Expert opinion (Amicus Curiae) on the application and interpretation of the case-law of the European Court of Human Rights in criminal proceeding № 52017000000000361
KHPG submits the full text of the Amicus Curiae, prepared by two Ukrainian and two Polish experts, sent to the European Court for consideration in the case of lifting the immunity of former MP Heorhiy Logvynsky, which follows from the immunity of his wife Hanna Yudkivska, a judge of the European Court of Human Rights.
Kharkiv Human Rights Protection Group (KHPG) and the Regional Centre for Human Rights (RCHR) with the participation of the international law experts, upon the request of the lawyer H.V. Lohvynskyi, analysed the criminal proceeding No. 52017000000000361, registered in the Unified State Register of the Pre-Trial Investigations on 01.06.2017, based on the essential element of criminal offense, provided for by part 2 of Art. 28, part 2 of Art. 364, part 5 of Art. 191, part 3 of Art. 209, part 1 of Art. 357 of CC of Ukraine, and amicus curiae was prepared on the issues of the interpretation of the practice of the European Court of Human Rights (ECHR), in the given proceeding.
Kharkiv Human Rights Protection Group filed the requests to the lawyers of the suspects in the given enforcement proceedings to receive the case materials for the complete and comprehensive analysis and received the materials upon the requests with regard to the provision of this expert opinion, and the requests on the involvement of specialists for the preparation of opinions on the issues of implementation and interpretation of the practice of the European Court of Human Rights in the present criminal proceeding.
The tasks set in front of KHPG and RCHR need the specialized knowledge in the sphere of the implementation of the Convention (1950) which the lawyers and law specialists do not possess for some objective reasons. This is, first of all, connected with the fact that to settle these issues the specialist shall not only have the profound theoretical knowledge of the Convention (1950) but also of the RCHR practice as to its implementation, which is dynamic and has its peculiarities not inherent to the law enforcement in the Ukrainian legal system. Besides, it is worth noting that rulings of the RCHR are available in the Ukrainian translation only with regard to the cases against Ukraine, while the rest are not published in Ukrainian.
It means that to answer the questions of presence or absence of the reasons for a person to apply to RCHR, to understand the position of RCHR in the typical “pilot” cases, the procedure of cases consideration with the RCHR, etc., one shall have the specialized knowledge in the sphere.
The practice of Amicus Curiae application is quite widespread in the international courts, in particular in the RCHR, and, according to part 3 of Art. 69 of the Law of Ukraine “On the Constitutional Court”, on the issues submitted for consideration by the Court, Senate or the Grand Chamber, the written grounded legal opinions (amicus curiae) may be filed.
Therefore, and with regard to Art. 71 of the Criminal Procedural Code of Ukraine, the specialists involved in the International Expert Group, provided this Expert Opinion (amicus curiae) for further application during the investigation and court hearing in the criminal Proceeding No. 52017000000000361.
KHPG and RCHR created the International Expert Group which involved the well-known experts in human rights and in specialized in practices of the European Court of Human Rights, mainly:
Andrzej Rzepliński (Poland), professor, chair of the Department of Criminology and Criminal Policy of Warsaw University, President of the Constitutional Tribunal of the Republic of Poland 2010-1016, author and co-author of 19 legislative acts, including the following: Constitution of the Republic of Poland (1993), Punitive Sanctions Fulfilment Code (1986); Supreme Court (1990), National Judicial Power Board (1990), Charter of Rights and Freedoms (1992); The rights of Persons belonging to the National Minorities (1995); Institute of the National Memory (1998), Expert of UN, CE and OSCE in 1990-2007, author of more than 300 scientific publications, member of Helsinki Committee in Poland, Secretary of the Board of Helsinki Human Rights Fund (Warsaw), founder of the human rights organizations Polish Section of the International Lawyers Commission (1992), Centre of the Press Freedom Monitoring (1996); was awarded the Knighthood Crest Polonia Resitituta (1997); Commander Crest of the Great Prince Gediminas (Lithuania, 2013); Pro Ecclesia et Pontifice (Vatican, 2015), Doctor h.c. of Osnabrück University (2016).
Andrii Kosylo (Poland), Senior Lecturer of the Department of Criminology and Criminal Policy of the Warsaw University, Lawyer, Executive Partner of the International Law Firm Kosylo & Partners, member of the International Association of Penal Law (France), Expert of the European Commission in EU Project: “Support to Criminal Judicial Reforms in Uzbekistan” (2014); Expert in the sphere of the practice of European Court of Human Rights. Key directions of the studies: Practice of the European Court of Human Rights with regard to the life imprisonment, International Standards of Law for protecting in the Criminal Proceeding, Judicial Reform in Ukraine author of many scientific publications.
Roman Martynovsky, Lawyer, Chair of the Board of the Ukrainian Legal Aid Foundation, co-founder and Expert of the Regional Centre of Human Rights, National Expert for the European Anti-Discrimination Standards, International Mechanisms of the Human Rights Protection, practices of the European Court of Human Rights, transitional justice, protection of the rights of the IDPs and implementation of the norms of international human rights law in the conditions of the military conflict, author of many scientific, methodological, and educational publications in the sphere of practice of the European Court of Human Rights, criminal proceeding, international criminal law, international humanitarian law, and international human rights law, in particular, the manual “General principles of the interpretation of the provision of Convention for Human Rights and Fundamental Freedoms and implementation of the practice of the European Court of Human Rights within the specific cases” (2015), editor of the Ukrainian publication (Options for justice. А Handbook for designing accountability mechanisms for grave crimes (2019).
