffs' Service. (g)     Bankruptcy proceedings In September   1999, the judgment in its favour having remained unenforced, the applicant brought bankruptcy proceedings against the Refinery in the Kherson Regional Arbitration Court. On 7   September   1999, the Kherson Regional Arbitration Court initiated such proceedings. On 3   November and 10   December   1999 the court adjourned the case upon the request of the debtor in order to determine the Refinery's solvency. On 18   February   2000 the bankruptcy proceedings were resumed. On 21   March   2000 the court terminated the bankruptcy proceedings for lack of grounds, the judgment in favour of the applicant having been quashed on 28   January   2000. On 8   February and 15   March   2002, after the revival of the judgment in the applicant's favour by the Supreme Court of Ukraine, the applicant requested the HCC to quash the decision of the Kherson Regional Arbitration Court of 21   March   2000 in the light of newly discovered circumstances, and to re-open the bankruptcy proceedings against the Refinery. On 22 March   2002 the Kherson Regional Commercial Court re-opened the bankruptcy proceedings against the Refinery. On 17   April   2002 the Kherson Regional Commercial Court quashed the decision of 21   March   2000 and terminated the bankruptcy proceedings as being premature because, at that time, no enforcement proceedings were pending as the applicant had not yet presented its duplicate execution writ, issued on 29   March   2002, for enforcement. In 2002-2003 the applicant filed numerous complaints with different State institutions in Ukraine to challenge what it considered to be the continuous violation of its rights, and tried to bring criminal proceedings against the competent authorities. (h)     Other events On 17   July   2003 the Latvian Companies Registrar issued a certificate stating that the powers of the president of the applicant company had expired in April 1995. On this basis, the representative of the Refinery attempted to institute criminal proceedings against that person. On 2   September   2003 the Companies Registrar informed the applicant that the certificate reflected a technical mistake in the Register's database and issued a new certificate confirming the powers of the president of the applicant to act as its representative. On 30   October   2003 the applicant requested the GPO to institute criminal proceedings against the Refinery, the former Prime Minster of Ukraine, and the Kherson Regional Prosecutor's Office. B.     Relevant domestic law and practice 1.     Code of Arbitration Procedure of 6 November 1991 (as worded when the application was lodged) Article 91 “The lawfulness and merits of a judgment, order or decision of an arbitration court ... may be reconsidered under the supervisory review procedure on an application by a party or on an appeal by a prosecutor or his deputy, in accordance with this Code and other Ukrainian laws. An application by a party for the review of a judgment, order or decision under the supervisory review procedure shall be examined by the President of the Arbitration Court of the Autonomous Republic of Crimea or his deputy, by the presidents of the regional arbitration courts, the Kiev City Arbitration Court or the Sebastopol City Arbitration Court or their deputies, or by a panel of the Highest Arbitration Court for the review of judgments, orders and decisions (hereinafter –the panel). The following persons are empowered to lodge an appeal for supervisory review: The Prosecutor General and his deputies ...; The Prosecutor of the Autonomous Republic of Crimea, the prosecutor of a region and of the cities of Kiev and Sebastopol and their deputies ...” Article 97 “The President of the Highest Arbitration Court, the Prosecutor General or his deputies shall be entitled to lodge an appeal with the Presidium of the Highest Arbitration Court, seeking the review of a judgment of the Panel of the Highest Arbitration Court in a commercial case.   ...” Article 112 “The arbitration court may review a judgment, order or decision given by it in the light of newly discovered circumstances of significant importance for the case that were not and could not have been known to the applicant.” 2.     Code of Commercial Procedure of 6 November 1991 (former Code of Arbitration Procedure as renamed and amended on 21 June 2001) Article 85 of the Code provided that the decision of the first instance court came into force 10 days after its adoption, unless it was appealed against. In the latter case, the decision came into force after its review by the appellate court. Article 93 of the Code provided that an appeal against the decision of the first instance court could be lodged with the appellate court within 10 days of the date when the decision was pronounced or notified in writing. Extension of the time-limit for belated appeals was permitted only within three months of the decision of the first instance court. Article 114 of the Code provided that decisions given under the review procedure in the light of newly discovered circumstances could be appealed against to the higher courts under the general rules.   