THIRD SECTION
DECISION
Applications nos. 9430/06 and 29800/16
Natalya Vladimirovna TUPITSINA against Russia
and Lyudmila Pavlovna BABOSHINA against Russia
The European Court of Human Rights (Third Section), sitting on 6 March 2018 as a Committee composed of:
Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above applications lodged on 13 January 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Ms Natalya Vladimirovna Tupitsina and Ms Lyudmila Pavlovna Baboshina, are Russian nationals, who were born in 1971 and 1946 respectively, and live in Kurgan. They were represented before the Court by Ms S.R. Mukhambetova, a lawyer practising in Yekaterinburg.
The Russian Government (“the Government” ) were represented initially by Mr G. Matyushkin , the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 26 November 2003 the applicants’ employer, FGUP Kurganpribor (ФГУП «Курганприбор», was declared bankrupt. The insolvency proceedings were initiated in respect of the company.
On 28 April 2005 the Justice of the Peace of the 44th Court Circuit of the city of Kurgan of the Kurgan Region ordered FGUP Kurganpribor to pay the applicants certain amounts in salary arrears and compensation for non‑pecuniary damage. The judgment became final and enforceable on 12 May 2005.
On 11 May 2005 the Commercial Court of the Kurgan Region discontinued the proceedings against the liquidator. Those proceedings had been pending since March 2005 and concerned the decision of the liquidator to qualify the employees’ claims for pecuniary and non-pecuniary damage as the fifth priority claims. The complaint against that decision lodged on behalf of the applicants had been rejected as lodged by an unauthorised person.
On 22 June 2005 the insolvency proceedings in respect of the company were completed, and the company was liquidated.
On 27 June 2005 the information on the company’s liquidation was introduced to the Unified State Register of Legal Entities (Единый государственный реестр юридических лиц).
On 28 July 2005 the Commercial Court of the Kurgan Region once again discontinued the above-mentioned proceedings against the liquidator on the ground that one of the parties, i.e. the company, had been liquidated.
It appears that the judicial decision in favour of the applicants has not been fully enforced.
COMPLAINTS
The applicants complained under Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about the non-enforcement of judgments in their favour.
THE LAW
A. Joinder of the applications
Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
B. Complaints under Articles 6 § 1 of the Convention and Article 1 of the Protocol No. 1 to the Convention
The Court notes that the judgment in the applicants’ favour was not set aside by the domestic courts. Given that the judicial awards have remained unenforced to the present day, the situation complained of still exists. Nevertheless, the Court reiterates that a continuing situation may not postpone the application of the six-month rule indefinitely (see Sokolov and Others (dec.), nos. 30859/10 and 6 others, § 31, 14 January 2014, with further references). While there are obvious distinctions as regards different continuing situations (ibid.), the Court considers that the applicant must, in any event, introduce his or her complaint “without undue delay”, once it becomes apparent that there is no realistic hope of a favourable outcome for or progress in his complaints at the domestic level in the foreseeable future (ibid.; see also, Voronkov v. Russia, no. 39678/03, § 38, 30 July 2015, with further references). In Bichenok v. Russia the Court found, in the context of the non-enforcement of pecuniary awards made against a unitary enterprise with the right of economic control, that the applicant could have had a realistic hope of progress in enforcement of the judgment, or a favourable outcome for her claims at the domestic level as long as the insolvency proceedings were ongoing (see, in so far as relevant, Bichenok v. Russia (dec.), no. 13731/08, § 23, 31 March 2015).
The insolvency proceedings in respect of the debtor unitary enterprise in the present case ended on 22 June 2005, and the debtor company was liquidated without any legal successor or remaining bankruptcy estate.
The applicants did not argue that they could not learn about the decision of 22 June 2005 concerning the company’s liquidation from the date it was taken, or of the fact that the relevant entry had been made in the Unified State Register of Legal Entities. Instead, they considered that the six-month period should be counted from 28 July 2005, i.e. the date when the proceedings against the liquidator were discontinued.
The Court finds that from 22 June 2005 it should have become apparent to the applicants that the debtor company was no longer in a position to honour the relevant judgments in their favour (see Bichenok, cited above, § 23, and Voronkov, cited above, § 39).
The Court further notes that since 22 June 2005 the applicants did not attempt to initiate any kind of domestic proceedings which could have brought them closer to their goal, that is, either the enforcement of the judgments in their favour, or, alternatively, engaging the authorities’ responsibility for the failure to properly assist them in the enforcement of the judicial award (see, by contrast, Voronkov, cited above, §§ 42-45). In so far as they refer to the proceedings which ended on 28 July 2005, the Court observes that those proceedings had already been pending for several months on the date of liquidation of the company. With the liquidation all the debts of the company were considered settled, and any proceedings against the liquidator had to be terminated and had no chances to success.
Thus, in the Court’s view, it should have become apparent to the applicants that from the day of the liquidation they had no available legal avenue at the domestic level whereby they could obtain full enforcement of the judgments in their favour.
The Court considers that the six-month period should be counted from 22 June 2005, i.e. the date of the commercial court’s decision to liquidate the company. Accordingly, the present complaints have been introduced out of time.
It follows that the application in this part must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 29 March 2018.
Fatoş AracıLuis López Guerra
Deputy RegistrarPresident
Full & Egal Universal Law Academy