THIRD SECTION
DECISION
Application no. 16418/10
Aleksandr Vadimovich ABELMAS against Russia
and 7 other applications
(see list appended)
The European Court of Human Rights (Third Section), sitting on 23 May 2017 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Russian Government ("the Government") were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
B. Decisions in the applicants’ favour against the State unitary enterprise
4. The applicants were employees of the State unitary enterprise Magadan Airlines (Государственное унитарное предприятие «Магаданские авиалинии») (hereafter “the company”). In 2007 and 2008 they brought proceedings against their employer to seek unpaid salary and other work-related payments. Between 2007 and 2008 the Justice of the Peace of the 7th Court Circuit of Magadan and the Magadan Town Court issued court orders (судебные приказы) and delivered judgments against their employer, awarding the applicants salary arrears, severance pay, the indexation of salaries and compensation for non-pecuniary damage (see Appendix).
5. On 25 July 2007 the Magadan Regional Commercial Court declared the company insolvent and ordered the liquidation procedure to be commenced.
6. The applicants stated that some of the court awards in their favour had been enforced between April and September of 2011. Other awards had not been enforced and had been deemed to have been settled when the liquidation of the company had been completed (see paragraph 13 below).
C. The debtor company
1. Information on the debtor company
7. The company was set up by a decision of the town administration of Magadan (“the town administration”). Its main commercial activities were public air transport services, freight, hotel and medical services, assistance to other airlines in questions of security such as handling aircraft hijackings, the search and rescue of airplanes and other services. The company had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it by the town administration in order to carry out its statutory activities.
8. On 16 June 2006 the Federal Transport Supervisory Service (“Федеральная служба по надзору в сфере транспорта”) suspended the company’s air transport services licence on the grounds of financial instability.
2. Decision to transfer assets to the town administration
9. The Commercial Court of the Magadan Region decided on 6 February 2007 to put the company, which had already had financial difficulties, into administration (процедура наблюдения) within the insolvency proceedings opened against it. On 22 March 2007 the Magadan regional office of the Federal Property Management Agency (“Территориальное управление Федерального агентства по управлению федеральным имуществом”) transferred the assets of the Aviameditsina medical centre, one of the company’s business units, which had a remaining aggregate value of 8,184,384 roubles (RUB), to the Magadan town administration.
10. On 7 April 2008 the Magadan Regional Commercial Court dismissed a complaint by the company’s liquidator against that decision. On 2 July 2008 the Dalnevostochniy Regional Commercial Court upheld that judgment. The two regional courts found that the medical centre had not been used for the needs of the company, that is, regular medical checks of staff, since the company’s licence had been revoked. In fact, Aviameditsina had offered a public service by providing medical services to local people and so the transfer of its assets to the local administration had been justified. The Magadan Regional Court held in addition that the assets had been transferred with the consent of the acting head of the company, that their value had been less than 5% of the value of the company’s overall property and that, in any event, the complaint by the airline had been lodged outside the three-month statutory time-limit.
3. Proceedings brought by the company against the State
11. In 2009 (the exact date is not specified) the company sued the State for pecuniary damages of RUB 43,739,542, equal to the loss it had incurred by selling tickets for children at a 50% discount to the normal price, an obligation which had been imposed on it by Article 106 of the Russian Aviation Code.
12. On 27 March 2009 the Moscow City Commercial Court rejected the company’s claim on the grounds that the company should bear the cost of the discount tickets, not the State.
13. The Moscow Regional Commercial Court and the Supreme Commercial Court of Russia upheld the decision on 30 October 2009 and 17 February 2010 respectively.
4. The company’s liquidation
14. On 23 October 2012 the Magadan Regional Commercial Court terminated the company’s insolvency proceedings and ordered its liquidation.
5. Proceedings for subsidiary liability brought by the first applicant
15. In 2011 the first applicant brought an action against the Federal Property Management Agency, one of the founders of the company, claiming that it was liable to pay him the sums awarded by the court in orders of 13 June and 27 November 2007.
16. On 23 March 2011 the Magadan Regional Commercial Court rejected that claim on the grounds of lack of jurisdiction as it could only examine disputes between legal entities.
D. Relevant domestic law and practice
17. The domestic provisions relevant to cases on the legal status of State and municipal unitary enterprises with the right of economic control are summarised in Samsonov v. Russia (dec.), no. 2880/10, 16 September 2014 (see, in particular, §§ 15-27 and 32 of the decision for a summary of the provisions of the Civil Code and the Unitary Enterprises Act of 14 November 2002; also see, in so far as relevant, Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014).
