THIRD SECTION

DECISION

Application no s . 17781/10 and 42283/11 Sergey Nikolayevich PONOMAREV against Russia and Gennadiy Ivanovich GRIB against Russia (see appended table)

The European Court of Human Rights (Third Section), sitting on 15 February 2018 as a Committee composed of:

Luis López Guerra, President, Dmitry Dedov , Jolien Schukking , judges,

and Liv Tigerstedt, Acting Deputy Section Registrar,

Having regard to the above applications lodged on the dates indicated in the appended table,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

The list of applicants and the relevant details of the application s are set out in the appended table.

The applicants ’ 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 unitary enterprises (GUPs, MUPs) 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 cases, as submitted by the parties, may be summarized as follows.

1. Application 17781/10

On 25 April 2005 the Oktyabrskiy District Court of Omsk (hereafter “District Court”) ordered the federal state unitary enterprise “ Polet ” ( ФГУП ПО « Полет » ) to provide the applicant with a flat. The judgment became final on 5 May 2005.

As the judgment remained unenforced over months the applicant filed a complaint against bailiffs. He sought the discontinuation of the enforcement proceedings as this would have allegedly enabled him to sue the State for the company ’ s failure to execute the judgment.

On 13 December 2005 the District Court dismissed the complaint, having found that the bailiffs ’ refusal to close the proceedings had been lawful. The company had assets and the judgment in the applicant ’ s favour was due to be executed after the claims of other creditors of the company were satisfied. On 1 February 2006 the Omsk Regional Court upheld the decision on appeal.

The judgment was enforced on 5 August 2010.

2. Application no. 42283/11

On 12 December 2005 the Guryevskiy District Court of the Kaliningrad Region (“the District Court”) ordered the federal state unitary enterprise “ Kaliningradavia ” ( ФГУП « Калининградавиа » ) to provide the applicant with housing. On 5 April 2005 the judgment was upheld on appeal.

On 18 April 2008 the District Court modified the mode of execution of the judgment. The debtor company was ordered to pay the applicant 1,271,298 Russian roubles instead of providing an apartment. The decision came into force on 25 June 2008.

On 18 August 2010 the Federal Agency for State Property Management ordered the dissolution of the debtor company and, on 8 November 2010, a liquidation committee was assigned.

On 7 June 2011 the bailiffs terminated the enforcement proceedings in respect of the applicant due to the liquidation of the debtor organisation.

As submitted by the Government, the liquidation proceedings are still pending.

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 Maslov v. 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

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 and 13 of the Convention and Article 1 of the Protocol No. 1 to the Convention

The applicants complained of the non-enforcement of domestic decisions given in their favour . Mr Grib a lso complained about the lack of any effective remedy in domestic law. The applicants relied on Article 6 § 1 and Article 13 of the Convention, and on Article 1 of Protocol No. 1 , which 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 in respect of the application by Mr Ponomarev , no. 17781/10, that it was similar to case no. 15948/04 (see Kuznetsov and Gorbacheva v. Russia ( dec. ), nos. 15948/04 and 30610/08 , 11 October 2016), and was inadmissible on the same grounds. The Government further submitted that in the application by Mr Grib , no. 42283/11, the liquidation proceedings in respect of the company had not been completed, and, thus, the applicant still had an opportunity to submit his claims in accordance with the judgment in his favour.

Mr Ponomarev reiterated his complaints, arguing that the company had been a state company in the past, and that the applicant ’ s complaints about the bailiffs ’ services had been dismissed by the domestic courts in 2006. Mr Grib did not comment on the Government ’ s submissions.

The relevant case-law regarding the State ’ s responsibility for the debts of unitary enterprises with the right of economic control is summarized 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 companies were incorporated as federal state unitary enterprises under domestic law. The Court further notes that the parties did not provide any evidence that the companies had exercised any public functions or provided services of vital importance. Nor did they maintain that the State had interfered with the companies ’ 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 Razina and Others v. Russia ( dec. ), no s . 43121/05 and 10 others, 22 September 2015). The Court notes that the submissions by Mr Ponomarev about the enterprise concern its predecessor and are related to the period before the date of the judgment in the applicant ’ s favour .

In the light of the above, the Court finds that the companies enjoyed sufficient institutional and operational independence from the authorities. Accordingly, the decisions in the applicants ’ favour should be regarded as having been issued against a private company (see Samsonov , cited above, § 76).

The Court further notes that the applicants did not argue that the alleged non-enforcement was due to any defects on behalf of the enforcement authorities (see Kuznetsov and Gorbacheva , cited above, §§ 32-35) . The Court further observes that a possibility still remains for Mr Grib to claim the debt under the judgment in his favour.

In view of the above, the Court finds that the applicants ’ 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,

Decides to join the applications;

Declares the application s inadmissible.

Done in English and notified in writing on 8 March 2018 .

Liv Tigerstedt Luis López Guerra Acting Deputy Registrar President

APPENDIX

No.

Application no.

Date of introduction

Applicant name

Date of birth

Representative name

Location

17781/10

25/12/2009

Sergey Nikolayevich Ponomarev

24/09/1959

Deryabina Margarita Gennadyevna

Omsk

42283/11

31/05/2011

Gennadiy Ivanovich Grib

30/08/1965