SECOND SECTION
Applications nos 57691/09 and 19719/10
JKP VODOVOD KRALJEVO against Serbia
and JKP VODOVOD KRALJEVO (II) against Serbia
lodged on 22 September 2009 and 1 April 2010 respectively
STATEMENT OF FACTS
The applicant is the same in both cases, namely, a statutory communal corporation JKP Vodovod Kraljevo (“the applicant company”). It is represented before the Court by its Director, Mr M. Romčević, who is entitled to act on behalf of this company.
The facts of the present cases, as submitted by the applicant company, may be summarised as follows.
A. The circumstances of cases
Since the socially-owned companies “Magnohrom” (“the first debtor”) and “Fabrika vagona Kraljevo” Holding AD (“the second debtor”) failed to pay the invoices for the services provided by the applicant company, the latter filed enforcement requests with the Commercial Court in Kraljevo on 18 October 2004 and 9 December 2004, respectively.
By 31 January 2005 and on 9 December 2004 respectively, the Commercial Court ordered direct enforcement of the invoices (izvršenje na osnovu verodostojne isprave) of 36,177,456.76 dinars (“RSD”; Iv. 2736/04 as regards application no. 57691/09) and RSD 29,118,488.09 (Iv. 2969/04 as regards application no. 19719/10), together with the statutory interest accrued, and also ordered the respective debtors to pay RSD 200,000 each on account of enforcement costs.
It would appear that the first debtor’s bank account had been blocked as of 23 May 1997, and the second debtor’s bank account had been blocked between 1 January 2003 and 27 December 2007, and then again between 22 January 2008 and 21 January 2010, which rendered the enforcement in both cases impossible.
On 1 May 2005 and 30 July 2004, pursuant to the decision of the Privatisation Agency, the debtors were respectively subjected to restructuring/privatisation. In this respect, on 5 July 2005 and 12 August 2005, respectively, the applicant company duly submitted its outstanding claims to the Commercial Court.
On an unspecified date thereafter, in view of Article 20 of the Privatisation Act (see under C.3 below), the applicant company received the settlement proposals from the Privatisation Agency in respect of both the debtors’ outstanding obligations, but refused to sign them.
On 23 August 2007 and on 9 March 2007 the Privatisation Agency paid to the applicant company RSD 1,262,208.19 and RSD 154,392.12 respectively on account of the outstanding debts.
On 26 December 2007 the applicant company and the second debtor signed an agreement on the recognition of the outstanding debts and the manner in which they would be paid. However, the second debtor failed to fulfil its commitment.
It would appear that the debtors informed the Commercial Court about the restructuring/privatisation process and requested the discontinuation of the enforcement.
On 13 February 2009 and 7 September 2009 respectively, the Commercial Court terminated the enforcement proceedings.
Following the subsequent appeals by the applicant company, on 16 March 2009 and 2 October 2009 respectively, the competent chamber of the same court upheld these decisions.
On 23 April 2009 and 5 November 2009 respectively, the applicant company lodged separate appeals with the Constitutional Court. The proceedings appear to have been pending before the Constitutional Court since then.
B. The applicant company’s and the debtors’ status
The applicant company is a statutory corporation entrusted with drinking water purification and distribution, as well as waste water disposal and treatment. It was founded in 1990 by decision of the local self-government of Kraljevo.
The debtor in application no. 57691/09 was, at the relevant time, a company predominantly consisting of socially-owned capital (“socially-owned company”). On 21 July 2006 it was privatised. However, this contract was annulled on 18 December 2007 due to the buyer’s failure to fulfil its obligations. The debtor’s capital was transferred to the Share Fund (Akcioni fond; see under C.6 below) of the Republic of Serbia, which appointed a temporary manager of the capital pending further privatisation.
The debtor in application no. 19719/10 is Koncern Fabrika Vagona AD u restruktuiranju, which was, at the relevant time, also a socially-owned company. The debtor was sold in April 2006 to a Ukrainian corporation. It would appear that this contract was annulled on 14 January 2010. On 18 January 2010 the debtor’s capital was transferred to the Share Fund of the Republic of Serbia. On 21 January 2010 the Privatisation Agency initiated restructuring of the debtor company, while the Share Fund appointed a temporary manager of the capital pending further privatisation.
Thus, as of the present date, it would appear that both debtors are predominantly comprised of State-owned capital.ITMarkFactsComplaintsEND
QUESTIONS as regards both cases
1. The Government are invited to clarify and document the legal status of the applicant company, as well as whether it could be subjected to regular insolvency proceedings.
2. Can the applicant company be considered to be a “non-governmental organisation” within the meaning of Article 34 of the Convention?
In particular:
(i) Did the applicant 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 (see Radio France and Others v. France (dec.), no. 53984/00, ECHR 2003-X (extracts), with further references; see also, by way of contrast, Novoseletskiy v. Ukraine, no. 47148/99, § 82, ECHR 2005-II (extracts))? 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-V)?
(ii) Did the applicant company enjoy sufficient operational and institutional independence from the State (see, mutatis mutandis, Consejo General de Colegios Oficiales de Economistas de España v. Spain, nos. 26114/95 and 26455/95, Commission decision of 28 June 1995, DR 82-B and RENFE v. Spain, no. 35216/97, Commission decision of 8 September 1997, DR 90-B; Radio France and Others v. France, no. 53984/00, ECHR 2004‑II; Österreichischer Rundfunk v. Austria, no. 35841/02, 7 December 2006; and R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, 15 January 2008)? In particular, to what extent were the applicant company’s assets controlled and managed by the State (compare to, in so far as relevant, Khachatryan v. Armenia, no. 31761/04, § 51, 1 December 2009)?
3. Has there been a violation of Article 6 § 1 of the Convention and/or Article 1 of Protocol No. 1? In particular, do the impugned partial non-enforcements amount to a violation of one or both of these provisions (see, mutatis mutandis, Mykhaylenky and Others v. Ukraine, nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and 42814/02, ECHR 2004‑XII; see also Malinovskiy v. Russia, no. 41302/02, ECHR 2005, and Marčić and Others v. Serbia, no. 17556/05, 30 October 2007)?
4. Did the applicant company have at its disposal an effective domestic remedy for its complaints under Article 1 of Protocol No. 1 and Article 6 of the Convention, as required by Article 13 of the Convention?
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