Постановление Европейского суда по правам человека от 08.04.2010 «Дело Ершова (yershova) против России» [англ.]

Город принятия

EUROPEAN COURT OF HUMAN RIGHTS
FIRST SECTION
CASE OF YERSHOVA v. RUSSIA
(Application No. 1387/04)
JUDGMENT*
(Strasbourg, 8.IV.2010)
____________________________
*This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Yershova v. Russia,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Christos Rozakis, President,

Anatoly Kovler,

Elisabeth Steiner,

Dean Spielmann,

Sverre Erik Jebens,

Giorgio Malinverni,

George Nicolaou, judges,

and {Soren}*Nielsen, Section Registrar,

____________________________
*Здесь и далее по тексту слова на национальном языке набраны латинским шрифтом и выделены фигурными скобками.

Having deliberated in private on 18 March 2010,

Delivers the following judgment, which was adopted on that date:

PROCEDURE
1. The case originated in an application (No. 1387/04) against the Russian Federation 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, Mrs Mariya Grigoryevna Yershova ("the applicant"), on 8 December 2003.

2. The Russian Government ("the Government") were represented by Ms V. Milinchuk, former Representative of the Russian Federation at the European Court of Human Rights.

3. On 12 July 2007 the President of the First Section decided to give notice of the application to the Government. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3).

THE FACTS
I. The circumstances of the case
4. The applicant was born in 1954 and lives in Yakutsk.

5. She was an employee of the municipal company, Yakutskgorteploset (the Yakutsk Town Heating Supply Municipal Company, "the company").

A. Legal status of the Yakutskgorteploset municipal company
6. The company was founded by a decision of the Municipal Property Management Committee of Yakutsk Town Council of 30 June 1992. Sections 3 and 4 of the company's statute stipulated that the company's main objective was to provide uninterrupted heating supply to all the people of Yakutsk, with maintenance work and transportation services, as well as commercial activity. The town of Yakutsk retained ownership of the company's property, while the company exercised the right of economic control in respect of it. Any change to the company's statutory capital was a prerogative of the founder committee. The company could not sell or in any other way alienate or dispose of the property under its economic control without the consent of the founder. The founder received 10% of the company's net income. In accordance with section 7 of the statute, the higher management body of the company was its founder. Only the founder committee could liquidate or reorganise the company, appoint a liquidation commission or approve a liquidation balance sheet in respect of the company.

7. The company was under an obligation to use its assets in accordance with the statutory objectives. Section 5 of the statute stipulated that the company could independently undertake a wide range of economic activities, make contracts and plan its commercial activity. It could also decide on the salary scales for the company's employees and determine the amount of funds to be allocated for salaries.

B. Judgments in the applicant's favour
and the company's liquidation
1. First judgment in the applicant's favour
8. In August 2000 the applicant was dismissed from the company.

9. On 7 December 2000 the Yakutsk Town Court of the Sakha (Yakutiya) Republic reinstated the applicant and ordered the company to pay her 16,632.32 Russian roubles (RUB) in arrears. The judgment was not appealed against and became enforceable on 17 December 2000. The applicant was immediately reinstated at the company.

10. According to the Government, the company paid the applicant RUB 16,632.32 between October 2000 [sic] and February 2001, thus voluntarily completing the enforcement of the award. They have not submitted any documents in this respect.

2. Liquidation order in respect of the company
11. At some point the Municipal Property Management Committee of Yakutsk Town Council withdrew a major part of its assets from the company and transferred it to a newly-created municipal unitary enterprise called the Yakutsk Municipal Unitary Enterprise, MUP Teploenergiya ("МУП Теплоэнергия") ("MUP Teploenergiya"). It appears that the newly-created enterprise had the same designated goal, that is, the supply of heating, assumed the same functions and was registered at the same address in Yakutsk as the company. The exact date of the transfer is unclear.

12. On 16 January 2001 the head of Yakutsk Town Council ordered the liquidation of the company, because it had become unprofitable, and appointed a liquidation commission.