Gennadii Tokarev, a lawyer, one of the creators of the system of rendering the free legal aid, National Expert for these issues and for the issues of the international mechanisms of the human rights protection in particular, the practice of the European Court of Human Rights, Founder and Leading Expert of the network rendering the legal aid to the drug users and HIV/AIDS, since 2012 Director of the Centre for the Strategic Affairs of Kharkiv Human Rights Group annually handling approximately 200 cases in the national courts and RCHR, he prepared and supervised the preparation of the alternative reports for 6th and 7th periodic report of Ukraine to UN Committee against the tortures on the fulfilment of the UN Convention against the tortures, 490 Applications to the ECHR, neither of which was dismissed by the Court as unacceptable, 75 cases won, 80 cases passed the communication and are waiting for the decision on the merits, 335 cases are waiting for communication.
Heorhii Lohvynskyi set the following questions for analysis:
1. What are the bases and criteria developed by ECHR in the cases with regard to non-fulfilment of the court rulings like “Yurii Mykolaiovych Ivanov vs. Ukraine” (No. 40450 dated 15.10.2009), in the presence of which the person’s claim against the state will be acceptable? In what cases the state shall be liable for non-fulfilment of a court ruling?
2. Does a plaintiff lose his right to recourse to the ECHR with the claim against the state in connection with non-fulfilment of the final court ruling of the national court by the subject behind the debtor who is 25% and more owned by the state, through concluding an agreement of assignment of claim under such court ruling with the other person, unless the party was replaced under the ruling of a national court in the court procedure?
3. Are the reasons in the case materials, according to the practice of ECHR, substantial to recourse to the ECHR with the claim against Ukraine on the part of Zolotoi Mandaryn Oil LLC? Can the grounds of Zolotoi Mandaryn Oil LLC to recourse to the European Court of Human Rights be considered artificially created?
4. Did the authorized representative of the Government for the ECHR have the right to conclude on July 22, 2015 the declaration on the amicable case settlement based on the statement of Zolotoi Mandaryn Oil LLC with regard to the norms of the national and international law, acting at that period, and can the violations in the procedure of the amicable settlement be stated?
5. Can the audio-control of a lawyer during his conversation with the client, authentication of a lawyer with the client be considered as violations of right to protection, which is a constituent component of the right to a fair trial provided for by article 6 of ECHR? Are there such violations based on the materials given for analysis?
Ukrainian experts analysed all five questions, and Polish experts analysed four, except for question (2), because this question requires the profound investigation of Ukrainian National Law.
Brief description of the answers to these questions:
Answer to Question 1
According to the practice of the Court, in order for an application to the ECHR on violation of article 6 (1) of the Convention in the context of non-fulfilment of the court ruling against the state agency or company to have perspective for the satisfaction, the following conditions must be fulfilled:
- availability of the final ruling of the national court;
- the state share is 25 and more percent in the registered capital of the company-debtor as of the moment of the ruling passed by the National Court.
To file the claim with the ECHR, the previous recourse to the executive service is not necessary if both abovementioned conditions are fulfilled.
Usually the Court considers the term of at least 14 months the long-lasting non-fulfilment of the ruling, but the shorter period cannot be excluded as the violation, considering the specific case conditions.
Answer to Question 2
Under the Convention, the state is responsible for fulfilment of a final court ruling. A plaintiff shall not lose his right to recourse to the ECHR against the state in connection with non-fulfilment of a final court ruling of the national court in case of concluding an agreement of assignment of claim under such ruling with the other person, unless the creditor was replaced in the court procedure under a ruling of a national court. Since in case of Zolotoi Mandaryn Oil LLC there was no such replacement, the State had the Conventional obligation to Zolotoi Mandaryn Oil LLC to provide for the fulfilment of this ruling and the company was the “victim” according to article 34 of the Convention with regard to its non-fulfilment.
Answer to Question 3
According to the pilot ruling in the case “Yurii Mykolaiovych Ivanov vs. Ukraine”, the following can be considered the essential reasons for recourse to the Court, according to ECHR:
a) presence of the final court ruling;
b) non-fulfilment of such ruling;
c) non-fulfilment as of the moment of a recourse exceeding a “reasonable term” (at least 14 months)
Grounds may be considered as artificially created if they are based on the deceitful facts and information, in confirmation of which falsified evidence is provided. The case materials do not contain the confirmation that the information provided to the Court in the statement of Zolotoi Mandaryn Oil LLC was deceitful.
The issue whether the situation described and proved by the plaintiff gives grounds for establishing violation of rights under the Convention, may not be considered within the terms of “artificial grounds”. Even if the Court acknowledges that the statement does not provide grounds to acknowledge violation or is unacceptable due to the non-conformity with certain criteria, we can only speak about the ungrounded statement and not about artificial grounds. Otherwise, it should have been acknowledged that 98% of applications filed to the ECHR were based on “artificial” grounds, let alone the millions of claims to the national courts left unsatisfied.
In this case, grounds for recourse to ECHR were not only not “artificial” but, to the contrary, as of the moment of recourse of Zolotoi Mandaryn Oil LLC to ECHR, all the necessary and substantial grounds were available for such recourse, according to the practice of ECHR, including, the pilot ruling in the case of “Yurii Mykolaiovych Ivanov vs. Ukraine”:
a) presence of the final ruling of the Commercial Court of Kyiv against the State Enterprise (according to the Convention) “Joint Stock Energy Supply Company “Kyivenerho”;
b) non-fulfilment of such ruling;
c) non-fulfilment as of the moment of the recourse exceeding the “reasonable term” (in particular, more than 14 months)
Definition of such grounds as “artificial” is legally ungrounded.