3.     Law of 21   June   2001 introducing amendments to the Code of Arbitration Procedure This Law introduced amendments and renamed the Code of Arbitration Procedure as the Code of Commercial Procedure with effect from 5 July 2001. The Final and Transitional Provisions of the Law provide: “2. Cases that belong to the competence of the local commercial courts, initiated prior to the entry into force of this Law, shall be considered by these courts, acting at first instance, in accordance with provisions of the Code of Commercial Procedure of Ukraine. 3. Cases that according to this Law belong to the competence of the local commercial courts, initiated by the Highest Commercial Court of Ukraine prior to the entry into force of this Law, shall be transferred to the appropriate local commercial court for examination in accordance with the provisions of the Code of Commercial Procedure of Ukraine for consideration at first instance. 4. A judgment in a case which has not been appealed against to the president of the arbitration court can be appealed against to the commercial courts of the appellate or cassation instance in accordance with the procedure established by the Code of Commercial Procedure of Ukraine... 9. Decisions of the panel of the Highest Arbitration Court, decisions of the Presidium of the Highest Arbitration Court, not appealed against prior to the entry into force of this Law, and decisions of the Plenary of the Highest Arbitration Court are final and can be appealed against to the Supreme Court of Ukraine on the grounds and in accordance with the procedure laid down in the Code of Commercial Procedure.” 4.     Law of 24 March 1998 “on the State Bailiffs' Service” Article 11 of the Law provides for the liability of bailiffs for any inadequate performance of their duties, as well as compensation for damage caused by a bailiff when enforcing a judgment. Under Article 13 of the Law, acts and omissions of the bailiff can be challenged before a superior official or the courts. 5.     Law of 21   April   1999 “on Enforcement Proceedings” Article 33 of the Law provides that, in circumstances that hinder or prevent the enforcement of a judgment, the bailiff and the parties are entitled to request the court which issued the writ of execution to change the manner of enforcement. COMPLAINTS The applicant complained, under Article 6   §   1 of the Convention and Article 1 of Protocol No. 1, about the quashing of the final and binding judgment given in its favour. It alleged a lack of impartiality on the part of the domestic courts. Furthermore, the applicant complained about the re-opening of the case after the judgment in its favour had been revived, as well as the non-enforcement of that judgment. THE LAW A.     Objection of the Government as to the applicant's victim status The Government submitted that the applicant could no longer claim to be a victim of a violation of the Convention with respect to its original complaint about the quashing of the judgment in its favour. The Government referred to the fact that, on 21   January   2002, the Supreme Court of Ukraine had revived the judgment, having found that the appeals of the General Prosecutor's Office for supervisory review were unlawful. The Government maintained that, by reinstating the applicant in its rights, the State authorities had offered it “redress” for any violation. The Government further maintained that “redress” in the applicant's case should be interpreted as the correction of the situation, unrelated to the pecuniary compensation. The applicant contested this argument. The Court recalls that a decision or measure favourable to an applicant is not, in principle, sufficient to deprive the individual of his or her status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France , judgment of 25   June 1995, Reports of Judgments and Decisions 1996-III, p. 846, § 36; Dalban v. Romania , judgment of 28   September 1999, Reports 1999-VI, §   44). Turning to the facts of the present case, the Court notes that the quashing of the judgment given in the applicant's favour was found unlawful by the Supreme Court on the ground that the GPO had exceeded its competence by interfering in the property dispute between two private companies. The Court accepts that, in the instant case, the State authorities have acknowledged the misuse of the re-opening proceedings and reinstated the applicant in its title to the amount awarded, which means that the applicant's substantive rights have been recognised as a matter of domestic law. However, the Court is not persuaded that the applicant can be regarded as having been afforded adequate redress. On this point it observes that the domestic courts did not order payment of any compensation for the pecuniary or non-pecuniary damage sustained by the applicant as a result of the alleged violations. The Court concludes that the applicant may still claim to be a “victim” within the meaning of Article 34 of the Convention. Accordingly, the Court dismisses the Government' objection. B.     Admissibility of the applicant's complaints 1.     The