18. The relevant part of Article 106 § 3 of the Russian Aviation Code reads as follows:
“Aircraft passengers shall have the right to:
the free carriage on international routes of one child of no more than two years of age without a separate seat, on the basis of a reduced tariff. Additional children not older than two years, as well as children aged between two and twelve years, shall be carried in accordance with a reduced tariff and in separate seats.”
COMPLAINT
19. The applicants complained under Articles 6 § 1 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention about delays or failures to enforce domestic decisions given in their favour and of the lack of any effective remedy in domestic law.
THE LAW
A. Joinder of the applications
20. Having regard to the fact that the subject matter of the applications is the same, the Court finds it appropriate to examine them jointly in a single decision.
B. Alleged violation of Article 6 of the Convention and of Article 1 of Protocol No. 1 to the Convention
21. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions given in their favour. They relied on Article 6 § 1 of the Convention and on Article 1 of Protocol No. 1 to the Convention, which, in their relevant parts, read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law...”
1. Submissions by the parties
22. The Government argued that the unitary company in question had not been a “State” authority within the meaning of the Convention. They accordingly submitted that the debts of municipal unitary enterprises were not attributable to the State.
23. The applicants maintained that the debtor company had been, in fact, a State‑run enterprise controlled by the local administration and that the State had contributed to making the company insolvent. Firstly, a State agency had suspended and subsequently revoked the company’s licence for its main activity, air transport services. Secondly, some of the company’s assets, namely the Aviameditsina medical centre, one of the company’s business units, had been transferred to the Magadan town administration just a few months before the company had been declared insolvent. The applicants stressed that the aggregate value of that asset would have been sufficient to fulfill the company’s commitments towards them. Thirdly, the company had provided transport services for children at a 50% discount to the normal price, which, according to the applicants, was indicative of the public nature of its services. Those costs were to be reimbursed from public funds later; however, the debt for those services had never been paid.
2. The Court’s assessment
24. In Liseytseva and Maslov, cited above, the Court concluded that, on the one hand, unitary enterprises with the right of economic control enjoy some degree of legal and economic independence from the State under domestic law. On the other hand, the Court has found that domestic law provides for a wide range of possibilities for the owner of such a company to control crucial aspects of its activity – ranging from the approval of transactions and the appointment of the company’s director to the right to restructure and liquidate it – as it sees fit (Liseytseva and Maslov, cited above, §§ 200-01). Furthermore, the scope of actual State control may be further enhanced in view of the functions performed by a particular company (ibid., § 203). In order to decide therefore on the operational and institutional independence of a particular municipal unitary enterprise having the right of economic control, the Court has to examine the actual manner in which State control was exercised in that case (ibid., § 205). In doing so, the Court will have regard, in particular, to the nature of the enterprise’s functions and the sphere it operated in in order to determine whether it exercised a public duty and was, by virtue of its functions, placed under the actual strict control of the authorities. The Court will also assess the degree of the State or municipal authorities’ actual involvement in the management of the enterprise’s assets, including – but not limited to – disposal of the assets, the authorities’ conduct in the liquidation and restructuring proceedings, giving binding instructions or other circumstances which provide evidence of the actual degree of State control in a particular case.
25. In the present cases, the applicants argued, firstly, that the decision to revoke the company’s licence for air transport services, its core activity, had prevented it from making a profit (see paragraph 8 above).
26. The Court cannot see in what way that argument is relevant to the State’s responsibility. Granting and revoking licences for operating certain businesses is a prerogative of the public authority and it is exercised in the same manner in respect of all companies, be they private or public.
27. The applicants further submitted that the company provided transport services to children at a 50% discount, in accordance with the requirements of the Russian Aviation Code (see paragraph 11 above). The State did not reimburse that cost (see paragraphs 12 and 13 above). The Court notes that, similarly, the relevant provision of the Aviation Code was applicable in the same manner to all air companies, not only Magadan Airlines. The Court is unable to hold that the lack of a compensation mechanism was in any way indicative of control by the authorities of the company’s business activities.
28. Lastly, the applicants argued that the decision to transfer the assets of one of the company’s units, the Aviameditsina medical centre, to the town administration had reduced their chances of recovering their judgment debts (see paragraph 9 above).
