CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 6 mars 2018

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border-left:0.75pt solid #949494; border-bottom:0.75pt solid #949494; padding:1.02pt 5.03pt } .s9E8CD4F7 { width:6.9%; border-top:0.75pt solid #949494; border-right:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .s67C4BC32 { width:31.04%; border-top:0.75pt solid #949494; border-right:0.75pt solid #949494; border-left:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sBF04318C { width:18.94%; border-top:0.75pt solid #949494; border-right:0.75pt solid #949494; border-left:0.75pt solid #949494; padding:1.02pt 5.03pt; vertical-align:top } .sACB033E5 { width:25.88%; border-top:0.75pt solid #949494; border-right:0.75pt solid #949494; border-left:0.75pt solid #949494; padding:1.02pt 5.03pt } .s19EBE2BD { width:17.22%; border-top:0.75pt solid #949494; border-left:0.75pt solid #949494; padding:1.02pt 5.03pt }     THIRD SECTION DECISION Application no. 4915/06 Fedor Alekseyevich KIRSANOV and Others against Russia   The European Court of Human Rights (Third Section), sitting on 6   March 2018 as a Committee composed of:   Luis López Guerra, President,   Dmitry Dedov,   Jolien Schukking, judges, and Fatoş Aracı, Deputy Section Registrar, Having regard to the above application lodged on 29 December 2005, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows: THE FACTS Two lists of the applicants are set out in the appended tables. The applicants were represented by Ms S. Mukhambetova, a lawyer practising in Yekaterinburg. 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 The facts of the case, as submitted by the parties, may be summarised as follows. 1.     Non-enforcement of final judgments in the applicants’ favour The applicants listed in Appendix I obtained monetary court awards against Federal State Unitary enterprise “Kurganpribor” ( ФГУП «Курганприбор» ) (hereafter “the company”). On 26 November 2003 the company was declared bankrupt. The insolvency proceedings started in respect of the company. On 31   March 2005, the applicants complained to domestic courts about the liquidator’s decision to qualify certain claims by the employees as the fifth priority claims. On 11   May 2005 the Commercial Court of the Kurgan Region declared the liquidator’s acts lawful. The applicants appealed. On 28 July 2005 the Commercial Court of the Kurgan Region discontinued the proceedings on the ground that the enterprise had already been liquidated on 22   June 2005, and that on 27   June 2005 its name had been deleted from the Uniform State Register of Legal Entities ( Единый государственный реестр юридических лиц ). According to the applicants, the court awards in their favour have not been fully enforced to date. 2.     Proceedings related to the applicants’ pensions Sixteen applicants listed in Appendix II sued the Pension Fund of the Russian Federation ( Пенсионный фонд Российской Федерации) (hereafter   – the Fund). They claimed that the company had not made certain payments to the Fund in 2002-2005, and, as a result, that period was not taken into account when their pension was calculated. They argued that the Fund was liable for that omission. On the dates tabulated in Appendix II domestic courts dismissed the applicants’ claims. The courts found that the calculation of the pensions by the Fund had been accurate and in accordance with the law. They explained that under the applicable law, only the periods for which the contributions had been made to the Fund had to be taken into account for the purpose of calculation of the pensions. As the Fund had not received contributions in respect of the relevant period there was no ground for re-calculation of the applicants’ pensions. As regards the applicants’ argument that the State had to bear subsidiary liability for the acts of the Fund, the courts ruled that those arguments were baseless, as the law provided for specific situations when such responsibility was engaged, and the applicants’ cases did not fall within any of those situations. 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). Article 10 § 1 of Federal Law no.   173-FZ of 17   December 2001 stipulates that the aggregate duration of work periods taken into consideration for the purposes of calculation of pension amount includes periods of work or other activity, provided that contributions were paid to the Pension Fund of the Russian Federation in respect of those periods. Article 28   §   3 of Federal Law no.   127-FZ of 26   October 2002 “On insolvency (bankruptcy)”, as in force at the material time, provides that decisions of discontinuation of insolvency proceedings shall be published. Article   57 §   1 of the same law stipulates that a commercial court discontinues the insolvency proceedings when the liquidation proceedings (конкурсное производство) are closed. COMPLAINTS Relying on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention, the applicants listed in Appendix I complain about non ‑ enforcement of court awards in their favour. Relying on Article 1 of Protocol No. 1 to the Convention, the applicants listed in Appendix II complain about allegedly wrongful calculation of their pensions. THE LAW A.     