Communicated on 16 February 2015
FIRST SECTION
Application no. 49194/09
Nikolay Filippovich DEMIDOV against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
THE FACTS
The applicants are Russian nationals. Their personal details are summarised in the appendix below.
A. The circumstances of the cases
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants sued different municipal companies, referred to in the appendix as the “respondent companies”, in various unrelated sets of the court proceedings. These companies were incorporated as municipal unitary enterprises and provided a wide range of services in the respective municipal districts in several regions of Russia.
On the dates tabulated below domestic courts by separate judgments made pecuniary awards in the applicants’ favour, to be paid by the debtor companies. Particulars of each judgment are summarised in the appended table. On the dates listed in the appendix the awards became enforceable. It appears that the final judicial decisions in the applicants’ favour have remained unenforced.
On various dates the companies got insolvent and were liquidated. The applicants sued the companies’ assets’ owners – the respective local authorities – in the subsidiary liability proceedings. Their claims were rejected as unfounded.
B. Relevant domestic law and practice
For a summary of the relevant domestic law and practice concerning municipal unitary enterprises see, in so far as relevant, Samsonov v. Russia (dec.), no. 2880/10, §§ 15-44, 9 October 2014, and Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014, not yet final.
COMPLAINTS
The applicants complain, notably, under Article 6 of the Convention and Article 1 of Protocol No. 1 about the failure to enforce judgments in their favour in good time. Some of them also complain that they did not have an effective domestic remedy in respect of the non‑enforcement.
QUESTIONS
1. Did the applicant in case no. 36888/13 comply with six‑month requirement in respect of his non-enforcement complaint?
2. Have the final judgments in the applicants’ favour (tabulated in the Appendix) been fully and timeously enforced, either by the owner or, in the event of the debtor municipal companies’ (referred to as the “respondent companies” in the Appendix) liquidation, by any other person or authority?
3. Are the debts owed by the municipal companies to the applicants imputable to the State within the meaning of Article 34 of the Convention and, if so, to what extent? In order to allow the State responsibility test under the Convention the parties are invited to address, in so far as relevant and appropriate, the following points in respect of each debtor company:
(a) What was the company’ s legal status under the domestic law? The Government are invited to submit a copy of the company’s Rules.
(b) Has the debtor company got insolvent and was it subject to liquidation? The Government are requested to submit copies of the respective domestic courts’ decisions and other relevant documents.
(c) Did the debtor company enjoy sufficient operational and institutional independence from the State (see Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, § 114, ECHR 2014, with further references)?
(i) In particular, as regards the nature of the company’s activity, did the company participate in the exercise of governmental powers, run a public service or perform other public duties under the control or supervision of the State authorities? Did it enjoy powers beyond those conferred by ordinary private law in the exercise of its activities (see, mutatis mutandis, Islamic Republic of Iran Shipping Lines v. Turkey, no. 40998/98, § 81, ECHR 2007)? What was the context of its operation, and, in particular, was it a monopoly or a heavily regulated business (see Ališić and Others, cited above)? Was it, by virtue of its functions, placed under an actual strict control of the authorities?
(ii) As regards the company’s operational independence, what was the extent of the owner’s actual supervision and control (see Ališić and Others, cited above)? In particular, to which extent were the debtor company’s assets controlled and managed by the State (compare, in so far as relevant, Khachatryan v. Armenia, no. 31761/04, § 51, 1 December 2009)? Did the State authorities dispose of the debtor company’s assets as they saw fit (see Chernobryvko v. Ukraine, no. 11324/02, §§ 23‑24, 13 September 2005)?
(iii) In case where the debtor company got insolvent, was the State directly responsible for the company’s financial difficulties (see Ališić and Others, cited above, § 115, with further references)? Has its insolvency been caused by the State, and in the affirmative, to which extent (see, mutatis mutandis, Katsyuk v. Ukraine, no. 58928/00, §§ 42‑44, 5 April 2005, and Burak v. Ukraine (dec.), no. 20668/02, 23 October 2007)?