29. The Court notes in that respect that the impugned decision was taken after the company’s licence had been revoked and after the opening of insolvency proceedings (see paragraphs 9 and 10 and above), which means the company had already incurred the debts which eventually led to its bankruptcy. Moreover, the Aviameditsina medical centre provided medical services to local people, which was not the company’s main activity (see paragraph 6 above). In addition, the Court notes that the value of the assets was less than 5% of the value of the company’s property (see paragraph 10 above) (see, a contrario, Yershova v. Russia, no. 1387/04, § 60, 8 April 2010, and Liseytseva and Maslov, cited above, § 211, in which the State or municipal authorities transferred all the assets of a company which had become unable to continue its activities and which was, eventually, not able to satisfy the applicants’ claims in insolvency proceedings owing to a lack of assets). Accordingly, there is no reason to hold that the removal of the medical centre’s assets prevented the company from conducting its statutory activities or satisfying the applicants’ claims in the subsequent liquidation proceedings. Indeed, the Court notes that some claims were paid (see paragraph 6 above).
30. The Court further notes that the parties have not provided any information proving that the company exercised a public duty or was placed under the actual strict control of the authorities by virtue of its functions (Samsonov, cited above, § 74).
31. Lastly, there is nothing in the case file to allow the Court to find that the State was directly responsible for the company’s insolvency in any shape or form, for example by issuing binding instructions leading to adverse financial effects and so forth (ibid., § 75).
32. In the light of the above, the Court finds that the company enjoyed sufficient institutional and operational independence from the State authorities. It is therefore not possible to require that the final domestic decisions given against the company in favour of the applicants be enforced from the State budget.
33. The Court observes that State responsibility under the Convention can also be examined from the standpoint of enforcement against private persons (ibid., § 76). Even assuming that State responsibility may be engaged for the acts and omissions of the liquidator (see Kotov v. Russia [GC], no. 54522/00, § 107, 3 April 2012) or bailiffs (see Samsonov, cited above §§ 44 and 82), the Court discerns nothing in the parties’ submissions to allow for the conclusion that the lack of enforcement or partial enforcement of the domestic decisions was due to negligence or wrongdoing of those bailiffs or liquidator rather than the insolvent company’s lack of funds (Sanglier v. France, no. 50342/99, § 39, 27 May 2003, and Samsonov, cited above, § 86).
34. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
C. Alleged violation of Article 13 of the Convention
35. The applicants complained of the lack of any effective remedy in domestic law in respect of their complaint of non‑enforcement. Article 13 of the Convention read as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
36. The Court notes that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
37. The Court has found that the applicants’ complaint under Article 1 of Protocol No.1 to the Convention is manifestly ill-founded. For similar reasons, the applicant does not have an arguable claim and Article 13 is therefore inapplicable to this case.
38. It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 15 June 2017.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
APPENDIX
No.
Application no.
Lodged on
Applicant name, date of birth, place of residence
Judgment/court order by
1.
16418/10
24/02/2010
Mr Aleksandr ABELMAS
21/07/1963
Magadan
Justice of peace of the 7th Court Circuit of Magadan, Magadan Region
2.
17050/10
04/03/2010
Mr Vladimir VARENIK
11/09/1962
Magadan
Justice of peace of the 7th Court Circuit of Magadan, Magadan Region
Magadan Town Court, Magadan Region
3.
17685/10
06/03/2010
Ms Zoya VORONTSOVA
22/02/1947
Magadan
Justice of peace of the 7th Court Circuit of Magadan, Magadan Region
Magadan Town Court, Magadan Region
4.
18594/10
14/03/2010
Mr Viktor KUDRYAVTSEV
23/07/1956
Magadan
Justice of peace of the 7th Court Circuit of Magadan, Magadan Region
5.
18770/10
11/03/2010
Ms Tatyana TSARKO
16/04/1963
Magadan
Justice of peace of the 7th Court Circuit of Magadan, Magadan Region
Magadan Town Court, Magadan Region
6.
19026/10
11/03/2010
Ms Yelena YEROKHINA
10/02/1948
Magadan
Justice of peace of the 7th Court Circuit of Magadan, Magadan Region
Magadan Town Court, Magadan Region
7.
19906/10
11/03/2010
Mr Valentin YEROKHIN
25/01/1949
Magadan
Justice of peace of the 7th Court Circuit of Magadan, Magadan Region
Magadan Town Court, Magadan Region
8.
20132/10
13/03/2010
Mr Viktor ZUBAREV
29/06/1946
Magadan
Justice of peace of the 7th Court Circuit of Magadan, Magadan Region
Magadan Town Court, Magadan Region
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