Постановление Европейского суда по правам человека от 08.04.2010 «Дело Ершова (Yershova) против России» [англ.]

epts responsibility for the designated use of the facilities within one month of receipt of the respective notification from the insolvency manager (section 104 § 4). Transfer of the facilities to the municipal authorities is conducted as is ("по фактическому состоянию") without further conditions. The facilities are financed from the respective budgets (Article 104 § 5).

2. Ruling No. 8-П of 16 May 2000
by the Constitutional Court

43. By Ruling No. 8-П of 16 May 2000 the Constitutional Court of the Russian Federation verified the compatibility of Article 104 § 4 of the Federal Insolvency Act with the Russian Constitution. The Court held, in particular:
"4. [...] Communal infrastructure having vital importance for a region constituting a debtor's estate is being used not only in the owner's private interests but also in the public interests protected by the State. Therefore, the relations concerning its functioning and use for a designated purpose are public in nature. In regulating this area, the legislator may decide, with regard to public purposes, that certain objects necessary for the survival of the population may be transferred to the relevant municipal authority in the course of the insolvency proceedings. [This... serves the purpose of] redistribution of social functions between public authorities at different levels".
The Constitutional Court decided that the provisions allowing the transfer of various objects of special importance to society, including communal infrastructure objects, to local authorities were put in place in order to ensure that their designated use complied with the Constitution of the Russian Federation. However, the practical interpretation of these provisions by the domestic courts might have contradicted their constitutional meaning. The Constitutional Court found that these provisions could not be interpreted as allowing for the transfer of such facilities to local authorities without payment to creditors during insolvency proceedings, of reasonable and fair compensation which is able to secure a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. The court further held the said provision to be unconstitutional in so far as it allowed the property transfer without effective judicial control.

THE LAW

I. Alleged violation of Article 6 of the Convention
and Article 1 of Protocol No. 1

44. The applicant complained, under Article 1 of Protocol No. 1 to the Convention, that the judgments of 7 December 2000 and 3 December 2001 had not been enforced. The Court will examine this complaint under Article 6 of the Convention and Article 1 of Protocol No. 1 thereto. These provisions, in so far as relevant, read as follows:
Article 6
"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. Admissibility

1. Alleged abuse of the right of petition

45. The Government submitted that the amount awarded by the judgment of 7 December 2000 had been paid to the applicant by the debtor company between October 2000 [sic] and



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