4. If the judgments in the applicants’ favour have not been fully and timeously enforced and the companies’ debts are attributable to the State, has the State’s continuing failure to enforce them violated the applicants’ right to a court under Article 6 of the Convention and their right to peaceful enjoyment of their possessions under Article 1 of Protocol No. 1?
5. If the judgments in the applicants’ favour have not been fully and timeously enforced and the respondent companies’ debts are not imputable to the State (see Question 3 above), did the State authorities diligently assist the applicants in the enforcement of the judgments in their favour (see Kunashko v. Russia, no. 36337/03, §§ 38‑49, 17 December 2009, with further references)?
6. Did the applicants have at their disposal an effective remedy in respect of the alleged violations of Article 6 of the Convention and Article 1 of Protocol No. 1, as required by Article 13 of the Convention? In particular, did the subsidiary liability proceedings constituted an effective remedy within the meaning of Article 13?
APPENDIX
No.
Application no.
Lodged on
Applicant name
date of birth
place of residence;
representative’s name if relevant
Domestic court, date of the judgment and its entry into force
Respondent entity and, where relevant, information on the sphere of its operation
Domestic award
Enforcement status
Other relevant information
49194/09*
15/08/2009
Nikolay Filippovich DEMIDOV
02/07/1942,
Angarsk
represented by Ms Natalya Yuryevna SHEMETOVA
1) 22/10/1999, Commission on Labour Disputes
2) Justice of the Peace of the 71st Court Circuit of the Irkutsk Region
26/10/2006, final on
07/11/2006
Municipal Unitary Enterprise of Communal Services (“MUP KKH”)
of the Mamsko-Chuiskiy District
Sphere of operation: in particular, heating supply
1) RUB 22,454 in salary arears
2) RUB 58,745.20 in salary arrears
1)Apparently, remains unenforced in part
2) Apparently, not enforced to date
On 24/08/2004 the insolvency proceedings started in respect of the respondent company and on 28/02/2008 the debtor company was liquidated.
On 16/02/2009 the Mamsko-Chuiskiy District Court of the Irkutsk Region refused to hold the owner of the company’s assets (the local administration) liable for the company’s debts in the subsidiary liability proceedings.
On 31/07/2009 the Irkutsk Regional Court upheld the judgment on appeal.
42111/10
30/06/2010
Olga Viktorovna GORBUNOVA
22/07/1977
Ulyanovsk
Zasviazhskiy District Court of Ulyanovsk, the Ulyanovsk Region
23/07/2009
08/08/2009
Municipal Unitary Enterprise “Electricity and Heating Supply” (MP Electroteploset) of the Mainskiy District of the Ulyanovsk Region
Sphere of operation: in particular, electricity supply in the area in the area
RUB 126,808 and RUB 14,327 in salary arrears for two distinct periods, RUB 4,000 of compensation of non-pecuniary damage
Apparently, not enforced to date
On 12/02/2007 the respondent company was declared insolvent and the liquidation proceedings started.
On 15/08/2009 the applicant received a writ of execution and on 28/08/2009 sent it to a liquidator. On 10/10/2009 the writ was returned to her without execution.
On 18/09/2009 the Ulyanovsk Commercial Court ordered the company’s liquidation and on 07/10/2009 it was liquidated.
On 10/03/2010 the Mainskiy District Court of the Ulyanovsk Region rejected the applicant’s claim against the owner (the district administration) in the subsidiary liability proceedings as unfounded (as upheld on 11/05/2010 on appeal).
