Lexploria

Communicated on 9 February 2017

THIRD SECTION

Application no. 8023/04 Galina Nikolayevna ZEMCHENKOVA and others against Russia lodged on 29 January 2004

STATEMENT OF FACTS

The applicants are Russian nationals and live in St Petersburg. A list of the applicants is set out in the appendix.

A. The circumstances of the case

The facts of the case, as submitted by the applicants, may be summarised as follows.

The applicants sued the State Institution of St Petersburg State Inspectorate on Quality of the Ministry of Agriculture of Russia (« ГУ Санкт ‑ Петербургской государственной инспекции по качеству продукции Министерства сельского хозяйства РФ ») (hereinafter “debtor institution”).

On the dates set out below the domestic courts made pecuniary awards in the applicants ’ favour , to be paid by the debtor institution. The particulars of each judgment are summarised in the appended table.

On the dates listed in the Appendix the awards became enforceable.

It appears that the final judicial decisions in the applicants ’ favour have not been fully enforced.

On 19 January 2001 the Kuybyshevskiy District Court of St Petersburg granted the applicants ’ subsidiary liability claim against the Ministry.

B. Relevant domestic law

1. Civil Code

1. Before 1 September 2014 (the date of entry into force of Law no. 99 ‑ FZ of 5 May 2014, which amended the Civil Code) the status of institutions was regulated by Articles 120 and 296 of the Civil Code of Russia. After that date their status was set out in Articles 123.21 ‑ 123.22 of the same code. The content of those provisions is summarised below.

2. Institutions ( учреждения ) are non-profit organisations created by their owners for the performance of managerial, socio-cultural or other functions of a non-commercial character.

3. They have the right of operational control ( оперативное управление ) of property allocated to them by their owner. That means that they possess and use such property in accordance with the goals set for their activity and the purpose of the property, and, if not otherwise established by law, dispose of it with the approval of the property ’ s owner. The owner has the right to withdraw redundant property which is either not being used or which is not being used as intended and which it assigned to an institution or which was acquired by the institution using funds allocated to it by the owner for the acquisition of that property. The owner of the property has the right to make use of property withdrawn from the institution at its own discretion.

4. An institution may be created by an individual or a legal entity (a private institution), by federal or regional authorities (state institutions) or by local authorities (municipal institutions).

5. As of 8 May 2010 the Civil Code distinguishes between several types of state and municipal institution: autonomous ( автономное ), budget ‑ financed ( бюджетное ) or treasury ( казенное ) .

6. A treasury institution meets its debts with the funds at its disposal. If those funds are insufficient, the owner of the property bears subsidiary responsibility for those debts.

7. An autonomous institution meets its debts with all the property assigned to it for operational control, with the exception of immovable property and particularly valuable movable property assigned to it by the owner of that property or which was acquired by the autonomous institution with funds allocated to it by the owner. The owner of an autonomous institution ’ s property is not held responsible for that institution ’ s debts.

8. A budget-financed institution meets its debts using all the property it has by right of operational control, both assigned to it by the property ’ s owner and that which it acquired with income derived from profit-bearing activities. An exception applies to immovable property and to particularly valuable movable property assigned to the budget-financed institution by the owner of the property or acquired by the institution with funds allocated by the owner of the property. The owner of a budget-financed institution ’ s property is not held liable for the institution ’ s debts.

9 . Under Article 56 § 3 of the Civil Code (as in force before 5 May 2015) subsidiary liability for a legal entity ’ s obligations could be imposed on the owner of the legal entity ’ s property or on other persons who had a right to issue binding instructions to the legal entity or determine its actions in any other way, if the insolvency was caused by such persons, and if the legal entity ’ s assets proved to be insufficient.

2. Budget Code

10. Article 6 of the Budget Code of the Russian Federation contains a list of entities “in receipt of budget funds” ( получатели бюджетных средств ). The list includes, in particular, public institutions.

11. Under Article 161 of the Budget Code (as in force before 8 May 2010), a budget-financed institution is an organisation established by the Russian Federation, by a constituent subject of the Russian Federation or by a municipal entity for the performance of managerial, socio-cultural or other non-profit functions, whose activities are funded from the relevant budget. Organisations to which state or municipal property is allocated on the basis of the right of operational control, except for treasury enterprises ( « казенные предприятия ») and autonomous institutions, are considered as budget-funded institutions for the purposes of the Budget Code.

12. From 8 May 2010 the above-mentioned provision provides that a treasury institution is funded from the federal, regional or local budget. Articles 242.3-242.5 set out the methods for executing judicial decisions which order payments from federal, regional or local budgets for the debts of treasury institutions. In particular, they provide that the Federal Treasury has the right to freeze the bank accounts of a debtor institution which fails to execute a court decision or to seek additional funding if the debtor institution lacks the necessary funds. If an institution lacks the funds to fulfil its financial obligations, the federal, regional or local authority in charge of disbursing budget funds is responsible for the institution ’ s debts.