The reference to the artificiality of the grounds of recourse of Zolotoi Mandaryn Oil LLC to ECHR is based on the false interpretation of the Convention requirements and practices of the European Court of Human Rights with regard to the problematics of non-fulfillment of court rulings. The studied case materials demonstrate that the company had all the grounds for recourse to this international judicial institution and the State had the conventional obligation to Zolotoi Mandaryn Oil LLC in respect of the compulsory fulfilment of the court ruling.
Answer to Question 4
Judging by the case facts, based on the Convention for Human Rights and Fundamental freedoms, Regulations of ECHR and Provision on the Authorized Representative for the European Court of Human Rights, the Authorized Representative had the right to offer conclusion of an agreement on amicable dispute settlement in the case of “Zolotoi Mandaryn Oil LLC vs. Ukraine” and to sign it. No violations were found in terms of applicable regulatory legal acts or requirements of the Convention or practice of the ECHR during the execution of this amicable settlement, judging by the case files.
Answer to Question 5
Voice interception between a lawyer and the client and involvement of lawyers to the operative search activity, which led to the disclosure of the secrecy of conversation between a lawyer and the client, undoubtedly, shall be considered as violation of right of protection guaranteed by article 6(3)(с) of the Convention. Such interception is also the violation of Article 8 of the Convention, since it is not based on the law, which may also lead to the violation of the right to a fair trial guaranteed by article 6(1) of the Convention.
Expert opinion (Amicus Curiae)
Regarding the issue 1:
What are the grounds and criteria developed by the ECHR in cases of non-enforcement of a court ruling, such as “Yurii Mykolaiovych Ivanov v. Ukraine” (No. 40450, 15.10.2009), in the presence of which a person’s complaint to the Court against the state would be admissible? In which cases is the state responsible for non-enforcement of a ruling of the Court?
The general criteria for applying to the ECHR is the alleged violation of rights and freedoms, guaranteed by the Convention when other national remedies within the prescribed time are exhausted.
Complaints on non-enforcement of court rulings have their own peculiarities.
According to the case law of the European Court of Human Rights, the right to enforce of such rulings, passed by any court, is an integral part of the “right to a trial” (Hornsby v. Greece, No. 18357/91,19.03.1997, § 40; Scordino v. Italy (no. 1), No. 22774/93, 28.07.1999, [GC], § 196). Otherwise, the provisions of Article 6 (1) would be deprived of all useful effect (Burdov v. Russia, No. 59498/00, §§ 34 and 37, 07.05.2002).
The ECHR further reiterates that it is the State’s obligation to ensure that final ruling against its organs, or entities or companies owned or controlled by the State, is enforced in compliance with the above mentioned Convention requirements (Yurii Mykolaiovych Ivanov v. Ukraine, No. 40450, 15.10.2009). “It is not open to a State authority to cite lack of funds as an excuse for not honouring a final ruling debt”. (Shmalko v. Ukraine, No. 60750/00, § 44, 20.07.2004). “The State is responsible for the enforcement of final rulings if the factors impeding or blocking their full and timely enforcement are within the control of the authorities (Yurii Mykolaiovych Ivanov v. Ukraine, No. 40450, 15.10.2009).
Moreover, in the case of “Yurii Mykolaiovych Ivanov v. Ukraine, No. 40450, 15.10.2009, the Court notes that in deciding the admissibility of the application in the event of non-enforcement of the final ruling of the national court against the state, or entities or companies, the very fact of issuing a final court ruling is sufficient. “… A person who has obtained a final ruling against the State cannot be expected to bring separate enforcement proceedings…. In such cases, the defendant State authority which was duly notified of the ruling must take all necessary measures to enforce it or to refer it to another competent authority for enforcement” (§ 46) . The European Court of Human Rights finds that “the applicant cannot be criticised for not lodging with the Enforcement Service an application, or a writ of execution, for the initiation of enforcement proceedings” (§ 48).
Accordingly, it is first necessary to determine which debts of companies the State is responsible for.
As the legislation of each States Parties to the Convention is different and degree of State influence over the activities of economic entities varies according to the provisions of the national law, the Court has developed a general approach to assessing the liability of the State for the debts of a legal entity, which depends on how strongly the authorities of a particular country are involved in the activities of such legal entity.
Regarding Ukraine, the Registrar of the European Court of Human Rights in his letter No. 6546690 dated October 25, 2019 to the Commissioner of the Government of Ukraine for the European Court of Human Rights, answering the question on whether “the State is responsible in respect of non-enforcement or lengthy non-enforcement of rulings where the debtor is a separate legal entity”, noted the following:
“…the relevant case-law is as follows:
In the case of Alisic and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former Yugoslav Republic of Macedonia [GC], no. 60642/08, §§ 114-115, ECHR 2014, the Court summarised its case-law on situations in which the State could be found responsible not only for organising proper enforcement of domestic rulings, but also for debts of separate legal entities:
“114. ...the Court reiterates that a State may be responsible for debts of a State-owned company, even if the company is a separate legal entity, provided that it does not enjoy sufficient institutional and operational independence from the State to absolve the latter from its responsibility under the Convention (see, among many other authorities, Mykhailenky and Others v. Ukraine, nos. 35091/02, 35196/02, 35201/02, 35204/02, 35945/02, 35949/02, 35953/02, 36800/02, 38296/02 and 42814/02, §§ 43-46, ECHR 2004-XII; Cooperativa Agricola Slobozia-Hanesei v. Moldova, no. 39745/02, §§ 17-19, 3 April 2007; Yershova v. Russia, no. 1387/04, §§ 54-63, 8 April 2010; and Kotov, cited above, §§ 92-107)”.
