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FIRST SECTION

Application no. 9500/09
Pavel Vasilyevich MUSIYENKO
against Russia

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Pavel Vasilyevich Musiyenko, is a Russian national who was born in 1934 and lives in Zverevo, the Rostov Region. His application was lodged on 24 December 2008.

A.  Background information

The present application belongs to a group of 198 similar cases brought before the Court by the former employees of the “Obukhovskaya” coal mine and living in Zverevo.

B.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1.  Energy supply allowance

The applicant is a former employee of joint-stock limited liability company coal mine “Obukhovskaya” («??? «??????????», “the coal mine”). He is in receipt of an old-age pension as a former employee of the coal-mining industry. According to domestic classification, he resides in “comfortable living premises” («??????????????? ????? ?????????»).

In accordance with section 21 § 4 of the Federal Law No. 81- ?? of 1996, former employees of the coal-mining industry receiving the old-age pension were entitled to a monthly “coal supply”, or “energy supply” allowance. The allowance existed either in the form of monthly provision of coal free of charge or in a compensatory form, that is a right to be absolved from payment for energy supply. As a general rule, the persons concerned were entitled to receipt of a certain quantity of coal for heating of living premises, free of charge. If such persons resided in “comfortable living premises”, the amount of compensation for energy supply was to be excluded from a total amount of their monthly communal charges at the expense of respective coal-mining companies. These companies were under obligation to transfer funds allocated for this purpose to local budgets.

Municipal unitary company “Managing Company of Housing and Communal Services” of Zverevo («??? «??????????? ???????? ???» ?. ???????», “the municipal company”) was responsible for collecting communal charges from the applicant. Local authorities retained ownership of the company’s property, while the company exercised the right of economic control in respect of it.

2.  Initial judgment in the applicant’s favour

On 4 February 2003 the applicant sued the coal mine and the municipal company claiming a title to monthly energy supply free of charge. In their observations in reply both the coal mine and the municipal company argued that they were not due defendants in the case.

On 25 February 2003 the Justice of the Peace of the 1st Court Circuit of Zverevo of the Rostov Region granted the applicant’s claims. The Justice of the Peace confirmed that the applicant, as a former employee of the coal mine, was entitled to the energy supply allowance in the compensatory form as provided by the Federal Law No. 81 and therefore was not to be charged for energy supply. He further observed that communal charges were collectable by the municipal company. Accordingly, the Justice of the Peace obliged the municipal company

“to absolve [the applicant] from payment for energetic resources, at the expense of the [coal mine], as from the date of the [applicant’s] respective complaint [to the domestic court].”

The judgment was not appealed against and entered into force ten days later.

3.  Amendments into Federal Law No. 81-??

On 22 August 2004 a new Federal Law No. 122-?? (“the new Law”) amending several provisions of the Federal Law No. 81-?? was adopted. It entered into force as of 1 January 2005.

In accordance with section 77 § 23 of the new Law, social protection of the employees of the organisations operating in the coal-mining industry was to be exercised “in accordance with the legislation of the Russian Federation, agreements («??????????») and collective agreements («???????????? ????????»)” at the expense of those organisations.

Organisations operating in the coal-mining sector were obliged to provide coal free of charge at its own expense to retired employees of these organisations residing in stove-heated living premises.

A reference to the allowance in the form of the right to be absolved from payment for energy supply was excluded from the respective text of the Federal Law No. 81-??.

Section 153 § 1 of the new Law stipulated as regards continuing situations existing in respect of persons who had obtained a right to receipt of allowances either in kind or in compensatory form prior to 1 January 2005 in accordance with the statutory provisions annulled or amended by virtue of the amendments introduced by the new Law, that application of the new Law should not be to the detriment of exercise of the right to compensation, allowances and guarantees acquired prior to 1 January 2005, in the form and within the limits established by the new Law.

4.  Liquidation of the coal mine

At some point in February 2005 the coal mine was wound up. It appears that a major part of its assets was transferred to a newly-created joint stock limited liability company “OAO Mining Management Department “Obukhovskaya” («??? ??????????????? «??????????»). The applicant did not submit further information in this respect.

