Last Updated on May 11, 2019 by LawEuro
THIRD SECTION
DECISION
Application no. 38784/11
Aleksandr Gennadyevich MARCHENKO
against Russia
The European Court of Human Rights (Third Section), sitting on15 November 2018 as a committee composed of:
Alena Poláčková, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Liv Tigerstedt, Acting Deputy Section Registrar,
Having regard to the above application lodged on 27 May 2011,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
The case originated in an application (no. 38784/11) against Russia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr AleksandrGennadyevichMarchenko (“the applicant”), on 27 May 2011.
The applicant’s complaints under Articles 6 § 1 and 13 of the Convention and Article 1 of the Protocol No. 1 concerning the non-enforcement or delayed enforcement of domestic decisions given against a unitary enterprise (MUP) and the lack of any effective remedy in domestic law were communicated to the Russian Government (“the Government”).
A. The circumstances of the cases
The facts of the case, as submitted by the parties, may be summarised as follows.
On 3 November 2010 and 25 October 2010 the Svobodnenskiy Town Court of the Amur Region ordered the municipal unitary enterprise (MUP “KommunalnyyeUslugi” (communal services)) to pay the applicant certain amounts in compensation for non-pecuniary damage and allowances. The judgments came into force on 19 November 2010 and 17 December 2010respectively.
On 19 May 2011 the municipal unitary enterprise was liquidated.
The judgments remain unenforced.
B. Relevant domestic law
The relevant provisions and case-law governing unitary companies with the right of economic control are described in the judgments of Liseytseva and Maslovv. Russia (nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014), and Samsonov v. Russia (dec.) (no. 2880/10, 16 September 2014).
THE LAW
The applicant complained of the non-enforcement of the domestic judgments in his favour and of the lack of any effective remedy in domestic law. These complaints fall to be examined under Article 6 § 1 and Article 13 of the Convention and on Article 1 of Protocol No. 1, which in relevant parts read as follows:
Article 6 § 1
“In the determination of his civil rights and obligations … everyone is entitled to a fair … hearing … by [a] … tribunal …”
Article 13
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
Article 1 of Protocol No. 1
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government submitted that the State could not be held responsible for the debts of the company as the company did not perform any public function. They further argued that the company’s liquidation had not been caused by the acts of its founder, the owner of its assets, or of any other body authorised to issue instructions binding for the company.
The Court observes that the relevant case-law regarding the State’s responsibility for the debts of unitary enterprises with the right of economic control is summarised in the judgment of Liseytseva and Maslov (cited above, §§ 183‑92) and the decision of Samsonov(cited above). The Court held that, in order to decide on the operational and institutional independence of a given municipal unitary enterprise with the right of economic control, the Court had to assess the nature of the enterprise’s functions and the degree of actual State or municipal authorities’ involvement in the management of the enterprise’s assets.
Turning to the present case, the Court notes that the company was incorporated as a municipal unitary enterprise under domestic law. The Court further notes that the parties did not provide any evidence that the company had exercised any public functions or provided services of vital importance. Nor did they maintain that the State had interfered with the company’s activities, either by issuing compulsory instructions or ordering the transfer of its assets to other companies (see, by contrast, Liseytseva and Maslov, cited above, §§ 208‑19; for a similar case, see Stupin and Others v. Russia (dec.), no. 43121/05, 22 September 2015).
In the light of the above, the Court finds that the company enjoyed sufficient institutional and operational independence from the authorities. Accordingly, the decisions in the applicant’s favour should be regarded as having been issued against a private company (see Samsonov, cited above, § 76).
The Court further notes that the applicant did not argue that the alleged non-enforcement was due to any defects on behalf of the enforcement authorities.
In view of the above, the Court finds that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 December 2018.
Liv Tigerstedt Alena Poláčková
Acting Deputy Registrar President
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