Without waiting for lustration, raiders in robes are reviving the inglorious traditions of disregard for the law
The rampant lawlessness that reigned in the Ukrainian judicial system became one of the main causes of Euromaidan. The corrupt vertical structure of commercial courts, built by protégés of the Donetsk clan, was transformed into a highly profitable business. Entrepreneurs were no longer "sold" individual court decisions or injunctive relief, but rather entire cases at all levels of the court system. Raiders close to the government could use the courts to "squeeze out" virtually any enterprise. Unable to thrive in the stifling atmosphere of behind-the-scenes "fixing," small and medium-sized businesses became the true engine of popular protest.
The new government has declared a commitment to improving and reforming the commercial court system. On April 8, the Verkhovna Rada adopted the so-called Lustration Law for Judges, also known as "On Restoring Trust in the Judicial Authority in Ukraine." On April 15, the leadership of the Supreme Commercial Court of Ukraine changed, with Bohdan Lvov elected as its new head. However, positive changes are not yet as evident as the public expects.
Moreover, some corporate raiding schemes launched during Yankovic's tenure continue to be successfully practiced to this day. Among the most telling and dramatic stories currently unfolding is the litigation surrounding Scientific and Production Enterprise Svet LLC and Center-Svet JSC. The situation with this company is notable not so much for its use of the courts as an illegal means of alienating property (a rare occurrence in Ukraine), but for the shameful fact that the ultimate beneficiary of this criminal scheme is a servant of Themis—Kyiv Commercial Court Judge Viktoria Viktorovna Sivakova.
But first things first. Before the corporate conflict, the main co-owners of Svet Scientific and Production Enterprise LLC were Vladimir Vasilyevich Krikunov (with a 37% stake in the authorized capital) and Andrey Nikolaevich Shablatovich (36%). In addition, there were several participants in this LLC with smaller stakes: Nadezhda Aleksandrovna Skrinskaya (Tutik) (9%), Anzhela Valeryevna Koshtura (14%), and Irina Vasilyevna Savlyuk (4%).
What does Judge Sivakova have to do with this, you might ask? Well, at the height of the Maidan, when Yanukovych's throne was seriously shaky, on January 30, 2014, Shablatovich allegedly donated his 36% stake in Svet Scientific and Production Enterprise to a certain Leonid Nikolaevich Sivakov. Mr. Sivakov, in addition to being a lawyer and even the deputy chairman of the Kyiv Regional Bar Council, is known in legal circles primarily for being the husband of the aforementioned judge of the Kyiv Commercial Court. After all, you must admit, it's much easier to convince a court with relatives there than without them.
Sivakov's appearance among the shareholders of the LLC was the first step in a scheme to seize corporate rights in NPP Svet. Initially, Sivkov acted entirely legally, seeking meetings with minority shareholders of NPP Svet to establish control over the company. However, the minority shareholders decided to transfer their shares not to Sivakov, but to Krikunov, whom they had long known. On February 7, 2014, the company's shareholders, I.V. Savlyuk, A.V. Koshtura, N.A. Tutik, and V.V. Krikunov, entered into agreements to donate corporate rights amounting to 27% of the authorized capital of NPP Svet. As a result, V.V. Krikunov gained control of the company, owning 64% of the authorized capital of NPP Svet.
It would seem the situation was settled. But then the legal magic began. Shablatovich (as a minority shareholder in JSC CenterSvet) and Sivakov (as a shareholder in LLC Scientific and Production Enterprise Svet) simultaneously filed lawsuits in the Kyiv Commercial Court. The very same court where Sivakov's wife, Viktoria Viktorovna, serves as a judge! Sivakov demanded that the rights and obligations of the purchaser of the corporate rights of LLC Scientific and Production Enterprise Svet, amounting to 27%, be transferred to himself. Shablatovich also filed a similarly absurd demand (but this time regarding the shares of JSC CenterSvet). He wanted nothing less than to transfer Krikunov's shares in JSC CenterSvet, amounting to 17%, as well as 49% of JSC CenterSvet, owned by Krikunov's Sportenergy-com LLC. The fact that the actions of Shablatovich and Sivakov were completely coordinated and were links in the same chain is evidenced by the fact that their interests in court were represented by the same lawyer – Rybchenko O.G.
Significantly, the outrageous scheme, conceived under the previous regime, has been implemented under the current one! Following a court hearing on September 24, 2014, the Kyiv Commercial Court (case no. 910/10184/14) upheld the baseless claims of Sivakov and Shabaltovich. In this simple manner, the de facto minority tandem of Sivakov and Shabaltovich de jure gained control of Svet Research and Production Enterprise LLC and Svet Center JSC, which own significant real estate assets.
Needless to say, the decision was made by Judge Balac, who is the godfather of V.V. Sivakova and who, apparently, agreed to the obviously unjust decision?
The experts' pessimistic conclusions and public criticism regarding the lack of any significant changes in the judicial system are confirmed by subsequent events. Despite the blasphemous injustice of the first-instance court's decision, the Kyiv Commercial Court of Appeal (consisting of Judges Buravlev, Andriyenko, and Shapran) upheld it on November 20, 2014. Perhaps the desire to help the husband of a fellow judge outweighed the law, common sense, and judicial honor.
Legal experts argue that these court decisions are unjust, as neither the Commercial Code, nor the Law of Ukraine "On Business Entities," nor the charter of Svet Scientific and Production Enterprise LLC restrict a company's participant's right to sell or otherwise transfer their share (or part thereof) in the authorized capital to one or more participants of the company by requiring the consent of the other participants to transfer their share. A similar legal position is contained in all decisions of the Supreme Commercial Court of Ukraine on the application of Article 147 of the Civil Code of Ukraine and Article 53 of the Law of Ukraine "On Business Entities."
What is it that forces the courts to reach opposite conclusions, pointing to the seemingly out-of-place need to obtain the consent of L.M. Sivakov, as a participant in Svet Scientific and Production Enterprise LLC, for the alienation of a share in the authorized capital to other participants in the same company, and his allegedly existing preemptive right over other participants to acquire the company's corporate rights? Perhaps the answer to this question should be sought not only by entrepreneurs who are victims of judicial lawlessness, but also by the High Council of Justice, the High Qualification Commission of Judges of Ukraine, and the Prosecutor General's Office. After all, it is obvious that the actions of A.M. Shabaltovich, L.M. Sivakov, and V.V. Sivakova constitute a crime under Part 4 of Article 190 of the Criminal Code of Ukraine (fraud committed on an especially large scale and by an organized group), as well as incitement to commit a crime under Part 2 of Article 375 of the Criminal Code of Ukraine (deliberately unjust decision-making by judges for selfish motives).
While law enforcement officials were pondering this, Leonid Sivakov, having just received the aforementioned court decisions, without waiting for the corresponding court order, on November 26, 2014, sent a telegram message about holding a general meeting of participants of Svet Scientific and Production Enterprise LLC on November 28, 2014, at the office of his law firm, Sivash LLC, with an agenda on the appointment of a new director and the adoption of a new version of the charter.
This is an attempt, typical of all corporate raiders and fraudsters, to seize and dispose of the assets of a seized enterprise before a higher court has ruled on the case. Whether the cassation court will succeed and what position it will take in this high-profile case will be revealed very soon.
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