5.  Position of domestic authorities

According to the applicant, as from 1 January 2005 the municipal company resumed charging him for coal supply.

On 17 May 2005 the prosecutor’s office of Zverevo examined a complaint by a private person, apparently a former employee of the coal mine. He advised him that in accordance with the newly-introduced legislative amendments into Federal Law No. 81-?? the employees of the coal-mining industry residing in stove-heated premises remained entitled to the allowance in kind, that is to receipt of coal on a monthly basis. However, pensioners residing in “comfortable living premises” in principle could no longer be absolved from payment for energetic recourses supply. At the same time, he observed that the judgments in favour of the pensioners concerned were not quashed by way of supervisory review. The prosecutor therefore concluded that the judgments remained in force and were to be executed by the respondent municipal company.

It appears that at some point a state-owned unitary company “Donenergo” responsible, notably, for electricity supply and maintenance and related services in the Rostov Region, initiated several sets of court proceedings against former employees of the coal mine claiming reimbursement of unpaid compensation for coal supply. It appears that no action was brought against the applicant at that point.

6.  Ruling of the Constitutional Court of 20 February 2007

On 20 February 2007 the Constitutional Court of the Russian Federation rejected a request by two Zverevo pensioners for review of constitutionality of section 153 of the new Law (see above), having found that the latter provision was, in fact, not applied by domestic courts in any proceedings to which the claimants were parties, and therefore their request was incompatible ratione materiae. At the same time, the court observed that pursuant to section 21 of the Federal Law No. 81-?? retired employees of the coal-mining industry had been absolved from payment for supply of “energetic resources” to local budgets at the expense of coal-mining companies. The respective funds had been transferred to local budgets by the coal mines concerned. That provision had been amended by the new Law. However, section 153 of the new Law explicitly provided that application of the respective amendments should not have been to the detriment of exercise of the right to compensation acquired prior to 1 January 2005. The court concluded that section 21 of the Federal Law No. 81 remained in force in respect of the complainants, and they remained entitled to the energy supply allowance until a respective employer company operating in the coal mining industry was liquidated. Accordingly, in any event there were no grounds to consider that the complainants’ constitutional rights were infringed by the new legislation.

7.  Agreement of 16 November 2007

In 2007 former employees of the coal mine, as well as employees of Z., another local coal mine, initiated a large-scale campaign against annulment of the coal supply allowance.

As a result of the campaign, on 16 November 2007 the Zverevo Town Administration and the representatives of the pensioners concerned agreed, in particular, that the Town Administration undertook to implement the following measures: (a) to reach an agreement with the “Donenergo” company, so that the company discontinued the court proceedings against the pensioners concerned until the source of finance in respect of the energy supply is determined; (b) to apply to the Administration of the Rostov Region for writing off the debt accumulated as a result of previous non-payment of charges for energy supply; (c) to accept applications from the persons concerned for financial assistance; (d) to write off the debt accumulated during the period until 1 October 2007 and to start calculating the respective debt in respect of the unpaid compensation for energy supply as from 1 November 2007.

8.  Subsequent developments

It appears that at some point the “Donenergo” company was reorganised into a joint stock limited liability company “OAO Donenergo”.

On 13 August 2008 the prosecutor’s office of Zverevo formulated the opinion that enforcement of judgments in favour of several claimants, including the applicant, was no longer possible since it would be to the detriment of the municipal company’s and the coal mine’s rights. He further observed that since 1 January 2008 the “OAO Donenergo” company resumed bringing court actions against the pensioners for reimbursement of unpaid energy supply. It appears that the applicant has not been sued in such proceedings. He submits that the judgment in his favour has remained unenforced, because the municipal company has been charging him for energy supply since 2005.

COMPLAINTS

The applicant complains under Article 6 of the Convention and Article 1 of Protocol No. 1 about non-enforcement of the initial judgment in his favour.

He may be understood to complain, without referring to any Convention provision, that his pension was too small for survival, especially given the latest developments in his case.

