Communicated on 3 April 2017
THIRD SECTION
Applications nos. 66035/09 and 1504/10
Galina Yevgenyevna KUDRYASHOVA against Russia
and Valeriy Mikhaylovich TOMILIN against Russia
lodged on 30 November 2009 and 8 December 2009 respectively
STATEMENT OF FACTS
The applicants are two Russian nationals living in St Petersburg. Their personal details are set out in Appendix I.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Information on the applicants’ former employer and its restructuring as an open joint-stock company in 2007
(a) The employer company
The applicants are former employees of the Kronstadt Marine Plant (Kronshtadtskiy morskoy zavod – “the Marine Plant”), one of the oldest and largest shipyards in Russia, incorporated between 1997 and 2015 as a State unitary enterprise (“the FGUP”) of the Russian Ministry of Defence. It primarily provided various services to that Ministry, such as maintaining and repairing military ships and their weaponry, and shipbuilding for the Russian Navy. The FGUP had “a right of economic control” (право хозяйственного ведения) over the assets allocated to it in order to carry out its statutory activities (for further details on the legal status of unitary enterprises in Russia, see in so far as relevant, Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, §§ 55-75, 9 October 2014).
At some point insolvency proceedings were opened in respect of the FGUP. On 14 March 2005 the St Petersburg Commercial Court put the FGUP into external administration (внешнее управление) for a period of eighteen months and appointed an administrator (внешний управляющий).
(b) Transfer of assets to the newly-created OAO in 2007, its annulment and the applicants’ employment
By a decision of 25 December 2006 the external manager acting on behalf of the FGUP created the open joint-stock company Kronstadt Marine Plant Awarded the Order of Lenin (Kronshtadtskiy morskoy ordena Lenina zavod – “the OAO”) and transferred the major assets allocated under the FGUP’s economic control to the OAO as a capital contribution, with effect from 1 March 2007.
The FGUP employees, including the applicants, were accordingly registered as working for the OAO from that later date.
On 9 February 2007 the FGUP’s assets were transferred to the OAO.
The military prosecutor’s office challenged the decisions to create the OAO and transfer the assets, claiming that they were unlawful and void ab initio.
On 19 October 2007 the St Petersburg Commercial Court allowed the prosecutor’s action and held that before transferring the assets to the OAO the external manager had failed to comply with a mandatory requirement, namely to obtain an expert opinion from a specialist Federal State Assets Management Agency. The court declared the creation of the OAO and the transfer null and void, and ordered the assets to be returned to the FGUP.
On 29 April 2008 the Commercial Court of the North-West Circuit upheld the judgment at final instance.
In May 2008 the OAO advised the applicants of their potential dismissal and on 21 August 2008 dismissed them from their jobs.
The applicants submit that between August and November 2008 the FGUP refused to reinstate them in their jobs and to allow them access to their workplace.
2. Proceedings against the OAO
(a) Court writs in the applicants’ favour against the OAO
Shortly after the annulment of the above-mentioned transaction, a local prosecutor brought proceedings against the OAO on behalf of the applicants seeking unpaid wages for the period June to August 2008, as well as severance pay. On the dates listed in Appendix I the Justice of the Peace of the 110th Court Circuit of St Petersburg awarded the applicants the amounts claimed in separate court writs (судебные приказы). They took effect ten days later but have never been enforced.
(b) Application for the FGUP to substitute the debtor
In 2008 the applicants applied to have the debtor in the domestic proceedings (the OAO) substituted. They argued that, since the creation of the OAO had been declared null and void and all the assets were to be returned to the FGUP, the latter was liable to pay the judgment debts made against the OAO.
On the dates specified in Appendix I the Justice of the Peace of the 110th Court Circuit of St Petersburg allowed the application at first instance. She held that as the transaction had been voided, no transfer of rights or obligations to the OAO had taken place, and therefore the transfer of the employer’s rights and obligations to the OAO had also been unlawful. The Justice of the Peace applied a civil-law provision on legal succession and ordered the FGUP to pay the OAO’s debts under the judgments.
On various dates in 2009 listed in Appendix I the Kronstadt District Court of St Petersburg quashed the above-mentioned decisions. It found that the annulment of the decisions to create the OAO and transfer assets had not given rise to legal succession. The court specified that the transfer of assets from the OAO to the FGUP had not automatically resulted in the debts being transferred. The court also observed that the decision on legal succession had been issued in the absence of the respondent’s representatives, in violation of its procedural rights.
(c) Adjustment proceedings in case of Mr Tomilin
In case of Mr Tomilin, on 17 June 2010 the same Justice of the Peace granted the claim to adjust the awards by applying the consumer price index and to increase it by 6,947 Russian roubles (RUB). The Justice of the Peace increased the initial award from RUB 40,026 to RUB 46,974 (1,022 euros (EUR)). The increased award remained unpaid.
(d) Insolvency proceedings in respect of the open joint-stock company
On 13 February 2009 the St Petersburg Commercial Court declared the OAO insolvent and the liquidation process began. On 29 March 2012 the same court discontinued the insolvency proceedings and ordered the OAO’s liquidation. The creditors’ claims which had not been satisfied during the liquidation process, including the applicants’ claims, were considered as settled.
On 31 May 2012 the OAO’s liquidation was recorded in the Register of Legal Entities, and it ceased to exist.