The key criteria used in the above-mentioned cases to determine whether the State was indeed responsible for such debts were as follows: the company's legal status (under public or private law); the nature of its activity (a public function or an ordinary commercial business); the context of its operation (such as a monopoly or heavily regulated business); its institutional independence (the extent of State ownership); and its operational independence (the extent of State supervision and control).
In addition to Mykhailenky and Others v. Ukraine (cited above), in which the debtor was a construction company operating in the Chernobyl alienation zone, the Court found the State responsible for debts of companies;
- in which the State was an owner or a majority shareholder - the mine in question is a state-owned enterprise and “the state is liable for the debts of legal persons controlled by it financially or administratively” Romashov v. Ukraine, no. 67534/01, § 41, 27 July 2004; or
- in which the enforcement proceedings against a company were seriously limited due to the existence of a statutory ban on execution of rulings.
In Ukrainian cases situations arose, inter alia, due to the Law of November 29, 2001 introducing a moratorium on the forced sale of property (The Law of Ukraine “on the Introduction of a Moratorium on the Forced Sale of Property”) which was intended to protect State interests on the sale of assets belonging to undertakings in which the State held at least 25% of the share capital (see Burmych and Others V. Ukraine [GC], nos. 46852/13 et al, § 98, dated October 12, 2017). Thus, as one example among many, in a case where the State owned 26.1% of the debtor-company's share capital the Court held the State responsible for the impugned non-enforcement because as a result of the above-mentioned law the company's property could not be sold (see Rotar v. Ukraine, no. 34126/05, § 12, dated October 15, 2009).
It also can be added that in the case of Miroshnychenko and Hrabovska v. Ukraine (No.32551/03 and 33687/03) the JSC “Chuhuivska Toplyvna Aparatura” with 32.67% of the shares owned by the State was a debtor. The Court recalls that the responsibility of a State is engaged if Convention rights and freedoms are affected as a result of the enactment of domestic legislation (see Young, James and Webster v. the United Kingdom, ruling of August 13, 1981, Series A no. 44, p. 20, § 49). The Court finds that in the present case the debtor company was undoubtedly a State-owned enterprise within the meaning of Article 1 of the Law “on the Introduction of a Moratorium on the Forced Sale of Property”. It attracted the application of the moratorium, barring the attachment and sale of the Company’s assets. As such, the responsibility of the respondent State for any resultant breach of the Convention is thus engaged on this basis.
Therefore, according to the case law of the ECHR, in relation to Ukraine, all enterprises referred to in Article 1 of the Law "On the introduction of a moratorium on forced sale of property" - i.e. all enterprises with a state share of 25 percent or more - are state-owned within the meaning of the Convention, and therefore is responsible for their debts.
Once the fact of state responsibility has been established, another important factor is that in such a case, recourse to the enforcement service, as defined by the ECHR, is not an effective remedy.
In the previously mentioned, first pilot ruling Yurii Mykolaiovych Ivanov v. Ukraine (application No. 40450/04, 15.10.2009), the government’ objections as to the admissibility of the Applicant’s complaint concerned that, in the view of the Government, the Applicant did not apply to the enforcement service with a writ of execution and thus did not exhaust domestic remedies available.
In the paragraph 46 of the following case, the Court reiterates that that a person who has obtained a final ruling against the State cannot be expected to bring separate enforcement proceedings (see Metaxas v. Greece, no. 8415/02, § 19, 27 May 2004, and Lizanets v. Ukraine, no. 6725/03, § 43, dated May 31, 2007).
In paragraph 65 of the case (regarding the availability of effective remedies in the national system), the Court appealed to the ruling of Burdov v. Russia (no. 2) (No. 33509/04, ECHR 2009) and reiterates repeatedly that “the burden to comply with such a ruling lies primarily with the State authorities, which should use all means available in the domestic legal system in order to speed up the enforcement, thus preventing violations of the Convention”. The Court finds that there is nothing in the parties’ submissions to suggest that there existed a remedy at national level satisfying the requirements of Article 13 of the Convention in respect of the non-enforcement of the rulings.
Moreover, even if the mechanisms to challenge the ineffectiveness of enforcement proceedings under national law existed, the Court emphasized that they were not binding if such enforcement depended not on the actions of the enforcement agents but on legislative regulation by the State.
In § 20 of the ruling in the case of Kozachek v. Ukraine (No. 29508/04, 07.12.2006), the Court recalls that it held it inappropriate to require an individual who has obtained a final ruling against the State at the end of legal proceedings to then bring enforcement proceedings to obtain satisfaction. These considerations can be equally pertinent to the enforcement of rulings against the companies, which did not enjoy sufficient institutional and operational independence from the State or in respect of which the ban on the attachment of property was applied. For example, the Court referred in particular to the case of Rudenko v. Ukraine, “No. 114112/02, 29.11.2005) in which, despite the fact that the State did not own the majority of the shares of the debtor company, it was granted immunity under national law from seizure of its property because the State owned more than 25% of its shares under a moratorium on the forced sale of property that belong to state-owned enterprises, introduced by the Decree of the President of Ukraine of May 23, 2001. Thus, the rulings were not enforced due to the state's adoption of certain restrictive legislative measures, and not due to shortcomings in the enforcement proceedings.