Complaints about non-enforcement of the domestic judgments The applicants listed in Appendix I complained of the non-enforcement of the domestic decisions given in their favour. They relied on Article   6 § 1 of the Convention and 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.” The Court notes that it is not disputed between the parties that the judicial awards have remained unenforced to the present day. Nevertheless, the Court reiterates that a continuing situation may not postpone the application of the six-month rule indefinitely (see Sokolov and Others   (dec.), nos.   30859/10 and 6 others, §   31, 14   January 2014, with further references). While there are obvious distinctions as regards different continuing situations (ibid.), 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 for or progress in his complaints at the domestic level in the foreseeable future (ibid.;   see also, Voronkov v.   Russia, no.   39678/03, §   38, 30   July 2015, with further references). In Bichenok v.   Russia the Court found, in the context of the non-enforcement of pecuniary awards made against a unitary enterprise with the right of economic control, that the applicant could have had a realistic hope of progress in enforcement of the judgment, or a favourable outcome for her claims at the domestic level as long as the insolvency proceedings were ongoing (see, in so far as relevant, Bichenok v.   Russia (dec.), no.   13731/08, §   23, 31   March 2015). The insolvency proceedings in respect of the debtor unitary enterprise in the present case ended on 22   June 2005, and the debtor company was liquidated without any legal successor or remaining bankruptcy estate. The applicants did not argue that they could not learn about the decision of 22   June 2005 concerning the company’s liquidation from the date it was taken, or of the fact that the relevant entry had been made in the Unified State Register of Legal Entities. Instead, they considered that the six-month period should be counted from 28   July 2005, i.e. the date when the proceedings against the liquidator were discontinued. The Court finds that from 22   June 2005 it should have become apparent to the applicants that the debtor company was no longer in a position to honour the relevant judgments in their favour (see Bichenok, cited above , §   23, and Voronkov , cited above, §   39). The Court further notes that since   22 June 2005 the applicants did not attempt to initiate any kind of domestic proceedings which could have brought them closer to their goal, that is, either the enforcement of the judgments in their favour, or, alternatively, engaging the authorities’ responsibility for the failure to properly assist them in the enforcement of the judicial award (see, by contrast, Voronkov , cited above, §§   42-45). In so far as they refer to the proceedings which ended on 28   July 2005, the Court observes that those proceedings had already been pending for several months on the date of liquidation of the company. With the liquidation all the debts of the company were considered settled, and any proceedings against the liquidator had to be terminated and had no chances to success. Thus, in the Court’s view, it should have become apparent to the applicants that from the day of the liquidation they had no available legal avenue at the domestic level whereby they could obtain full enforcement of the judgments in their favour. The Court considers that the six-month period should be counted from 22   June 2005, i.e. the date of the commercial court’s decision to liquidate the company. Accordingly, the present complaints have been introduced out of time. It follows that the application in this part must be rejected in accordance with Article   35   §§   1 and 4 of the Convention. B.     The complaints about allegedly wrongful calculation of pensions The applicants listed in Appendix II complained about allegedly wrongful calculation of their pensions, and the domestic courts’ refusal to re-calculate their pensions. They relied on Article 1 of Protocol No. 1 to the Convention, cited above. The Government submitted that on the dates of the domestic decisions dismissing the applicants’ claims the courts had no legal grounds for ordering recalculation of the pensions. They further submitted that on 10   July 2007 in its Ruling No. 9-П the Constitutional Court found Article   10 § 1 of Federal Law no.   173-FZ and a number of other norms unconstitutional. In accordance with this Ruling, all periods of employment should be taken into account, including those when the contributions were not paid to the Fund by the employers, no matter whether those periods were before or after 10   July 2007. The Government further stated that in June 2008 there was a wide-scale recalculation of pensions in Russia in accordance with the above-mentioned Ruling. They also alleged that the applicants did not seek review of the judgments rejecting their claims. The applicants submitted in reply that the State had to bear subsidiary liability for the obligations of the Fund, and that it had failed to control the transfer of the contributions to the Fund, as well as the recovery of the debts during the liquidation proceedings. The Court reiterates that all principles which apply generally in cases concerning Article 1 of Protocol No. 1 to the Convention are equally relevant when it comes to welfare benefits ( Stec and Others v. the United Kingdom (dec.) [GC], nos.   65731/01 and 65900/01, § 54, ECHR 2005-X). Thus, Article 1 of Protocol No.   1 to the Convention does not guarantee as such any right to become the owner of property (see Van der Mussele v.   