CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 31 mars 2015

.s800EAC49 { font-size:12pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s8BA86F1C { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s507451D6 { width:4.53pt; display:inline-block } .s6AED2ED5 { width:194.42pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } FIRST SECTION DECISION Application no. 13731/08 Pelageya Ivanovna BICHENOK against Russia The European Court of Human Rights (First Section), sitting on 31   March 2015 as a Chamber composed of:   Elisabeth Steiner, President,   Khanlar Hajiyev,   Mirjana Lazarova Trajkovska,   Paulo Pinto de Albuquerque,   Linos-Alexandre Sicilianos,   Ksenija Turković,   Dmitry Dedov, judges, and Søren Nielsen, Section Registrar, Having regard to the above application lodged on 21   February 2008, Having deliberated, decides as follows: THE FACTS The applicant, Ms Pelageya Ivanovna Bichenok, is a Russian national, who was born in 1954 and lives in Orel. A.     The circumstances of the case 1.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Judgments in the applicant’s favour and the employer company’s insolvency 2.     The applicant is a former employee of a municipal unitary enterprise, the Town Housing and Maintenance Company (“ МУП Городское Производственное Предприятие Жилищно-Коммунального Хозяйства” (“the company”) of Mirnyy, the Republic of Sakha (Yakutiya). 3.     The company was set up by a decision of the administration of the town of Mirnyy (“the town administration”) and provided housing and communal services in the town. The company had “the right of economic control (“право хозяйственного ведения” ) over the assets allocated to it by the town administration in order to carry out its statutory activities. 4.     On an unspecified date the company was declared insolvent, and insolvency proceedings commenced. A liquidation commission was accordingly set up. 5.     At some point the applicant was dismissed from the company. She challenged her dismissal in court and claimed salary arrears in two rounds of court proceedings. 6.     On 14   February 2001 the Mirninskiy District Court of the Sakha (Yakutiya) Republic granted the applicant’s claim in part. The court found that the applicant’s dismissal had been unlawful, ordered the liquidation commission to change the date of the dismissal to the date of the judgment, to modify the grounds for the dismissal and to pay the applicant 121,767.95   Russian roubles (RUB) in salary arrears. On 26   March 2001 the judgment was upheld on appeal by the Supreme Court of the Republic of Sakha (Yakutiya) and entered into force. 7.     On 12   April 2001 the same court awarded the applicant RUB   44,052.36 against the company in respect of salary arrears. It appears that the judgment entered into force ten days later. 8.     The applicant received the writs of execution in respect of the judgments and sent them to the town bailiffs’ service on 12   March and 15   May 2001 respectively. On the same dates the bailiffs instituted enforcement proceedings in respect of each of the writs. 9 .     On 17   July 2001 the Commercial Court of the Republic of Sakha (Yakutiya) discontinued the insolvency proceedings and ordered the respondent company’s liquidation. The creditors’ claims, which had not been satisfied during the insolvency proceedings, including the remainder of the applicant’s claims, were considered as settled. On 30   October 2001 the liquidation was recorded in the Register of Legal Entities, and the company ceased to exist. 10.     It appears that the judgments in the applicant’s favour have not been enforced. 2.     Proceedings against the bailiffs’ service 11.     On 19   June 2001 the applicant brought proceedings against the bailiffs’ service, alleging that it had been inactive and had failed to assist her in the enforcement of the judgments in her favour. 12.     On 4   February 2002 the bailiffs’ service discontinued the enforcement proceedings because of the company’s liquidation. 13.     By a final judgment of 5   June 2002 the Supreme Court of the Republic of Sakha (Yakutiya) dismissed the applicant’s claim. The court held that the bailiffs had taken measures to ensure enforcement of the judicial awards in her favour until the company’s liquidation on 17   July 2001. However, the bailiffs had been manifestly unable to obtain enforcement of the awards after the company had ceased to exist. Therefore, the court concluded that the decision to discontinue the enforcement proceedings had been lawful. B.     Relevant domestic law and practice 14.     For a summary of the relevant domestic law and practice concerning municipal unitary enterprises see, in so far as relevant, Samsonov v.   Russia ((dec.), no.   2880/10, §§   15-44, 9   October 2014); Yershova v.   Russia (no.   1387/04, §§   35-43, 8   April 2010); and Liseytseva and Maslov v.   Russia (nos.   39483/05 and 40527/10, §§   54-127, 9   October 2014). COMPLAINTS 15.     The applicant complained, without referring to any Convention provision, that the two domestic judgments in her favour had not been enforced. THE LAW 16.     The Court will examine the applicant’s complaint under Article   6   §   1 of the Convention and Article   1 of Protocol   No.   1, the relevant parts of which read as follows: Article   6   §   1 “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal ...” 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.” 17.     The applicant maintained her claim and submitted that the State was responsible for the debtor company’s failure to enforce the judgment. 18 .     The Court notes that the judgments in the applicant’s favour were given against a municipal unitary company with the right of economic control. The Court reiterates that, given the special status of municipal unitary enterprises under Russian law, they can be classified neither as State authorities, such as the local administration, nor as ordinary private companies (see Yershova , cited above, §   54). The Court further reiterates that the existing legal framework does not provide such companies with a degree of institutional and operational independence that would absolve the respondent State from responsibility for the companies’ debts, and the issue of the State responsibility is to be determined, in each case, on the basis of the criteria as summarised in Liseytseva and Maslov (cited above, §§   204 ‑ 06 ). However, the Court does not consider it necessary to determine the issue of the State’s responsibility in the present case. It will first ascertain whether the applicant complied with the six-month time-limit in accordance with Article   35   §   1 of the Convention. 19.     