13. According to a letter from the head of the Supreme Commercial Court of the Russian Federation of 11 October 2007, the applicant had not forwarded the writs of execution in respect of the judgment of 7 December 2000 to the company's insolvency manager.

3. Second judgment in the applicant's favour
14. On 14 June 2001 the applicant was again dismissed. She brought a court action challenging the dismissal.

15. On 3 December 2001 the Yakutsk Town Court allowed the applicant's action against the employer and awarded her compensation of RUB 50,357 payable by the liquidation commission of the company.

4. Enforcement proceedings in respect of two judgments
16. On 1 March 2001 the bailiff sent the writ of execution in respect of the first judgment to the head of the liquidation commission.

17. In January 2002 the applicant forwarded the writs of execution in respect of the second judgment to the insolvency manager.

18. She was listed in the list of creditors. The global amount of her claims was RUB 95,339.46, of which RUB 66,999.46 constituted the judgment debt and RUB 28,350 unpaid severance benefits.

19. By letters of 28 January and 27 May 2002 the insolvency manager of the company confirmed that the applicant's claims arising from the judgments of both 7 December 2000 and 3 December 2001 were included in the registry of the company creditors' claims.

5. Further developments in the insolvency proceedings
20. On 16 May 2001 the Yakutsk Town Court, on a complaint by a private individual, quashed the Municipal Property Management Committee's decision on the transfer of the company's assets' to MUP Teploenergiya and the decision by the head of Yakutsk Town Council to liquidate the company stating that it was unlawful. It appears that at some point this decision was upheld on appeal by the Supreme Court of the Sakha (Yakutiya) Republic. The parties have not submitted copies of the respective judicial decisions.

21. On 9 November 2001 the Commercial Court of the Sakha (Yakutiya) Republic declared the company insolvent and ordered the liquidation commission to start payments in respect of the creditors' claims.

22. On 29 November 2002 a local prosecutor's office opened criminal proceedings against Yakutsk Town Council on suspicion of the deliberate creation of the insolvency of the enterprise in relation to the transfer of a major part of the company's assets to the newly-created municipal company, MUP Teploenergiya.

23. On 16 May 2002 the Presidium of the Supreme Court of Sakha (Yakutiya) quashed the judgment of 16 May 2001 on a supervisory review and confirmed the lawfulness of the Town Council's decision to transfer the municipal company's property to MUP Teploenergiya. With reference to section 104 of the Federal Insolvency Act (see paragraph 42 below), the court found that the transferred property in question had been withdrawn from circulation, that it constituted an exempt asset because of its vital importance for the region and the authorities had lawfully transferred the property in question to a different company.

24. On 11 June 2002 the criminal proceedings were discontinued, owing to the absence of a criminal act in the actions of the town administration.

25. On 26 November 2002 the Commercial Court of the Sakha (Yakutiya) Republic declared the enterprise insolvent and discharged it from all obligations and debts, including those before the applicant.

26. By a letter of 16 January 2003 the prosecutor informed the applicant about the intention of the prosecutor's office to challenge the judgment of 16 May 2002 by the Presidium of the Supreme Court of Sakha (Yakutiya) by way of the supervisory-review proceedings. The parties have not submitted any information on the outcome of the proceedings.

C. The applicant's action against the liquidation commission
27. On 25 February 2003 the applicant brought new court proceedings, claiming that the local authorities should be held vicariously liable for the company's debts.

28. On 24 March 2003 the Yakutsk Town Court dismissed the applicant's claim as having no basis in domestic law.

29. On 23 April 2003 the Supreme Court of the Sakha (Yakutiya) Republic quashed the decision and remitted the case for re-examination to the first-instance court. The Supreme Court noted, in particular, that Yakutsk Town Council had handed a significant part of the company's assets over to a newly created municipal enterprise. The court considered that the company's inability to satisfy its creditors' claims was closely linked to the transfer. The court considered that the lower court had not examined these circumstances when deciding on the local administration's liability for the company's debts.

