THIRD SECTION
CASE OF ZALIZKO v. RUSSIA
(Application no. 26503/07)
JUDGMENT
STRASBOURG
8 March 2018
This judgment is final but it may be subject to editorial revision.
In the case of Zalizko v. Russia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Liv Tigerstedt Acting Deputy Section Registrar,
Having deliberated in private on 15 February 2018.
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on the date indicated in the appended table.
2. The application was communicated to the Russian Government (“the Government”).
THE FACTS
3. The relevant details of the application are set out in the appended table.
4. The applicant complained of the non-enforcement of domestic decisions given against the unitary enterprise, the foodservice centre of the commerce department of the Leningrad military district («Комбинат общественного питания Управления торговли ЛенВО») and of the lack of any effective remedy in domestic law.
5. In accordance with the Government’s Decree of 6 July 1999, the Orders of the Ministry of State Assets of 12 October 1999 and of 9 December 1999, the assets of the unitary enterprise were transferred to a federal treasury enterprise without the transfer of the debts of the company.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 13 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1
6. The applicant complained of the non-enforcement or delayed enforcement of domestic decisions given in her favour and of the lack of any effective remedy in domestic law. She relied, expressly or in substance, on Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which 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 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.”
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.”
7. In order to determine the issue of State responsibility for the debts of State or municipal unitary enterprises the Court must examine whether and how the extensive powers of control provided for in domestic law were actually exercised by the authorities in the present case (see Liseytseva and Maslov, nos. 39483/05 and 40527/10, §§ 204-06, 9 October 2014). The present case is similar to Liseytseva and Maslov (ibid., §§ 208-19) from the standpoint of the debtor enterprises’ functions and the degree of actual control exercised by the authorities over the companies’ activities. The relevant State authority ordered the transfer of the unitary enterprise’s assets to a federal treasury enterprise without the transfer of its debts (see paragraph 5 above). In these circumstances, the Court finds that, as in the leading judgment, the debtor enterprise in the instant case did not enjoy sufficient institutional and operational independence from the authorities, and the State is to be held responsible under the Convention for the judgment debts owed to the applicant by the enterprise.
8. The Court reiterates that the execution of a judgment given by any court must be regarded as an integral part of a “hearing” for the purposes of Article 6. It also refers to its case-law concerning the non-enforcement or delayed enforcement of final domestic judgments (see Hornsby v. Greece, no. 18357/91, § 40, Reports of Judgments and Decisions 1997-II).
9. The Court further notes that the decisions in the present application ordered specific action to be taken (see the appended table for details of court orders). The Court therefore considers that the decisions in question constitute “possessions” within the meaning of Article 1 of Protocol No. 1 to the Convention.
10. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the admissibility and merits of these complaints. Having regard to its case-law on the subject, the Court considers that in the instant case the authorities did not deploy all necessary efforts to enforce fully and in due time the decisions in the applicant’s favour.
11. The Court further notes that the applicant did not have at her disposal an effective remedy in respect of her complaints.
12. These complaints are therefore admissible and disclose a breach of Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 and Article 13 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
13. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
14. Regard being had to the documents in its possession and to its case‑law (see, in particular, Voronkov v. Russia, no. 39678/03, §§ 68-69, 30 July 2015), the Court considers it reasonable to award the sums indicated in the appended table.
15. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that this application discloses a breach of Article 6 § 1 of the Convention, Article 1 of Protocol No. 1 and Article 13 of the Convention concerning the non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs);
3. Holds
(a) that the respondent State is to pay the applicant, within three months, the amounts indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 8 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Liv TigerstedtLuis López Guerra
Acting Deputy RegistrarPresident
APPENDIX
Application raising complaints under Article 6 § 1 and Article 13 of the Convention and Article 1 of the Protocol No. 1
(non-enforcement or delayed enforcement of domestic decisions given against unitary enterprises (GUPs, MUPs) and lack of any effective remedy in domestic law)
Application no.
Date of introduction
Applicant name
Date of birth
Relevant domestic decision
Start date of non-enforcement period
End date of non‑enforcement period
Length of enforcement proceedings
Domestic order (in euros)
Amount awarded for pecuniary damage (in euros)
Amount awarded for non‑pecuniary damage and costs and expenses
(in euros)[1]
26503/07
24/04/2007
Galina Ivanovna Zalizko
20/09/1946
Leninskiy District Court of St Petersburg, 16/07/2002
Leninskiy District Court of St Petersburg, 14/03/2007
14/11/2002
27/03/2007
pending
More than 14 year(s) and 10 month(s)
pending
More than 10 year(s) and 5 month(s) and 20 day(s)
5,832
5,832
2,000
[1]. Plus any tax that may be chargeable to the applicant.
Full & Egal Universal Law Academy