61212/10*
20/09/2010
Vladimir Alekseyevich KANEV
25/06/1940
Pechora
1) Justice of Peace of the Privokzalnyy Court Circuit of Pechora of the Komi Republic
08/06/2007
18/06/2007
2) Justice of Peace of the Rechnoy Court Circuit of Pechora of the Komi Republic
29/08/2008
08/09/2008
3) Pechora Town Court of the Komi Republic
25/09/2008
25/09/2008
4) Justice of Peace of the Sosnovoborskiy Court Circuit of Pechora 30/06/2008
25/09/2008
5) Pechora Town Court of the Komi Republic
03/12/2008
13/02/2009
Municipal Unitary Enterprise for Housing and Communal Services (MUP "Pechorazhilkomhoz"or “MUP PZHKH”) of Pechora, the Komi Republic
Sphere of operation: in particular, housing and communal services in the area, heating supply
1) RUB 332,985.85 in unpaid wages, index-linking, non‑pecuniary damages
2) RUB 5,079.07, index-linking of an earlier award
3) RUB 342,186.18 in unpaid wages, index-linking of an earlier award
4) RUB 54,326.23, index-linking of an earlier award
5) RUB 185,746.31 in redundancy payment, index‑linking of an earlier award
Apparently, not enforced to date
In June-July 2006 the respondent company’s several assets, including boiler plants, were withdrawn by the owner (the local administration) and transferred to the local treasury or other legal entities. On 17/01/2007 the respondent company was declared insolvent, the insolvency proceedings started.
An independent audit group found indications of deliberate insolvency in the owner’s actions and prepared a report on the matter. On 18/04/2007 criminal proceedings were brought on suspicion of unlawful actions during the insolvency. They were later discontinued for the lack of the corpus delicti.
The company sued the owner in subsidiary liability proceedings). On 13/05/2009 the Commercial Court of the Komi Republic rejected that action, having found that the owner acted without an intention to cause the company’s insolvency when transferring the assets.
On 16/06/2009 the company was liquidated.
The applicant brought subsidiary liability proceedings against the owner. On 24/02/10 the Pechora Town Court rejected the applicant’s claim as unfounded (as upheld on 08/04/10 by the Supreme Court of the Komi Republic). According to the applicant, the owner refused to produce a copy of the audit report (see above) to the courts.
The applicant sued the Government of the Komi Republic in the subsidiary liability proceedings, but his action was rejected as he did not have competence to introduce such an action and, moreover, his claim was unfounded (16/08/2012, Supreme Court of the Komi Republic).
He claimed repayment of the judgment debt by the Ministry of Finance. By the appeal judgment of 10/06/13 the Supreme Court of the Komi Republic rejected his action as lodged outside the 3-year time-limit set out in law.
36888/13
03/05/2013
Vladimir Vasilyevich MENSHIKOV
08/09/1945
Shchelyaur
1) Justice of the Peace of Privokzalnyy Court Circuit of Pechora
31.05.2007
Apparently, 10 days later
2) Pechora Town Court 12.01.2009
Apparently, 10 days later
Municipal Unitary Enterprise for Housing and Communal Services (MUP "Pechorazhilkomhoz"or “MUP PZHKH”) of Pechora, the Komi Republic
Sphere of operation: in particular, housing and communal services in the area, heating supply
1) RUB 638,616.77 of the pay salary due for the period from 01/01/2005 until 31/12/2006
2) RUB 24,524.63 of the salary due for the sixth month of employment
Apparently, not enforced to date
In 2006 the owner (the local administration) withdrew the company’s several assets and transferred them either to the local treasury or to other legal entities.
On 17/01/2007 the respondent company was declared insolvent and the liquidation proceedings started.
The company sued the owner (local administration) in subsidiary liability proceedings). On 13/05/2009 the Commercial Court of the Komi Republic rejected that action, having found that the owner acted without an intention to cause the company’s insolvency when transferring the assets.
On 16/06/2009 the company was liquidated.
The applicant brought subsidiary liability proceedings arguing, inter alia, premeditated insolvency. On 21/06/2012 the Pechora Town Court rejected the applicant’s claim against the owner (the district administration) in the subsidiary liability proceedings as unfounded (as upheld on 03/09/2012 by the Supreme Court of the Komi Republic).
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