THIRD SECTION
DECISION
Application no. 60002/09
Shakhid Saydaliyevich ASLIKHANOV
against Russia
The European Court of Human Rights (Third Section), sitting on 22 November 2016 as a Committee composed of:
Branko Lubarda, President,
Pere Pastor Vilanova,
Georgios A. Serghides, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 10 October 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Shakhid Saydaliyevich Aslikhanov, is a Russian national, who was born in 1954 and lives in Groznyy, the Chechen Republic. He was represented before the Court by Mr I.Y. Timishev, a lawyer practising in Nalchik.
2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
A. The circumstances of the case
3. On 6 April 2009 the Commercial Court of the Chechen Republic awarded the applicant the equivalent of 43,886 euros (EUR), to be paid by the municipal unitary enterprise “Proizvodstvennoye Upravleniye Zhilishchnogo Khozyaystva” (МУП «Производственное управление жилищного хозяйства») (hereafter “the company”). The judgment became final on 6 May 2009.
4. On 5 February 2010 the company was declared insolvent and its liquidation started. The liquidation proceedings are still pending.
5. The enterprise’s main activities were related to maintenance of municipal housing.
B. Relevant domestic law and practice
6. The domestic provisions relevant to the cases on the legal status of State and municipal unitary enterprises with the right of economic control are summarised in Liseytseva and Maslov v. Russia (nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014), and Samsonov v. Russia ((dec.) no. 2880/10, 18 September 2014).
7. The domestic provisions relevant the status and responsibility of liquidators in insolvency proceedings are summarized in Kotov v. Russia [GC], no. 54522/00, § 51, 3 April 2012. In particular, pursuant to Section 60 of the Insolvency Act of 26 October 2002, creditors of a bankrupt company are entitled to complain to a commercial court about the liquidator’s acts or omissions within the bankruptcy proceedings.
8. By virtue of article 96 §§ 4-5 of Federal Law no. 229-FZ of 2 October 2007 “On enforcement proceedings”, when the bailiffs receive a copy of a court decision ordering liquidation of a debtor company, they discontinue the enforcement proceedings and transfer the execution writs to the liquidator.
9. On 23 July 2009 the Plenary Supreme Commercial Court in § 15 of its Ruling no. 59 emphasised that the transfer of the execution writs to the liquidator does not absolve the creditors of the responsibility to lodge their claims before the court which examines the bankruptcy case. A liquidator, acting in the creditors’ interests, is under the obligation to immediately notify the claimants about their duty to do so upon receipt of execution writs from the bailiffs.
COMPLAINT
The applicant complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about non-enforcement of the final judgment in his favour and under Article 13 of the Convention about the lack of an effective remedy in that respect.
THE LAW
Alleged violation of Articles 6 and 13 of the Convention and Article 1 of Protocol No. 1 to the Convention on account of non-enforcement of the judgements
10. The applicant complained about the non-enforcement of the judgment in his favour and about the lack of an effective remedy in that respect. He relied on Article 6 § 1 and Article 13 of the Convention, as well as on Article 1 of Protocol No. 1 to the Convention, which, in so far as relevant, read as follows:
Article 6
“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.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Article 13
“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.”
1. The parties’ submissions
(a) The Government
11. The Government submitted that the company had not performed any public functions and its activities were purely commercial. The Government also pointed out that the company has not yet been liquidated. The Government submitted that the company was not the property of the State, was not entrusted with functions of public interest, was not controlled by the State, and had sufficient institutional and functional independence. They concluded that the debts of the company in the present cases were not attributable to the State. Accordingly, the judgment in the applicant’s favour should be regarded as issued against a private company. The judgment was not enforced due to the applicant’s failure to submit his claim to the court in the course of the insolvency proceedings, as required by domestic law.
(b) The applicants
12. The applicant submitted that lodging his claim before the court in the course of the insolvency proceedings had had no prospect of success.
2. The Court’s assessment
13. The relevant case-law regarding the State’s responsibility for the debts of unitary enterprises with the right of economic control is summarised in the judgment of Liseytseva and Maslov, cited above, §§ 183‑92. The Court held that in order to decide on the operational and institutional independence of a given municipal unitary enterprise having the right of economic control the Court has to assess the nature of the enterprise’s functions and the degree of the State or municipal authorities’ actual involvement in the management of the enterprises’ assets.
14. However, in the present case the Court does not need to decide whether the State was responsible for the alleged non-enforcement of the judgments in the applicants’ favor as the application is in any event inadmissible on the following grounds.
15. The Government submitted that the applicant had failed to submit his claim to the court which examined the bankruptcy case. However, under domestic law the liquidator was bound to notify the applicant about this duty (see paragraph 9 above). The Government did not argue that such notification was sent to the applicant.
16. Accordingly, the main issue to determine in the present case is whether the State was liable for the liquidator’s omission. The Court has examined a similar situation in the case of Kotov v. Russia [GC], no. 54522/00, §§ 91-107, 3 April 2012, and held that the liquidator, at the relevant time, enjoyed a considerable amount of operational and institutional independence, and that the respondent State could not be held directly responsible for his wrongful acts. Having further examined the State’s compliance with its positive obligations, the Court concluded that the domestic legislative framework offered the applicant adequate legal avenues for redress since he was entitled to bring a tort action against the liquidator (Kotov v. Russia [GC], cited above, §§ 120-33). The Court sees no reason to hold otherwise in the present case.
17. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 15 December 2016.
Fatoş AracıBranko Lubarda
Deputy RegistrarPresident
Full & Egal Universal Law Academy