As to the time limits for appealing to the ECHR with complaints of prolonged non-enforcement of a ruling, the answer to the question of what the minimum period of non-enforcement would be in breach of the Convention is contained in the case-law of the Court.
As stated in § 53 of the ruling in the case Yurii Mykolaiovych Ivanov v. Ukraine, an unreasonably long delay in the enforcement of a binding ruling may therefore breach the Convention. The reasonableness of such delay is to be determined having regard in particular to the complexity of the enforcement proceedings, the applicant’s own behaviour and that of the competent authorities, and the amount and nature of the court ruling. A delay of one year and four months in the enforcement of a monetary award against the State body has been found by the Court to be excessive (see Zubko and Others v. Ukraine, No. 3955/04, 5622/04, 8538/04 and 11418/04, dated 26.04.2006). In the case of Shmalko v. Ukraine (No. 60750/00, dated July 20, 2004), the Court notes that “By failing for 1 year, 2 months and 8 days to take the necessary measures to comply with the final judicial ruling in the present case, the Ukrainian authorities deprived the provisions of Article 6 § 1 of all useful effect (§ 46), and found a delay of more than 14 months a violation of the Convention.
Answer to the issue 1:
According to the Court's case law, in order for an appeal to the ECHR alleging a violation of Article 6 (1) of the Convention in the context of non-enforcement of a ruling given against a State entity or company to be satisfied, the following is sufficient:
- the availability of a final ruling of the national court;
- the availability at the time of the ruling by the national court in the share capital of the debtor company share of 25 percent or more belonging to a State.
No prior application to the Enforcement Service is required to lodge an application with the European Court of the Human Rights if both of the above-mentioned conditions are present in the case.
The Court usually considers a period of at least 14 months to be a long-term non-enforcement of a ruling, but it cannot be ruled out that the Court will perceive a shorter period as a violation, taking into account the circumstances of the particular case.
Regarding the issue 2:
Does the Applicant lose the right to appeal to the European Court of Human Rights against the State in connection with the non-enforcement of the final ruling of the national court, the debtor of which is an entity with the state-owned stake of 25% or more, by concluding the Claim Assignment Agreement with another person, provided that the replacement of a party in the case has not been carried out by the ruling of a national court?
As noted above, in accordance with the case law of the ECHR, the presence of a 25% or more share in the debtor entity in the state ownership allows the Applicant to apply to the Court against Ukraine without initiation any enforcement proceedings.
The case file shows that the accusation is based on the fact that the appeal to the ECHR for non-enforcement of the final court ruling concerns the responsibility of the state for illegal actions or inaction of public authorities, including the executive service. However, this interpretation is wrong. In the first pilot ruling Yurii Mykolaiovych Ivanov v. Ukraine (application No. 40450/04, 15.10.2009) and all the Court’s previous case-law , Article 6 of the Convention guarantees the enforcement of a final ruling against a public debtor, within the meaning of the Convention. Until such ruling is enforced, the creditor specified in the ruling remains a “victim” within the meaning go the Convention. For the Convention, it does not matter whether the officials acted under the current national law if the requirement of the Convention to enforce a final ruling against a public authority or company is violated, as it is for the State to enforce it.
Therefore, in cases such as Yurii Mykolaiovych Ivanov v. Ukraine, the availability of a final court ruling against a state authority or company, gives the creditor unconditional grounds to file a complaint for non-enforcement of the ruling. The process of enforcement itself, and the debtor’s commercial relations with the third parties during this enforcement do not change these grounds.
In this case, the existence of a final ruling in favour of ”Zolotoi Mandaryn Oil” LLC, which was to be enforced, is not in doubt. As long as this ruling existed and the creditor has not been changed in court, the State had a conventional obligation before ”Zolotoi Mandaryn Oil” LLC to enforce it, and accordingly the company had the right to apply with the European Court of Human Rights regarding the violation of the obligation by the State.
In this context, the following should be duly noted.
On April 10, 2013, the Claim Assignment Agreement between ”Zolotoi Mandaryn Oil” LLC and “Issakhar-Zevulun Import-Export” LLC was concluded, according to which ”Zolotoi Mandaryn Oil” LLC ceded in favour of ”Issakhar-Zevulun Import-Export” LLC the right of claim under the Judgement dated April 21, 2009, that is, the rights arising out of a ruling that has entered into force, which include the right to enforce it and to apply additional remedies in connection with its non-enforcement.
