CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 23 janvier 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .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 } .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 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA20670C4 { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sF3B96856 { width:11.87pt; display:inline-block } .s330D47D5 { width:214.44pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     THIRD SECTION DECISION Application no. 23211/04 Yuriy Valentinovich SHIKUNOV against Russia The European Court of Human Rights (Third Section), sitting on 23   January 2018 as a Committee composed of:   Helen Keller, President,   Pere Pastor Vilanova,   Alena Poláčková, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 24 May 2004, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Yuriy Valentinovich Shikunov, is a Russian national, who was born in 1963 and lives in Krasnoarmeysk. 2.     The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin, the Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     The applicant sued Federal State Unitary Enterprise, FGUP NII Geodeziya ( ФГУП НИИ «Геодезия ») to obtain housing. On 8   October 2002 the Pushkinskiy Town Court of Moscow Region (“the Town Court”) ordered the enterprise to provide the applicant with a flat. The judgment entered into force on 4   December 2002. 5 .     In accordance with the Government Decree dated 30   December 2005 No.   2363-p the enterprise was reorganised into a treasury enterprise (« казенное предприятие ») FKP NII Geodeziya ( ФКП НИИ «Геодезия »). 6.     On 10   February 2006 the same court changed the mode of execution of the judgment of 8   October 2002 and ordered the enterprise to pay the applicant 1,305,480 Russian roubles (RUB). 7.     On 28   July 2008 the above decision was enforced. 8 .     On 18 November 2008 the Town Court index-linked the above ‑ mentioned amount. The court awarded the applicant RUB   1,915,139.16. That amount was paid to the applicant on 23   December 2009. 9 .     On various dates in 2007-2010 the applicant was awarded and paid interest for delay in payment of the debts for various periods. B.     Relevant domestic law 10.     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). COMPLAINTS 11.     Relying on Article 6 of the Convention and Article 1 of Protocol No.   1 to the Convention, the applicant complained about delays in enforcement of the court awards in his favour. THE LAW 12.     The applicant complained of the delayed enforcement of the decisions given in his favour. He relied on Article   6 § 1 of the Convention and on Article 1 of Protocol   No.   1 to the Convention, 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 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.” A.     The parties’ submissions 13.     The Government argued, inter alia , that the complaints are inadmissible ratione personae , as the debtor was a private company, and that the decisions in the applicant’s favour had been enforced without an undue delay. In respect of the decision of 18   November 2008, the Government noted that the state provided the necessary assistance with the view to its enforcement. 14.     The applicant maintained his complaints, arguing that the total length of proceedings in his case, including the period of non-enforcement of the final decisions, amounted to more than eight years. B.     The Court’s assessment 1.     The Court’s case-law 15.     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). The Court held that in order to decide on the operational and institutional independence of a given municipal unitary enterprise having the right of economic control the Court has to assess the nature of the enterprise’s functions and the degree of the State or municipal authorities’ actual involvement in the management of the enterprises’ assets. 16.     With regard to the non-enforcement of domestic judgments, the Court has consistently held that in situations where the party liable to pay is a State, the approach of the Court is that the judicial award should be enforced fully and without any unjustified delay (see Burdov v.   Russia , no.   59498/00, § 35, ECHR 2002 ‑ III). In contrast to the obligation of a High Contracting Party to comply expediently with the judgments against it, within the domain of enforcement of a final and binding judicial decision against a private party a State’s obligations are limited to providing a creditor with the necessary legal assistance and ensuring the effective operation of the procedure (see Fuklev v.   Ukraine , no.   71186/01, § 84, 7   June 2005; Anokhin v. Russia (dec.), no.   25867/02, 31   May 2007; and Kunashko v. Russia , no. 36337/03, § 38, 17 December 2009). In the context of the Russian legal system, the principles cited above are applicable, in the first place, to the bailiffs service, which is required to perform its functions diligently and thoroughly with a view to ensuring effective execution of judgments issued against “private” defendants ( Pelipenko v. Russia , no.   69037/10, § 50, 2 October 2012). 17 .     