3. Compensation Act

13. Section 1(1) of Federal Law No. 68- FZ of 30 April 2010 (in force as of 4 May 2010) deals with compensation for violations of the right to a trial within a reasonable time or of the right to the enforcement of a judgment within a reasonable time (“the Compensation Act”). It entitles a party to bring a court action for compensation for a violation of the right to enforcement, within a reasonable time, of a domestic judgment establishing that a debt is to be recovered from the State budget.

14. By Ruling no. 130/64 of 23 December 2010, the Plenary Session of the Supreme Court and the Supreme Commercial Court of Russia jointly decided that the Compensation Act did not apply to claims for compensation for delayed enforcement of judgments against private individuals or organisations not in receipt of budget funds.

COMPLAINTS

The applicants complain, notably, under Articles 6 of the Convention and Article 1 of Protocol No. 1 to the Convention about delays in enforcement of the judgments in their favour . They also complain under Article 13 of the Convention that they did not have at their disposal an effective remedy in that respect.

QUESTIONS TO THE PARTIES

1. What was the status of the debtor institution before and after 8 May 2010? Has it been liquidated? If so, when and on what grounds?

2. Are the debts owed by the debtor institution to the applicants imputable to the State within the meaning of Article 34 of the Convention and, if so, to what extent (see, mutatis mutandis , Yavorivskaya v. Russia , no. 34687/02, § 25, 21 July 2005; see also Zhovner v. Ukraine , no. 56848/00, § 37, 29 June 2004; Piven v. Ukraine , no. 56849/00, § 39, 29 June 2004; Furman v. Russia , no. 5945/04, § 25, 5 April 2007; Denisenkov v. Russia , no. 40642/02, §§ 53-57, 22 September 2005; and Gerasimova v. Russia ( dec. ), no. 24669/02, 16 September 2004)? In particular, was the debtor institution owned and funded by the authorities?

3. Have the final judgments in the applicants ’ favour (tabulated below) been enforced fully and in a timely manner? If not, has this violated the applicants ’ right to a court under Article 6 of the Convention and their right to the peaceful enjoyment of their possessions under Article 1 of Protocol No. 1 (see Burdov v. Russia , no. 59498/00, ECHR 2002-III)?

4. If the institution ’ 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 domestic remedy in respect of their right to have the final judgments in their favour enforced fully and in a timely manner, as required by Article 13 of the Convention (see, mutatis mutandis, Wasserman v. Russia (no. 2), no. 21071/05, §§ 51 ‑ 58, 10 April 2008; Moroko v. Russia , no. 20937/07, §§ 25-29 and 48, 12 June 2008; Yavorivskaya v. Russia ( dec. ), no. 34687/02, 21 July 2005; Gerasimova v. Russia ( dec. ), no. 24669/02, 16 September 2004; and, mutatis mutandis , KudÅ‚a v. Poland [GC], no. 30210/96, §§ 132-60, ECHR 2000-XI)? In particular, what was the mechanism for engaging the subsidiary liability of the authorities for the failure of a State or municipal institution to execute a final judgment under domestic law? The Government are requested to provide examples from domestic case-law.

6. Does the domestic remedy introduced by the Compensation Act of 30 April 2010 apply to cases where the domestic judicial award is made against a State or municipal institution? In the affirmative, the Government are requested to provide domestic case-law demonstrating that this remedy is effective in practice. If this remedy does not apply, was there a violation of the applicants ’ right to an effective domestic remedy under Article 13 of the Convention (see Burdov v. Russia (no. 2) , no. 33509/04, §§ 96 ‑ 117, ECHR 2009-I, and Gerasimov and Others v. Russia , nos. 29920/05, 3553/06, 18876/10, 61186/10, 21176/11, 36112/11, 36426/11, 40841/11, 45381/11, 55929/11 and 60822/11 , § 166, 1 July 2014)?

Appendix

No.

Applicant name

Birth date

Judgement by

Date of the judgement

Its entry into force

The award

Date of enforcement (if enforced)

Notes

Galina Nikolayevna ZEMCHENKOVA

29/03/1956

1) Meshchanskiy District Court of Moscow

2) Kuybyshevskiy District Court of St Petersburg

3) Meshchanskiy District Court of Moscow

1) 03/12/2002

10/02/2003

EUR 853

2) 24/12/2002

05/01/2003

EUR 1,436

3) 18/06/2003

04/12/2003

EUR 276

1) Partly enforced on 23/12/2002 613 EUR paid

2) Not enforced

3) Not enforced

By virtue of the judgment of 24/12/2002 the court awards were to be paid by the debtor company, and if it lacks funds - by the Ministry.