The primary purpose of the six-month time-limit is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time. That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and to State authorities, the period beyond which such supervision is no longer possible. As a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where it is clear from the outset, however, that no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of knowledge of that act or its effect on or prejudice to the applicant (see, as a recent authority, Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§   258-59, ECHR 2014 (extracts), with further references). In cases involving a continuing situation, the six-month period runs from the cessation of that situation (see Seleznev v.   Russia , no.   15591/03, §   34, 26   June 2008, and Koval v.   Ukraine (dec.), no.   65550/01, 30   March 2004). 20.     Non-enforcement of a judgment is a continuing situation (see, among many others, Trunov v.   Russia , no.   9769/04, §   15, 6   March 2008). However, in a number of cases the Court has rejected non-enforcement complaints in accordance with Article   35   §   1 of the Convention if they were introduced more than six months after the date when the judgment ceased to be binding and enforceable (see, in the context of the quashing of a judgment by way of supervisory-review proceedings, Kravchenko v.   Russia , no.   34615/02, §   34, 2   April 2009, and Nikolay Zaytsev v.   Russia , no.   3447/06, §   26, 18   February 2010). In Babich and Azhogin the Court rejected the applications as introduced out of time where the applicants had lodged their complaints more than six months after the time at which they had clearly learned, or ought to have learned, that the judgments in their favour had no longer been enforceable under the domestic law because of the change in the domestic pensions legislation (see Babich and Azhogin v.   Russia (dec.), nos.   9457/09 and 9531/09, §§   47 ‑ 54 and 57 ‑ 58, 15   October 2013). 21.     In contrast to the aforementioned Kravchenko, Babich and Azhogin   (dec.) and Sukhobokov cases (all cited above), the judgments in the applicant’s favour in the present case were not set aside by the domestic courts, nor were they amended or interpreted by a competent court, and they did not otherwise cease to be binding and enforceable. Given that the judicial awards in the applicant’s favour remain unenforced to the present day, the situation complained of is a continuing one. 22.     Nevertheless, the Court reiterates that a continuing situation may not postpone the application of the six-month rule indefinitely (see Sokolov and Others v. Serbia (dec.), §   31, nos.   30859/10 et al., 14   January 2014, with further references). While there are obvious distinctions as regards different continuing situations, 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 or progress for her complaints at the domestic level in the foreseeable future (ibid.; see also, mutatis mutandis , Sargsyan v. Azerbaijan (dec.) [GC], no.   40167/06, §   140, 14   December 2011, and, also in so far as relevant, Mocanu and Others , cited above, §   262). For instance, in the specific context of complaints concerning non-enforcement of domestic judgments by socially-owned companies in Serbia, the Court considered that the applicants’ obligation to introduce their complaints before the Court with reasonable expedition should be directly linked to the progress of the enforcement of the relevant judgments at the domestic level (see Sokolov and Others , cited above, §   32). 23.     The Court considers that the above findings are applicable to the present case, which concerns the non-enforcement of pecuniary awards made against a company incorporated under the Russian law as a unitary enterprise with the right of economic control. The Court concedes that the applicant may have had a realistic hope of progress in or a favourable outcome for her claims at the domestic level as long as the insolvency proceedings were ongoing (as in Sokolov and Others , cited above, §   33). However, the insolvency proceedings in respect of the debtor municipal unitary enterprise – which were conducted in accordance with the insolvency procedure applicable to private companies governed by company law in Russia (see Yershova , cited above, §   41) – ended as early as 30   October 2001, and the debtor company was liquidated without any legal successor or remaining bankruptcy estate. The creditors’ claims which had not been satisfied during the liquidation procedure, including the applicant’s claims, were considered as settled (see paragraph   9 above), and there is nothing to suggest that the applicant learned about the liquidation with any delay. In the Court’s view, it should then have become apparent to her that in those circumstances there was no available legal avenue at the domestic level whereby she could obtain the enforcement of the relevant judgments in her favour against the debtor in question. 24.     The Court notes in that regard that at some point the applicant chose to bring proceedings against the bailiffs. In the aforementioned case of Liseytseva and Maslov (cited above, §   161) the Court found that such a claim did not constitute an effective remedy in the specific context of the debtor companies’ insolvency. The circumstances of the present application are very similar to those in Liseytseva and Maslov: the domestic courts confirmed that the reason for non-enforcement – that is, the company’s liquidation – was beyond the bailiffs’ influence. In any event, even assuming that the applicant was not aware, and should not have become aware, of the futility of her action while the proceedings against the bailiffs were still pending (see, mutatis mutandis , Norkin v. Russia (dec.), no.   21056/11, §   20, 5   February 2013), the Court notes that the respective proceedings ended in 2002, that is, almost six years before she applied to the Court. 25.     Therefore, the Court finds that the applicant knew, or ought to have known, that the enforcement of the judgments in her favour was no longer possible since late 2001. Furthermore, the latest domestic proceedings initiated by her in relation to her complaint about the non-enforcement by a unitary company ended in 2002. Otherwise, the applicant did not make use, within the six-month time-limit, of any domestic procedure – and there is nothing to suggest that she had any available legal avenue at her disposal (see, mutatis mutandis , Liseytseva and Maslov , cited above, §§   159-82) – which could have brought her closer to her goal, that is, either the enforcement of the judgments in her favour, or, alternatively, engaging the authorities’ responsibility for the failure to properly assist her in the enforcement of the judicial awards in her favour. As the facts of the case suggest, it should have become apparent to her as early as in 2002 that there was no such legal avenue at her disposal. However, the applicant remained inactive for several years before bringing her grievance to the attention of the Court on 21   February 2008. 26.     It follows that the application must be rejected in accordance with Article   35   §§   1 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Done in English and notified in writing on 23 April 2015.   Søren Nielsen   Elisabeth Steiner   Registrar   President