Belgium , 23   November 1983, § 48, Series A no. 70; Slivenko v. Latvia (dec.) [GC], no.   48321/99, § 121, ECHR 2002-II; and Kopecký v. Slovakia [GC], no.   44912/98, § 35 (b), ECHR 2004-IX). Nor does it guarantee, as such, any right to a pension of a particular amount (see, for example, Kjartan Ásmundsson v. Iceland , no. 60669/00, § 39, ECHR 2004 ‑ IX; Domalewski v. Poland (dec.), no. 34610/97, ECHR 1999 ‑ V; and Janković v.   Croatia (dec.), no. 43440/98, ECHR 2000 ‑ X). As a rule, Article 1 of Protocol No. 1 to the Convention applies only to a person’s existing possessions. However, in certain circumstances, a “ legitimate expectation” of obtaining an “asset” may also enjoy the protection of Article 1 of Protocol   No. 1 to the Convention. Thus, where a proprietary interest is in the nature of a claim, the person in whom it is vested may be regarded as having a “ legitimate expectation” if there is a sufficient basis for the interest in national law, for example where there is settled case-law of the domestic courts confirming its existence (see Kopecký , cited above, § 52). However, no legitimate expectation can be said to arise where there is a dispute as to the correct interpretation and application of domestic law and the applicant’s submissions are subsequently rejected by the national courts (ibid., § 50). In the present case, the Court considers that the applicant’s claims for re ‑ calculation of their pensions had no sufficient basis in national law at the time when the domestic courts dealt with the claims. The domestic courts consistently rejected the applicants’ claims, each time finding that the pensions had been calculated in accordance with the applicable law. However, as submitted by the Government, the situation changed on 10   July 2007 when the Constitutional Court found certain legal provisions applied in the applicants’ cases unconstitutional. The Government further submitted that a wide-scale recalculation of pensions followed the Ruling. The Court notes that the applicants did not provide any information how they acted in view of this Ruling by the Constitutional Court. In particular, they did not mention whether they had brought to the attention of any domestic authorities their wish to have their pensions recalculated. Instead, the applicants reiterated their argument concerning the State’s subsidiary liability for the obligations of the Fund. The Court reiterates that the purpose of Article 35 § 1, which sets out the rule on exhaustion of domestic remedies, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V, and Kudła v.   Poland [GC], no. 30210/96, §   152, ECHR 2000 ‑ XI). However, in the circumstances of the present case it appears that the State was not afforded such opportunity. In the light of the above principles and the circumstances of the present case, the Court finds that the complaints under Article 1 of Protocol No. 1 to the Convention are inadmissible and must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 29 March 2018.   Fatoş Aracı   Luis López Guerra Deputy Registrar   President   Appendix I No. Applicant’s name Date of birth                  Fedor Alekseyevich KIRSANOV 22/02/1942                  Galina Georgiyevna ALEKSANDROVA 16/05/1947                  Margarita Vladimirovna ARTYUSHKINA 15/11/1951                  Galina Viktorovna BUZMAKOVA 13/12/1957                  Svetlana Ivanovna CHEREPANOVA 20/08/1946                  Vladimir Georgiyevich FOMIN 30/11/1944                  Rozaliya Abrarovna GOMZYAKOVA 29/12/1942                  Tamara Nikolayevna GONTSOVA 04/06/1949                  Zinaida Fedorovna KUKSILOVA 05/11/1946              Nadezhda Vladimirovna KULTYSHEVA 22/11/1950              Aleksandr Stepanovich KUTYGIN 14/12/1938              Tatyana Pavlovna NASONOVA 12/07/1951              Boris Stepanovich NECHAYEV 07/05/1939              Lyudmila Nikolayevna PERSHUKOVA 14/09/1951              Lyubov Mikhaylovna PUGACH 25/04/1947              Aleksandr Feodosyevich PUGACH 12/01/1944              Valentina Prokhorovna RYBINA 29/09/1946              Nina Maksimovna RYZHIKH 15/01/1946              Nadezhda Andreyevna SAFONOVA 17/02/1951              Vladimir Nikolayevich SHASHIN 12/03/1944              Zhanna Nikolayevna TSVETKOVA 15/04/1938              Nadezhda Vasilyevna ULYANOVA 24/01/1949     APPENDIX II No. Applicant’s name Date of birth Judgment by Date of the judgment, in force on                  Lyubov Mikhaylovna PUGACH 25/04/1947 Kurgan City Court of the Kurgan Region 21/02/2006 18/04/2006                  Aleksandr Feodosyevich PUGACH 12/01/1944                      Nadezhda Vladimirovna KULTYSHEVA 22/11/1950                      Valentina Prokhorovna RYBINA 29/09/1946 Kurgan City Court of the Kurgan Region 26/01/2006 25/04/2006                  Vladimir Nikolayevich SHASHIN 12/03/1944                      Tamara Nikolayevna GONTSOVA 04/06/1949                      Zinaida Fedorovna KUKSILOVA 05/11/1946                      Rozaliya Abrarovna GOMZYAKOVA 29/12/1942                      Zhanna Nikolayevna TSVETKOVA 15/04/1938                  Nadezhda Vasilyevna ULYANOVA 24/01/1949 Kurgan City Court of the Kurgan Region 26/01/2006 27/04/2006              Galina Georgiyevna ALEKSANDROVA 16/05/1947                  Sergey Vadimovich KUKSILOV 08/05/1949                  Galina Yakovlevna LEGOTINA 21/11/1947                  Lyudmila Ivanovna KOROTKIKH 15/01/1950                  Fedor Alekseyevich KIRSANOV 22/02/1942 Kurgan City Court of the Kurgan Region 02/02/2006 11/04/2006              Vladimir Georgiyevich FOMIN 30/11/1944