European Court of Human Rights

THIRD SECTION

CASE OF TYUTINA AND OTHERS v. RUSSIA

(Applications nos. 3380/10 and 33725/10)

JUDGMENT

STRASBOURG

13 February 2018

This judgment is final but it may be subject to editorial revision.

In the case of Tyutina and Others v. Russia,

The European Court of Human Rights (Third Section), sitting as a Committee composed of:

Luis López Guerra, President,
Dmitry Dedov,
Jolien Schukking, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having deliberated in private on 23 January 2018,

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

PROCEDURE

1. The case originated in two applications (nos. 3380/10 and 33725/10) 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 135 Russian nationals on 8 December 2009 and 25 May 2010. The applicants were represented by Mr A. A. Shestakov, a lawyer practising in Kotlas.

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.

3. On 30 August and 29 September 2016 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The list of applicants is set out in the appended tables.

A. Judgments in the applicants-� favour

5. On the dates indicated in the appended tables the applicants obtained monetary court awards against the Municipal Unitary Enterprise Passenger Transport Company of Kotlas (MUP Kotlas Passazhirskoye avtotransportnoye predpriyatiye - муниципальное предприятие муниципального образования Котлас «Пассажирское автотранспортное предприятие»).

6. Some of the judgments in the applicants-� favour have been partly enforced during the insolvency proceedings in respect of the company (see paragraphs 7-10 below), while others remained unenforced to date.

B. Available information on the debtor company

7. The company was incorporated as a municipal unitary enterprise. It was set up by the municipality of Kotlas. The company provided transport services in the town. It had -�the right of economic control-� (право хозяйственного ведения) over the assets allocated to it.

8. As submitted by the applicants, the prices for the transport services in the town of Kotlas were regulated by the Administration of Arkhangelsk region.

9. On 28 September 2007 insolvency proceedings started in respect of the company.

10. On 18 September 2012 the company was declared insolvent and subsequently liquidated.

II. RELEVANT DOMESTIC LAW

11. The domestic provisions relevant to cases on the legal status of State and municipal unitary enterprises with the right of economic control are summarised in Liseytseva and Maslov v. Russia (nos. 39483/05 and 40527/10, §§ 54-127, 9 October 2014), and Samsonov v. Russia ((dec.) no. 2880/10, 18 September 2014).

THE LAW

I. JOINDER OF THE APPLICATIONS

12. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court).

II. LOCUS STANDI

13. The Court takes note of the death of the following applicants: Mr Vladimir Yegorovich Zavyalov, Mr Aleksey Ivanovich Shpolvind, Mr Nikolay Yevgenyevich Shcherbinin, Mr Valentin Feodosyevich Vasendin, Mr Andrey Nikolayevich Belykh, and Mr Yuriy Aleksandrovich Vishnyakov. The Court further takes note of the wish of Ms Tamara Vladimirovna Zavyalova, Ms Lyudmila Gotlibovna Shpolvind, Mr Valentin Vasilyevich Borozdin, Mr Aleksey Valentinovich Vasendin, Ms Tatyana Arkadyevna Belykh, as well as Ms Nadezhda Pavlovna Vishnyakova, Mr Aleksandr Yuryevich Vishnyakov, and Mr Eduard Yuryevich Vishnyakov to pursue the proceedings in their late relatives-� stead.

14. The Court reiterates that where an applicant dies during the examination of a case his or her heirs may in principle pursue the application on his or her behalf (see Ječius v. Lithuania, no. 34578/97, § 41, ECHR 2000-IX). Furthermore, in some cases concerning non-enforcement of court judgments and length of proceedings, the Court recognised the right of the relatives of the deceased applicant to pursue the application (see Shiryayeva v. Russia, no. 21417/04, §§ 8-9, 13 July 2006 concerning the non-enforcement, and Horváthová v. Slovakia, no. 74456/01, § 26, 17 May 2005, in the context of the length of proceedings).

15. The Court notes that the rights at stake in the present case are very similar to those at the heart of the cases referred to above. Nothing suggests that the rights the applicants sought to protect through the Convention mechanism were eminently personal and non-transferable (see Malhous v. the Czech Republic [GC], no. 33071/96, § 1, 12 July 2001).

16. The Court has previously established that it is for the heir who wishes to pursue the proceedings before the Court to substantiate his or her standing to do so (see Belskiy v. Russia (dec.), no. 23593/03, 26 November 2009, and Streltsov and other -�Novocherkassk military pensioners-�cases v. Russia, nos. 8549/06 and 86 others, 29 July 2010). In the present case all the above listed relatives of the deceased applicants (except Mr Aleksey Valentinovich Vasendin) submitted succession certificates confirming their acceptance of the late applicants-� succession. Mr Vasendin did not submit any document of that kind.

17. In respect of Mr Yuriy Aleksandrovich Vishnyakov, the Court notes that he had died before lodging the complaint before the Court. The Court further notes that the Government accepted that Mr Vishnyakov-�s heirs could pursue the proceedings in their late relative-�s stead.

18. Therefore, the Court considers that Ms Tamara Vladimirovna Zavyalova, Ms Lyudmila Gotlibovna Shpolvind, Mr Valentin Vasilyevich Borozdin, Ms Tatyana Arkadyevna Belykh, Ms Nadezhda Pavlovna Vishnyakova, Mr Aleksandr Yuryevich Vishnyakov, and Mr Eduard Yuryevich Vishnyakov have a legitimate interest in pursuing the complaints in their late relatives-� stead.