QUESTIONS TO THE PARTIES

1.  Did the applicant comply with the six-month requirement in respect of his complaint about non-enforcement of the judgment of 25 February 2003? In particular, was the start of the six-month period in the present case triggered by any of the following events:

(a)  introduction of the legislative amendments in the provisions of the Federal Law No. 81-?? by virtue of the Federal Law no. 122-??, in force as from 1 January 2005;

(b)  liquidation of the joint-stock company coal mine “Obukhovskaya” («??? «??????????»).

The parties are requested to specify an exact date of winding-up of the joint stock limited liability company “Obukhovskaya” («??? «??????????»).

2.  Is the initial judgment in the applicant’s favour still in force in respect of the applicant? Has it been quashed or modified? Has it lost its binding force as a result of the change of the legislative framework pursuant to adoption of the Federal Law No. 122-?? in force as of 1 January 2005 (see, in so far as relevant, Bulgakova v. Russia, no. 69524/01, § 41, 18 January 2007; and Sukhobokov v. Russia, no. 75470/01, § 26, 13 April 2006)? Reference is being made to the provisions of section 153 of the above Law stipulating that the amendments introduced by the Law should not be to the detriment of exercise of the right to compensation acquired prior to 1 January 2005. The Government are invited to provide clarifications as to whether that provision was applicable to the applicant’s case and to cite examples from the domestic practice regarding interpretation and application of the relevant provisions of the Federal Law No. 122-??.

3.  Assuming that the initial judgment in the applicant’s favour has remained in force by the date of his complaint to the Court and that he complied with the six-month rule as required by Article 35 § 1 of the Convention:

(a)  Is the debt owed by the municipal “Managing Company of Housing and Communal Services” of Zverevo («??? «??????????? ???????? ???» ?. ??????? », “the municipal company”) to the applicant imputable to the State within the meaning of Article 34 of the Convention and, if so, to what extent (see, mutatis mutandis, Aleksandrova v. Russia, no. 28965/02, § 15 et seq., 6 December 2007)? The parties are invited to address, in so far as relevant and appropriate, the following points:

(i)  What was the municipal company’s legal status under the domestic law? The Government are invited to submit an entire copy of the company’s Rules.

(ii)  Has the debtor company’s insolvency been caused by the State, and if yes, to what extent (see, mutatis mutandis, Katsyuk v. Ukraine, no. 58928/00, §§ 42-44, 5 April 2005, and Burak v. Ukraine (dec.), no. 20668/02, 23 October 2007)?

(iii)  Did the debtor company participate in the exercise of governmental powers, run a public service or perform other public duties under the control or supervision of the State authorities (see, Radio France and Others v. France (dec.), no. 53984/00, ECHR 2003-X (extracts), with further references; see also, by way of contrast, Novoseletskiy v. Ukraine, no. 47148/99, § 82, ECHR 2005-II (extracts)? Did it enjoy powers beyond those conferred by ordinary private law in the exercise of its activities (see, mutatis mutandis, Islamic Republic of Iran Shipping Lines v. Turkey, no. 40998/98, § 81, ECHR 2007-V)?

(iv)  Did the debtor company enjoy sufficient operational and institutional independence from the State? (see, among others, Lisyanskiy v. Ukraine, no. 17899/02, § 19, 4 April 2006; Cooperativa Agricola Slobozia-Hanesei v. Moldova, no. 39745/02, §§ 17-19, 3 April 2007; Grigoryev and Kakaurova v. Russia, no. 13820/04, § 35, 12 April 2007; and R. Kacapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 97-98, 15 January 2008). In particular, to what extent were the debtor company’s assets controlled and managed by the State (compare, in so far as relevant, Khachatryan v. Armenia, no. 31761/04, § 51, 1 December 2009)? Did the State authorities dispose of the debtor company’s assets as they saw fit (see Chernobryvko v. Ukraine, no. 11324/02, §§ 23-24, 4 October 2005)?

(b)  Given the nature of the award in the applicant’s favour pursuant to the judgment of 25 February 2003, did it constitute a “possession” within the meaning of Article 1 of Protocol No. 1?

(c)  Has the initial judgment in the applicant’s favour been fully and timeously enforced? If not, has the State’s continuing failure to enforce them violated the applicants’ right to a court under Article 6 of the Convention and their right to peaceful enjoyment of their possessions under Article 1 of Protocol No. 1?