3. Judicial awards in the applicants’ favour against the FGUP and their enforcement
In 2008 the applicants brought proceedings against the FGUP challenging their dismissal, requesting to be allowed to work on 21 August 2008, the date of their actual re-employment. They also claimed unpaid wages and other work-related payments from 1 March 2007.
On 5 December 2009 by separate decisions the Kronstadt District Court granted their claims in part. Pursuant to the annulment of the decisions to create the OAO and to transfer the assets thereto, the court reinstated them in their jobs with the FGUP as of 21 August 2008, the date following their dismissal from the OAO. The court further reiterated that the restructuring of the FGUP as the OAO had been rendered void in court. Accordingly, the OAO had not acquired ownership of the FGUP’s assets, and the transfer of the employer’s rights and duties from the FGUP to the OAO had been unlawful. The applicants’ employment with the FGUP had therefore not actually been discontinued. The court declared void the external manager’s several decisions pertaining to various aspects of the applicant’s re-employment with the OAO. It further awarded the applicants salary arrears for the period between 21 August 2008 and 5 December 2009 (see Appendix II for the amounts awarded), and rejected the remainder of the claims. In particular, it refused to order the FGUP to pay the severance pay and unpaid wages for June to August 2008, as those claims had already been allowed in the proceedings against the OAO (see above).
On 24 November 2010 the judgment debts were paid to the applicants in full.
The applicants’ attempts to obtain reopening of their cases on account of the newly established circumstances were unsuccessful.
Subsequent developments
In April 2009 the applicants were dismissed from the FGUP.
In 2009 the Commander-in-Chief of the Russian Navy advised the FGUP’s employees’ representatives that the Marine Plant was included in a list of organisations of strategic importance entitled to receive a subsidy from the federal budget between 2008 and 2010 in order to resolve the FGUP’s financial difficulties. In 2010 the insolvency proceedings in respect of the Marine Plant were discontinued owing to a friendly settlement between the FGUP and its creditors, which was approved by the Commercial Court of St Petersburg and the Leningrad Region on 25 February 2010. It also appears that the Marine Plant was in operation until 2015, when it was restructured and transformed into a different legal entity (a newly created joint-stock company). On 20 April 2015 the restructuring of the company was recorded in the Register of Legal Entities, and the FGUP ceased to exist.
COMPLAINTS
The applicants complain under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about delayed enforcement of the judgments in their favour listed in Appendix II given against the FGUP.
They further complain under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about non-enforcement of the court writs specified in Appendix I in their favour given against the OAO.
QUESTIONS TO THE PARTIES
1. Are the debts owed by the Federal State Unitary Enterprise (the FGUP) to the applicant imputable to the State within the meaning of Article 34 of the Convention? The Government are invited to comment on whether the debtor company enjoy sufficient operational and institutional independence from the State. Were the powers of control provided for in domestic law actually exercised by the authorities in the present case (see Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, §§ 193-224, 9 October 2014)?
2. Have the final judgments in the applicants’ favour listed in Appendix II been fully and timeously enforced by the FGUP? If not, has there been a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention (see Liseytseva and Maslov, cited above)?
3. Are the debts of the joint-stock company OAO Kronshtadtskiy morskoy ordena Lenina zavod attributable to the State? In the alternative, has the State provided due assistance to the applicants in obtaining enforcement of the judicial awards given against the joint-stock company?
4. Have the awards made by the court writs in the applicants’ favour listed in Appendix I against the OAO Kronshtadtskiy morskoy ordena Lenina zavod, (as adjusted, if the adjustment took place) been fully and timeously enforced? Has there been a violation of Article 6 of the Convention and Article 1 of Protocol No.1 to the Convention on account of non-enforcement of the judgments in the applicants’ favour issued against the joint-stock company?
5. Did the applicants have an effective domestic remedy in respect of their non-enforcement complaints against the OAO, as required by Article 13 of the Convention?
Appendix
Proceedings against the OAO
No.
Column 1
Application No.
Column 2
Applicant
Column 3
Court writs by the Justice of the Peace of the 110th Court Circuit of St Petersburg
Column 4
Domestic award
Column 5
Request to substitute the debtor (the OAO) by the FGUP
66035/09
Galina Yevgenyevna KUDRYASHOVA
17/09/1954
23/10/2008
RUB 21,784
(EUR 634)
25/12/2008 granted (1st instance)
11/06/2009 quashed on appeal, request disallowed
1504/10
Valeriy Mikhaylovich TOMILIN
08/01/1946
09/10/2008
RUB 40,026
(EUR 1,124)
25/12/2008 granted (1st instance)
09/06/2009 quashed on appeal, request disallowed
APPENDIX II
Proceedings against the FGUP
No.
Column 1
Application No.
Column 2
Applicant
Column 3
Nature of the proceedings
Column 4
Domestic court
Column 5
Date, final on
Column 6
Domestic award
66035/09
KUDRYASHOVA
Unpaid salary between 21/08/ 2008 and 05/12/2008
Kronstadt District Court of St Petersburg
05/12/2008
21/01/2009
RUB 26,912
(EUR 634)
1504/10
TOMILIN
Unpaid salary between 21/08/2008 and 05/12/2008
Kronstadt District Court of St Petersburg
05/12/2008
21/01/2009
RUB 41,981
(EUR 971)
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