19. In the view of the above, the Court finds that the above-mentioned heirs have standing to pursue their late relatives-� complaints. At the same time, the Court is not satisfied that Mr Aleksey Valentinovich Vasendin has the standing to pursue the complaint lodged by his late relative. Thus, it considers that it is no longer justified to continue the examination of the application in respect of Mr Valentin Feodosyevich Vasendin and concludes pursuant to Article 37 § 1 (c) of the Convention that the application in this part should be struck out of its list of cases.

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AND OF ARTICLE 1 OF PROTOCOL No. 1 TO THE CONVENTION

20. The applicants complained of the non-enforcement of 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.-�

21. The Government submitted that the liquidation of the company was not caused by the actions of the owner of its assets, i.e. the municipality. They further argued that the company had been a commercial enterprise that had operated independently of the authorities. They, therefore, submitted that its debts were not attributable to the State.

22. The applicant maintained that the debtor company was a State-run enterprise controlled by the State, which was responsible for its debts. In particular, the applicant submitted that the company was the only provider of transport services in the town of Kotlas, and that the rates for transport services in that municipality were regulated by the regional authorities.

A. Admissibility

23. The Court has held that the existing legal framework in Russia does not provide unitary enterprises with a degree of institutional and operational independence that would absolve the State from responsibility under the Convention for the debts of such companies (see Liseytseva and Maslov, cited above, §§ 193-204). In order to determine the issue of State responsibility for the debts of unitary enterprises the Court must examine whether and how the extensive powers of control provided for in domestic law were actually exercised by the authorities in the present case.

24. The Court notes that the debtor company was set up for providing transport services. In Liseytseva and Maslov (cited above, § 215) the Court admitted that, in the absence of further information such activity could be regarded purely commercial, as suggested by the Government.

25. The Court observes that the Government submitted that the company had been one of many transport companies working in the Arkhangelsk region and had not performed any public function. The applicant argued, in reply, that the company had a vital function for the population of Kotlas as it was the only provider of transport services in that town, and submitted that the rates for its services were subject to regulation by the regional authorities (see paragraph 22 above) (see Liseytseva and Maslov, cited above, §§ 208-14).The Government did not contest that information. Moreover, in several previous applications concerning similar domestic judgments in respect of the same enterprise the Court has found that the company did not enjoy sufficient institutional and operational independence from the authorities (see Mamedov and Others v. Russia [Committee], nos. 16264/09 and 6 others, § 7, 16 February 2017).

26. In the light of the above, the Court finds that the company did not enjoy sufficient institutional and operational independence from the authorities and dismisses the Government ratione personae objection. Accordingly, the municipality, and hence the State, is to be held responsible under the Convention for the debts owed by the transport company to the applicant in accordance with the final judgments in their favour. The Court therefore declares the complaints admissible.

B. Merits

27. The Court notes that it is not disputed between the parties that the judgments in the applicants-� favour either have remained unenforced or have been enforced in part (see the appended tables for the overall length of enforcement).

28. The Court has established above that the State is responsible under the Convention for the debts owed by the respondent company (see paragraph 26 above). By failing to comply with the judgments the national authorities prevented the applicants from receiving the money they could reasonably have expected to receive. The Court has found a violation of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention in respect of issues similar to those in the present cases (see Liseytseva and Maslov, cited above, §§ 208-24).

29. Accordingly, there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention on account of the non-enforcement of the final and binding judgments in the applicants-� favour.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

30. Article 41 of the Convention provides:

-�If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.-�

31. Most of the applicants claimed the outstanding court awards in their favour (see the appended tables) in respect of pecuniary damage.

32. In respect of non-pecuniary damage each applicant claimed 2,000 euros.

33. The Government contested these claims reiterating their position that the State was not liable for the debts of the company, and, therefore, the applicants-� rights were not violated.

34. Regard being had to the documents in its possession and to its case-�law (see, in particular, Voronkov v. Russia, no. 39678/03, §§ 68-69, 30 July 2015), the Court considers it reasonable to award the sums indicated in the appended tables.

35. In the application no. 33725/10 Ms Olga Maksimovna Letovaltseva, Ms Dina Alekseyevna Mamontova, Ms Irina Aleksandrovna Mamontova, Ms Tatyana Pavlinovna Smirnova, Mr Andrey Igorevich Tyukavin made no claims in respect of pecuniary damage. Accordingly, the Court makes no award under this head as regards these applicants.

36. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;

2. Holds, in respect of application no. 3380/10, that Ms T. V. Zavyalova, Ms L. G. Shpolvind, Mr V. V. Borozdin, Ms T. A. Belykh, Ms N. P. Vishnyakova, Mr A. Yu. Vishnyakov, and Mr E. Yu. Vishnyakov have standing to continue proceedings in Mr V. Ye. Zavyalov-�s, Mr A. I. Shpolvind-�s, Mr N. Ye. Shcherbinin-�s, Mr A. N. Belykh, and Mr Yu. A. Vishnyakov-�s stead, and Mr A. V. Vasendin has no standing to continue proceedings in Mr V. F. Vasendin-�s stead;

3. Decides to strike the application no. 3380/10 in the part related to complaints of the deceased Mr V. F. Vasendin out of its list of cases in accordance with the Article 37 § 1 (c) of the Convention;

4. Declares the applications in the remaining parts admissible;

5. Holds that there has been a violation of Article 6 § 1 of the Convention and of Article 1 of Protocol No. 1 to the Convention;

6. Holds

(a) that the respondent State is to pay the applicants or their legal heirs indicated in the appended tables, within three months, the amounts indicated in the appended tables, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

7. Dismisses the remainder of the applicants-� claim for just satisfaction.

Done in English, and notified in writing on 13 February 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş AracıLuis López Guerra
Deputy RegistrarPresident

APPENDIX I

(Application no. 3380/10, lodged on 8 December 2009)

APPENDIX II

(Application no. 33725/10, lodged on 25 May 2010)