According to the Court’s case-law, for an applicant to be able to claim to be the “victim” of a violation, within the meaning of Article 34 of the Convention, not only must he have the status of victim at the time the application is introduced, but such status must continue to exist at all stages of the proceedings. It reiterates that a decision or measure favourable to an applicant is not, in principle, sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Amuur v. France , judgment of 25 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p.   846, §   36). 18 .     The Court has previously found that the applicants were no longer victims of violation of Article 6 of the Convention and Article 1 of Protocol No.   1 to the Convention in non-enforcement cases where, inter alia , the applicants had been awarded and promptly paid the damages for inflation losses for the period of delay in enforcement of a judgment in their favour (see Derkach v. Russia (dec.), no. 3352/05, 3   May 2007, and Nemakina v.   Russia (dec.), no. 14217/04, 10   July 2007). 2.     Application to the present case (a)     The period before the reorganisation of the debtor company 19.     The Court observes that until the end of 2005 the debtor was FGUP NII Geodeziya, a Federal State Unitary Enterprise incorporated under the laws of Russia. Further, the company was reorganised into FKP NII Geodeziya (see paragraph 5 above). The Court will examine the complaint in respect of each type of legal entity. 20.     In so far as FGUP NII Geodeziya is concerned, the Court notes that the case is similar to the case of Samsonov (cited above) as the parties have not submitted any information concerning the question whether FGUP NII Geodeziya performed any public functions or whether the State had somehow interfered with the company’ activities. The Court further notes that the parties’ submissions on the question of state responsibility concern only FKP NII Geodeziya. 21.     The Court, therefore, is not convinced that FGUP NII Geodeziya did not enjoy sufficient institutional and operational independence from the authorities. Accordingly, the State’s responsibility for the company’s failure to execute the judgment should be assessed in the light of the principles related to the non-enforcement of the judgments against private parties (see Kunashko, cited above, § 38-40, and Samsonov , cited above, §§ 82-85). 22.     As regards possible responsibility of the State for the enforcement authorities’ acts, the applicant does not maintain that the bailiffs had been inactive or that their service had been inadequate between 29   January 2003, the date when the enforcement proceedings commenced, and 30   December 2005, the time when the debtor company was reorganised (see Samsonov , cited above, §§   82-85). 23.     It follows that the complaint in the part relating to the period from the judgment’s entry into force and until the reorganisation of FGUP NII Geodeziya is manifestly ill-founded and must be rejected in accordance with the Article 35 §§ 3 and 4 of the Convention. (b)     The period after the reorganisation of the debtor company 24.     In accordance with the Government Decree dated 30   December 2005 the debtor company was reorganised from FGUP NII Geodeziya into FKP NII Geodeziya (see paragraph 5 above). 25.     The Government submitted that FKP NII Geodeziya had sufficient institutional and functional independence, and, thus, its debts were not attributable to the State. The applicant argued in reply that the company was partly funded by the State, which could be held liable for the debts of FKP NII Geodeziya if the company’s assets were not enough. 26.     However, in the present case, the Court does not need to decide whether the State was responsible for the alleged non-enforcement of the judgments in the applicants’ favour and against FKP NII Geodeziya as the complaint in this part is in any event inadmissible on the following grounds. 27.     The Court observes that on 10   February 2006 the Town Court changed the mode of enforcement of the judgment of 8   October 2002, and ordered the defendant to pay the applicant a particular amount of money. On 28 June 2006 the decision came into force, and on 28   July 2008 the amount was paid to the applicant. Thus, the decision was enforced within approximately two years and one month. 28.     The Court further observes that on 18 November 2008 the Town Court adjusted the above-mentioned amount to inflation losses. The Town Court acknowledged that there had been a delay in enforcement of the judgment, which prevented the applicant from purchasing an apartment, and granted in full the amount claimed by the applicant. That decision was enforced within approximately one year (see paragraph 8 above). In addition, the domestic court awarded the applicant interest for delays in payments (see paragraph 9 above). 29.     In the view of the foregoing and the Court’s case-law (see paragraphs 17 and 18 above), the Court finds that the national authorities have acknowledged and then afforded redress for the alleged breach of the Convention. 30.     It follows that, in so far as the debts of FKP NII Geodeziya are concerned, the applicant can no longer claim to be a “victim” of a violation of the Convention within the meaning of Article 34 of the Convention and that the complaint in this part is to be declared inadmissible, pursuant to Articles 34 §§ 3 and 4. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 15 February 2018.   Fatoş Aracı   Helen Keller Deputy Registrar   President