Natalya Petrovna BELYAYEVA

13/10/1950

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 1,151

2) 11/03/2003

EUR 135

Not enforced

Tamara Viktorovna BUDKINA

29/07/1946

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 1,368

2) 11/03/2003

EUR 171

Not enforced

Yekaterina Vasilyevna BYSTROVA

28/08/1957

Kuybyshevskiy District Court of St Petersburg

24/12/2002

05/01/2003

EUR 966

Not enforced

Valeriya Aleksandrovna DOLBAYA

03/09/1937

Kuybyshevskiy District Court of St Petersburg

24/12/2002

05/01/2003

EUR 610

Not enforced

Lyubov Grigoryevna DUKHOVSKAYA

17/12/1939

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 176

2) 11/03/2003

EUR 103

Not enforced

Yuriy Arturovich GRANITSKIY

20/02/1954

1) Kuybyshevskiy District Court of St Petersburg

2) Kuybyshevskiy District Court of St Petersburg

3) Meshchanskiy District Court of Moscow

1) 19/01/2001

30/01/2001

EUR 1,414

2) 24/12/2002

05/01/2003

EUR 1,371

3) 07/04/2003

18/04/2003

EUR 131

Not enforced

Renata Igorevna GVOZDEVA

06/05/1979

Kuybyshevskiy District Court of St Petersburg

1) 19/01/2001

30/01/2001

EUR 163

2) 24/12/2002

05/01/2003

EUR 158

Not enforced

Yuriy Alekseyevich IGNATYEV

06/12/1945

Kuybyshevskiy District Court of St Petersburg

24/12/2002

05/01/2003

EUR 584

Not enforced

Nadezhda Fedorovna KIYENKO

06/03/1950

1) Meshchanskiy District Court of Moscow

2) Kuybyshevskiy District Court of St Petersburg

3) Meshchanskiy District Court of Moscow

1) 03/12/2002

10/02/2003

EUR 760

2) 24/12/2002

05/01/2003

EUR 1,381

3) 18/06/2003

04/12/2003

EUR 248

1) Partly enforced on 23/12/2002 EUR 613 paid

2) Not enforced

3) Not enforced

Yelena Vasilyevna KOCHNEVA

14/05/1951

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 940

2) 11/03/2003

EUR 140

Not enforced

Natalya Aleksandrovna KOVALCHUK

11/07/1942

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 1,249

2) 11/03/2003

EUR 144

Not enforced

Nikolay Grigoryevich KOVROV

17/08/1946

Kuybyshevskiy District Court of St Petersburg

24/12/2002

05/01/2003

EUR 261

Not enforced

Nonna Viktorovna KOZHEVNIKOVA

12/11/1951

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 1,367

2) 03/12/2002

10/02/2003

EUR 449

1) Partly enforced on 23/12/2002 EUR 156 paid

2) Not enforced

Larisa Aleksandrovna MELIKHOVA

18/08/1940

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 1,262

2) 11/03/2003

EUR 144

Not enforced

Tatyana Nikolayevna MOLOKEYEVA

21/05/1944

Kuybyshevskiy District Court of St Petersburg

24/12/2002

05/01/2003

EUR 1,213

Not enforced

Larisa Borisovna NEFEDOVA

28/06/1954

Kuybyshevskiy District Court of St Petersburg

24/12/2002

05/01/2003

EUR 665

Not enforced

Boris Viktorovich NERONOV

22/01/1955

Kuybyshevskiy District Court of St Petersburg

24/12/2002

05/01/2003

EUR 1,343

Not enforced

Galina Aleksandrovna SHYRYAYEVA

10/11/1947

Kuybyshevskiy District Court of St Petersburg

24/12/2002

05/01/2003

EUR 1,217

Not enforced

Tatyana Grigoryevna SOCHNEVA

16/05/1951

1) Meshchanskiy District Court of Moscow

2) Kuybyshevskiy District Court of St Petersburg

1) 03/12/2002

10/02/2003

EUR 532

2) 24/12/2002

05/01/2003

EUR 1,084

1) Partly enforced on 23/12/2002 EUR 249 paid

2) Not enforced

Yelena Petrovna SOLNTSEVA

12/06/1944

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 1,465

2) 03/12/2002

10/02/2003

EUR 897

1) Partly enforced on 23/12/2002 EUR 467 paid

2) Not enforced

Nina Aleksandrovna YAKUSHEVA

20/08/1947

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 947

2)11/03/2003

EUR 139

Not enforced

Zoya Ivanovna YERMOLAYEVA

17/11/1947

1) Kuybyshevskiy District Court of St Petersburg

2) Meshchanskiy District Court of Moscow

1) 24/12/2002

05/01/2003

EUR 1,135

2)11/03/2003

EUR 27

Not enforced

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ZEMCHENKOVA AND OTHERS v. RUSSIA

ZEMCHENKOVA AND OTHERS v. RUSSIA

LEXI