However, according to the provisions of Article 25 of the Commercial Procedure Code of Ukraine in the wording effective as of the date of applying with the ECHR, the relevant court ruling must be issued to replace the creditor. As explained by the Supreme Court in its ruling of December 05, 2018 in Case No. 643/4902/14-ц, in essence the replacement of the creditor in the obligation due to the Claim Assignment Agreement is a kind of succession and is possible at any stage of the process. In connection with the replacement of the creditor, there is a withdrawal of this person from the enforcement proceedings, and its replacement by a new creditor is carried out in accordance with part 5 of Article 15 of the Law of Ukraine “On Enforcement Proceedings (in force at the time of the contested rulings of the editorial board) at the request of the person concerned. Such party concerned is now a new creditor (successor). A similar conclusion was made by the Supreme Court of Ukraine in the ruling of November 20, 2013 in Case No.6-122цс13. Rulings that have entered into force are binding for all public authorities and local government bodies, enterprises, institutions, organisations, officials and citizens and are subjects to enforcement throughout Ukraine. The withdrawal of the original creditor and his replacement by a new one does not abolish the obligation to enforce the court ruling, while exercising the right to enforce the amounts awarded by the court is possible only by replacing the plaintiff in enforcement proceedings, because the new creditor does not has the right to apply to the body of the state executive service with a request for enforcement of the court ruling. Replacement of a party by a legal successor can take place both in open enforcement proceedings and in the absence of enforcement proceedings, i.e. it can be carried out at any stage of the proceeding.
Part 5 of the Article 8 of the Law of Ukraine “On Enforcement Proceedings” stipulates that in case of withdrawal of one of the parties, the state enforcement officer on his own initiative or at the request of a party, as well as the interested party itself has the right to apply to the court to replace the party with its successor. For the successor, all actions taken before his entry into the enforcement proceedings are binding to the same extent as they were binding on the party replaced by the successor.
In this case, the issue of replacement of the party by its successor, including in the case of replacement of the creditor in the obligation, is decided exclusively by the court in the manner prescribed by Article 25 of the Commercial Procedure Code of Ukraine.
Consequently, the Convention required the enforcement of the finals ruling of the Commercial Court of Kyiv. The fact of concluding the Claim Assignment Agreement without the ruling of the (Commercial) court to replace the party did not result in the replacement of the party (Creditor) in the enforcement proceedings.
In the following circumstances, it is unequivocal that in order to complete the process of transferring the rights of the Creditor by the court ruling of April 21, 2009, “Zolotoi Mandaryn Oil” LLC and “Issakhar-Zevulun Import-Export“ LLC had to apply to Kyiv City Commercial Court in order to replace the Creditor. And only in case when the Court makes such a ruling, the latter would acquire the right to enforce the ruling of April 21, 2009. Therefore, “Zolotoi Mandaryn Oil” LLC did not pass the rights to “Issakhar-Zevulun Import-Export” LLC under the court’s decision in accordance with the norms of procedural law.
The above-mentioned is also confirmed by the practice of the ECHR. As in case of Regent Company v. Ukraine (No. 773/03, 03.04.2008), the applicant company entered into the agreement with the Creditor. Subsequently, the Applicant company and the original creditor applied to the court for the recognition of the applicant company as a Creditor in the arbitral proceedings on the basis of the above-mentioned agreement. The Applicant company and the original Creditor then applied to the enforcement service to change the Creditor in the enforcement proceedings under the agreement. The court granted the claim of the Applicant company and declared it a Creditor in respect of the debt in accordance with the ruling. The enforcement service also replaced the original Lender with the Applicant company in the enforcement proceedings.
As the ruling was not enforced, the Applicant company applied to the ECHR. The Government stated that the ruling of the Court of Arbitration was final only in respect of the parties to the dispute and hence enforceable only in respect of the original Creditor and not in the respect of the Applicant company, which had indirectly acquired the right to pay arrears under the said ruling of the Court of Arbitration. In response, the court referred precisely to the rulings of the domestic courts, by which the Applicant company was recognized as a Creditor in the enforcement proceedings. In the Court's view, these rulings show that the Applicant company had an enforceable claim which constituted “property” within the meaning of Article 1 of Protocol No. 1 to the Convention (§ 61).
There is a contrary situation in the case of “Zolotoi Mandaryn Oil” LLC, where in the absence of rulings to replace the Creditor of “Zolotoi Mandaryn Oil” LLC had the right to claim a court ruling in its favour and after the conclusion of the Claim Assignment Agreement. It therefore lawfully took part in the enforcement proceedings in case No. 41/207, of which there were more than 50, and was fully entitled to the remedies provided for in the Convention.
“Issakhar-Zevulun Import-Export” LLC, despite the agreement with “Zolotoi Mandaryn Oil” LLC, did not receive the right of claim under the court ruling dated April 21, 2009, as the parties to the agreement did not take the necessary actions by law. This fact is confirmed by the subsequent nature of the activities of both companies, one of which (“Zolotoi Mandaryn Oil” LLC) continued to defend their property rights in court, and the other ("Issahar-Zevulun Import-Export” LLC) on the contrary awaited the results of the first company’s action, although its rights on this stage were violated.
The same conclusions can be drawn from the ruling in the case Promimpro Exports and Imports Limited and Sinequanon Invest v. Ukraine (No. 32317/10, dated August 10, 2019). Despite the fact that this ruling was made in September 2019, and therefore does not cover the legal relationship that existed in 2013-2015, its conclusions confirm the above position.
In particular, this ruling reiterated that the Convention obligation to enforce a ruling may pass to a new lender only by replacing the lender in the proceedings.
In addition, in this case, the original lender (Promimpro Exports) first appealed to the ECHR for a prolonged non-enforcement of the arbitral award in its favour, and then relinquished the right of claim in favour of Sinequanon Invest (but the lender was not changed in court). The latter, in turn, immediately informed both the debtor that he was the new lender, and the ECHR that he, and not Promimpro Exports, was now the applicant in the present proceedings. Promimpro Exports claimed that it retained the right to enforce the ruling (but in favour of Sinequanon Invest).
