Communicated on 30 March 2016
THIRD SECTION
Application no 42011/07
Vitaliy Nikolayevich NADOLINSKIY against Russia
and 3 other applications
(see list appended)
STATEMENT OF FACTS
The applicants in these four cases are five Russian nationals living in Taganrog, Rostov Region. Their names and dates of birth are listed in the appendix. The facts of the case, as submitted by the applicants, may be summarised as follows.
On the dates indicated below the Taganrog Town Court of the Rostov Region issued judgments ordering the Zhilishno-Ekspluatatsionnoe Upravlenie municipal unitary enterprise (Housing and Exploitation Department) of Taganrog (hereinafter “the MUP”), to perform various pieces of construction work in the apartment blocks the applicants were living in. The judgments entered into force on the dates listed below. In each case, the bailiffs’ service initiated the enforcement proceedings and took various measures to accelerate the enforcement of the judgments (issued warnings, imposed fines, and so forth). The judgments have not been enforced to date.
The MUP was founded by the town administration of Taganrog. It supplies hot water and housing and communal services in the area; further, it is responsible for the management, renovation and maintenance of the municipal housing stock. It has “the right of economic control” over the assets allocated to it by the owner in order to carry out its statutory activities. It appears that since January 2014 insolvency proceedings have been pending in respect of this company. The company has not been liquidated and continues to operate.
COMPLAINTS
The applicants complain about the non-enforcement of the judgments in their favour. They may be further understood to complain about the lack of an effective remedy in respect of their non-enforcement grievance. They refer to the domestic law provisions, and two of them further refer to Article 6 of the Convention.
QUESTIONS TO THE PARTIES
1. Have the final judgments in the applicants’ favour been fully and timeously enforced?
2. Are the debts owed by the municipal unitary enterprise to the applicants imputable to the State within the meaning of Article 34 of the Convention? The Government are invited to comment on whether the debtor company enjoyed 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). Did the company exercise a public duty and was it, by virtue of its functions, placed under the actual strict control of the authorities? In any event, what was the degree of the State or municipal authorities’ actual involvement in the management of the company’s assets, including – but not limited to – disposal of the assets, the authorities’ conduct in the liquidation and restructuring proceedings, giving binding instructions or other circumstances indicating the actual degree of State control in this particular case? Were the powers of control provided for in domestic law actually exercised by the authorities in a given case (see Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, §§ 193-203 and §§ 204-24, 9 October 2014, and Samsonov v. Russia (dec.), no. 2880/10, 9 October 2014)? The Government are invited to submit a copy of the debtor company’s articles of association, as well as to provide information on the progress of the insolvency proceedings.
3. If the judgments in the applicants’ favour have not been fully and timeously enforced and the municipal enterprise’s 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?
4. If the judgments in the applicants’ favour have not been fully and timeously enforced and the respondent municipal enterprise’s debts are not imputable to the State (see question 2 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)?
5. Did the applicants have at their disposal an effective remedy in respect of the alleged violation of Article 6 of the Convention on account of the non-enforcement complaints, as required by Article 13 of the Convention? If in the affirmative, did the applicants exhaust the domestic remedies in respect of their non-enforcement complaint?
\* MERGEFORMAT [A1]APPENDIX
No.
Application no.
Lodged on
Applicant name
date of birth
place of residence;
Date of the judgment and its entry into force
Enforcement status
Domestic award
Other relevant information
1.
42011/07
Vitaliy Nikolayevich NADOLINSKIY
(date of birth not provided)
Taganrog
(a) 12/12/2006
23/12/2006
(b) 09/09/2006
29/08/2006
(a), (b)
apparently, not enforced to date
(a) To perform various apartment block repairs, i.e. to repair the roof, apartment building entrance, service pipes; to pay the applicant RUB 2,062 (approx. EUR 59) in non‑pecuniary damage, court expenses
(b) To perform various apartment block repairs, i.e. to replace a boiler and the pipes system, to clean and to repair the basement; to pay the applicant RUB 5,921 (EUR 231)
- Enforcement proceedings opened on 26/10/06. The bailiffs issued warnings (07/05/07); imposed fines of the debtor, but to no avail.
1.
42238/07
Yuriy Akimovich KUCHERENKO
1941
Taganrog
27/02/2006
03/04/2006
apparently, not enforced to date
To ensure due heating and hot water supply to the applicant’s flat, to pay RUB 18,133 (approx. EUR 534)
- The bailiffs on several occasions issued warnings, imposed fines (at least 4 times in 2006) on the debtor company and advised the applicant on the progress of the enforcement proceedings.
- On 20/04/2009 and 19/02/2010 (final on 09/03/2010) Justice of the Peace of the 3rd Court Circuit of Taganrog ordered the debtor company to pay the applicant various amounts in compensation for poor quality of heating and water supply and non-pecuniary damage (no reference to the initial judgment in the texts of the decisions).
- It appears that since an unspecified date the management of the apartment block and, in particular, the obligation to ensure water supply has been ensured by OOO E., a private company. On 16 September 2013 the Justice of the Peace of the 11th Court Circuit of Taganrog ordered the company to pay the applicant various amounts in respect of non-pecuniary damage, reimbursement of paid communal charges and compensation of damage on account of the failure to duly ensure uninterrupted hot water supply.
3.
47242/07
01/10/2007
Tatyana Borisovna POPOVA
1972
Taganrog
16/09/2009,
Ten days later
apparently, not enforced to date
To conduct various maintenance and reparation works in an apartment block where the applicant’s flat was situated and to pay the applicant RUB 7,299 (EUR 161) of compensation
- By an agreement of 16/12/2009 the respondent enterprise transferred the obligation to manage the apartment block to OOO Ts., a private property management company. At some point the MUP requested the domestic court to change the respondent party to OOO Ts., since the latter was competent to manage the apartment block at the material time. On 20/01/2011 the Taganrog Town Court rejected the request, having found that the agreement of 16 December 2009 did not concern the transfer of the obligations arising out of the domestic judgment of 16 September 2009. The decision was not appealed against.
4.
40048/09
22/06/2009
Lidiya Vladimirovna CHAYKOVSKAYA
1939
Taganrog
Lyudmila Mikhaylovna CHVILEVA
1940
Taganrog
11/02/2006
21/03/2007
remains unenforced in part
To replace a boiler and to repair the basement of applicants’ house, to pay RUB 5,083 (EUR 146) to Ms Chvileva and RUB 4,865 (EUR 140) to Ms Chaykovskaya in respect of non-pecuniary damage
- Enforcement proceedings opened, the bailiffs’ several attempts to obtain execution proved futile.
- On 09/07/09 (final) domestic courts refused to modify the way of execution.
- On 12/10/10 (final) the applicants’ a claim under the Compensation Act rejected.
[A1]1ITMarkAppendix DO NOT DELETE
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