30. On 10 June 2003 the Yakutsk Town Court examined the case afresh. With reference to the decision to discontinue the criminal proceedings in respect of suspicion of deliberate creation of insolvency, the court found that the removal and transfer of the company's assets had been lawful and dismissed the applicant's claims.

31. On 9 July 2003 the Supreme Court of the Sakha (Yakutiya) Republic upheld that decision.

D. Proceedings before the Constitutional Court
32. The applicant applied to the Constitutional Court, claiming that the provisions of the Federal Insolvency Act, which stipulated that, where there was a lack of assets, the debtor was to be released from claims that were unsatisfied in the insolvency proceedings, were incompatible with the Constitution.

33. On 8 June 2004 the Constitutional Court of the Russian Federation rejected her complaint.

E. Current enforcement status of the judgments
in the applicant's favour
34. According to the Government, the debtor company enforced the judgment of 7 December 2000 between October 2000 and February 2001. According to the applicant, the judgment of 7 December 2000, in the part concerning the payment of RUB 16,632.32, and the award of 3 December 2001 remain unenforced to date.

II. Relevant domestic law and practice
A. Municipal unitary enterprises
35. The Civil Code of the Russian Federation defines State and municipal unitary enterprises as special forms of legal entity that do not exercise a right of ownership in respect of a property allocated to them by its owner (Article 113 § 1). The State or municipal authority retains ownership of the property but the enterprise may exercise in respect of that property the right of economic control ("право хозяйственного ведения") or operational management ("право оперативного управления") (Article 113 § 2). The name of the unitary enterprise must indicate the owner of its property (Article 113 § 3).

36. The unitary enterprise, based on the right of economic control, is set up by a decision of the State or the local self-government body authorised for this purpose (Article 114).

37. The constituent document of the enterprise, based on the right of economic control, is called The Rules and is approved by the State body or by the local self-government body. If, at the end of the fiscal year, the cost of the net assets of the enterprise, based on the right of economic control, proves to be less than the size of its authorised fund, the founder of the enterprise is under obligation to effect a reduction of the statutory capital in conformity with the procedure established by law. If the cost of the net assets falls below the amount fixed under domestic law, the enterprise may be liquidated by a court decision (Article 114).

38. The owner has the right to establish the enterprise and to decide on the goals of the enterprise and the scope of its designated activities. The owner exercises control over the use of property in accordance with the designated purpose, has the right to reorganise or liquidate the unitary enterprise and receives a part of the enterprise's profit (Article 295 § 1).

39. The manager of a unitary enterprise is appointed by, and reports to, the property owner (Article 113 § 4).

40. The owner's consent must be obtained for any transaction that may lead to the encumbrance or alienation of the real estate. The enterprise independently disposes of the rest of the property under its economic control, with the exception of the cases established by law or by other legal acts (Article 295 § 2).

B. Insolvency of unitary enterprises with the right
of economic control
41. Unitary enterprises, with the right of economic control over a property, may be declared insolvent in accordance with the insolvency procedure applicable to private companies. The State or municipal owner of a property is not liable for debts of unitary enterprises with the right of economic control over that property unless the owner has caused the enterprise to become insolvent or violated the procedure for its liquidation (Article 114 § 7 and 56 of the Civil Code and section 184 of the Federal Insolvency Act, Federal Law No. 6-FZ of 8 January 1998, in force at the material time).The State or municipal owner of the property may pay, but is not obliged to pay, debts of a unitary enterprise in the framework of insolvency proceedings (sections 1 and 89 of the Insolvency Act).

C. Specific provisions concerning transfer of communal
infrastructure facilities of vital importance
1. Federal Insolvency Act
42. If the debtor's assets include assets which have been withdrawn from circulation, the owner should accept the assets from the insolvency manager or transfer them to other persons (section 104 § 2). Such assets as, inter alia, communal infrastructure facilities of vital importance for a region are to be transferred to a municipal authority. The authority accepts responsibility