In those circumstances, when the original lender did not seek enforcement in his favour and the new lender emphasized to the Court that he was entering into the proceedings “on his own behalf” as agreed by the original lender, the ECHR stated that the original lender's application should not be upheld.
Under such circumstances, “Zolotoi Mandaryn Oil” LLC remained the lender under the unenforced ruling.
Thus, according to the requirements of the national law and the relevant interpretation of the ECHR, “Zolotoi Mandaryn Oil” LLC remained a “victim” of non-enforcement of the ruling in its favour within the meaning of Article 34 of the Convention.
Answer to issue 2:
According to the Convention, the State is responsible for enforcing the final ruling. The applicant shall not lose the right to appeal to the ECHR against the State due to the non-enforcement of the final ruling of the national court in the case of conclusion of an agreement on assignment of claims under such a ruling with another person, unless the lender has been changed in court. As no such change took place in the case of “Zolotoi Mandaryn Oil” LLC, the State had a Convention obligation before “Zolotoi Mandaryn Oil” LLC to enforce this ruling, and the company remained a “victim” within the meaning of Article 34 of the Convention.
Regarding to issue 3:
In accordance with the case law of the ECHR, are the grounds of the application of “Zolotoi Mandaryn Oil” LLC with ECHR available in the case files sufficient? Can it be considered that “Zolotoi Mandaryn Oil” LLC “artificially” created grounds for applying with the European Court of Human Rights?
In 2013, Limited Liability Company “Zolotoi Mandarin Oil” (hereinafter referred to as “Zolotoi Mandaryn Oil” LLC) filed an application with the ECHR, which was later assigned No. 63403/13. The application concerned a violation of Article 6(1) of the Convention due to non-enforcement of the Ruling of Kyiv City Commercial Court dated April 21, 2009 by Joint-Stock Energy Supply Company “Kyivenerho” (hereinafter referred to as JSESC “Kyivenerho”) on return of 24,627.097 tons of fuel oil to Limited Liability Company “Zolotoi Mandarin Oil”.
The application to the ECHR was preceded by the following events.
“Zolotoi Mandaryn Oil” LLC filed a claim with Kyiv City Commercial Court against JSESC “Kyivenerho” for obliging it to perform the obligation in kind, in particular, to return in favour of “Zolotoi Mandaryn Oil” LLC fuel oil M-100 in the quantity of 40,990.759 tons and fuel oil M-100 in the quantity of 33,848.313 tons, which was previously transferred to it for storage, and for recovery of court expenses from JSESC “Kyivenerho”.
By Ruling dated April 14, 2009, the proceeding in the case was opened and the hearing thereof was appointed for April 21, 2009.
On April 17, 2009 Limited Liability Company “Trading House “Resources” (hereinafter referred to as LLC “TH “Resources”) and Subsidiary Company “Stalinvest” (hereinafter - SC “Stalinvest”) of Limited Liability Company “Donmetalzbut” (hereinafter - LLC “Donmetalzbut”), as third parties with independent claims, filed claims with respondent, which were allowed by the court ruling.
On April 21, 2009, Kyiv City Commercial Court by its ruling partially granted the claims of “Zolotoi Mandaryn Oil” LLC and obliged JSESC “Kyivenerho” to return in its favour fuel oil M-100 totalling 24,627.097 tons with the collateral value of UAH 54,179,613.40 (fifty-four million one hundred seventy-nine thousand six hundred thirteen Hryvnias 40 kopiikas), which was stored by “Co-generation plant No. 5 of Kyivenerho” of JSESC “Kyivenerho”. The Ruling entered into legal force. Claims of “TH “Resources” LLC were granted in full, with Joint-Stock Energy Supply Company “Kyivenerho” obliged to return in kind in favour of “TH “Resources” LLC fuel oil M-100 totalling 25,381.67 tons with the collateral value of UAH 55,839,674.00 (fifty-five million eight hundred thirty-nine thousand six hundred seventy-four Hryvnias 00 kopiikas), claims of SC “Stalinvest” were granted in full, with Joint-Stock Energy Supply Company “Kyivenerho” obliged to return in kind in favour of SC “Stalinvest” fuel oil M-100 in the quantity of 24,830.305 tons with the collateral value of UAH 54,626,671.00 (fifty-four million six hundred twenty-six thousand six hundred seventy-one Hryvnias 00 kopiikas).
At the time of rendering of the ruling, JSESC “Kyivenerho” was the “state enterprise” within the meaning of the Convention, since the state of Ukraine owned 50 percent of its shares.
On May 06, 2009, in pursuance of the ruling that entered into legal force, Kyiv City Commercial Court issued an order to “Zolotoi Mandaryn Oil” LLC, which was enforced and the enforcement proceeding commenced.
On May 08, 2009 “Zolotoi Mandaryn Oil” LLC and third parties filed an application through the office of the court clerk for changing the method of enforcement of the ruling, substantiating their claims by non-enforceability of the ruling, for which reason they asked the court to change the method and procedure of enforcing the ruling and recover from JSESC “Kyivenerho” in favour of “Zolotoi Mandaryn Oil” LLC the cost of the non-returned property in the amount of UAH 54,179,613.40 (fifty-four million one hundred seventy-nine thousand six hundred thirteen Hryvnias 40 kopiikas), in favour of third parties - collateral value of their own fuel oil, accordingly.
By Ruling dated May 12, 2009 the applications of “Zolotoi Mandaryn Oil” LLC, “TH “Resources” LLC, SC “Stalinvest” for changing the method and procedure of enforcement were granted. JSESC “Kyivenerho” appealed against this ruling with the Supreme Commercial Court of Ukraine, but the appeal was returned to the applicant.
By Order No. 568 dated 10.11.2005 the Ministry of Fuel and Energy of Ukraine approved the list of enterprises of the fuel and energy complex, who have decided to participate in the debt repayment procedure and correspond to paragraph 1.1 of Article 1 of Law No. 2711. This list also included JSESC “Kyivenerho”. According to para. 15 of part 1 of Art. 34 of the Law of Ukraine “On Enforcement Proceeding”, registration with this Register shall always entail termination of the enforcement proceeding.
For this reason, on August 05, 2009, the Unit for Enforcement of Rulings of the Department of the State Enforcement Service of the Ministry of Justice of Ukraine (hereinafter the Unit for Enforcement of Rulings) stopped the proceedings opened upon the application of LLC “TH “Resources” with respect to the same Ruling (dated April 21, 2009).
On October 10, 2009, JSESC “Kyivenerho” filed an application with Kyiv City Commercial Court for an execution by instalments (suspension of execution) of the ruling, but on 27 November 2009, this application was dismissed).
Thereafter JSESC “Kyivenerho” was reorganized into Public Joint Stock Company “Kyivenerho” (hereinafter PJSC “Kyivenerho”), which became the legal successor of JSESC “Kyivenerho”.
On January 30, 2012 PJSC “Kyivenerho” filed an application with Kyiv City Commercial Court for a suspension of execution of the Ruling of Kyiv City Commercial Court dated May 12, 2009 in Case No. 41/207 in terms of repayment of the debt to “Zolotoi Mandaryn Oil” LLC, and for an execution of this Ruling by instalments in terms of repayment of the debt to “Zolotoi Mandaryn Oil” LLC for a period of thirty (30) years due to financial hardship.
On February 13, 2012 Kyiv City Commercial Court partially granted the application of PJSC “Kyivenerho” by allowing the execution of the Ruling dated May 12, 2009 in Case No. 41/207 by instalments for three years. PJSC “Kyivenerho” appealed against the ruling with Kyiv Commercial Court of Appeal, but on March 28, 2012, the appeal was dismissed by the court of appeal.
Therefore, at the time of filing of the application of “Zolotoi Mandaryn Oil” LLC with ECHR in 2013 there existed the ruling rendered by Kyiv City Commercial Court on April 21, 2009, which had become final. That is why on May 06, 2009 Kyiv City Commercial Court issued the order, on the basis of which the enforcement proceedings commenced. However, from the date when the Ruling was rendered and till the time of filing of the application of “Zolotoi Mandaryn Oil” LLC with ECHR, i.e. for almost four years, the Ruling was not enforced.
In accordance with the case law of the ECHR, a delay in the execution of a ruling may be justified in particular circumstances, but this should not violate the right of a party to enforce the ruling (Burdov v. Russia, No. 59498/00, §§ 35-37). Within this meaning, enforcement of a ruling must be full and comprehensive, and not partial (Matheus v. France, No. 62740/00, § 58, 31.03.2005; Sabin Popescu v. France, No. 48102/99, §§ 68-76, 02.03.2004), and the execution cannot be prevented, invalidated or unduly delayed (Immobiliare Saffi v. Italy [GC], No. 22774/93, § 74, ECHR 1999-V).
The notice of suspicion to Advocate Volodymyrska and others, as well as other supporting materials indicate the existence of artificial grounds for the application of “Zolotoi Mandaryn Oil” LLC with ECHR for non-enforcement of the Ruling of Kyiv City Commercial Court dated April 21, 2009 in Case No. 41/207 in favour of “Zolotoi Mandaryn Oil” LLC, which can be reduced to the following:
1. The State is not liable for debts of private enterprises.
This statement is false, the detailed arguments are provided above in answer to issue 1. In particular, the ECHR’s clear position on cases against Ukraine is that the State is only liable for debts of enterprises with the share-owned state in their authorised fund of 25 or more percent. At the time of rendering the Ruling in favour of “Zolotoi Mandaryn Oil” LLC, the share of the State in the authorised fund of JSESC “Kyivenerho” was more than 50 percent.
2. ”Zolotoi Mandaryn Oil” LLC did not use national remedies, because it did not properly initiate enforcement proceedings with respect to the Ruling (missed the deadlines for enforcement, and applied for a duplicate enforcement order after the deadline).
This is also a false statement, the arguments for which are contained above in the answer to issue 1. For the purposes of the Convention, in these circumstances, it did not matter at all whether “Zolotoi Mandaryn Oil” LLC had instituted enforcement proceedings or not, as the European Court considers that such an application with the SES does not make sense if the debtor was an entity with a state-owned share more than 25 percent. In addition (although unimportant in the circumstances of the case, it indicates a misperception of the facts by the investigating authority), it is clear from the case files that “Zolotoi Mandaryn Oil” LLC actually applied to the court for an order, received it and provided it to the Ministry of Justice (SES). Further, according to the Ministry of Justice, when the letter was returned to the applicant by post, it was lost and the company was therefore forced to apply for a duplicate order.
3. ”Zolotoi Mandaryn Oil” LLC did not have the right to apply to ECHR, since it assigned in favour of LLC “Issakhar-Zevulun Import-Export” its right of claim for recovery from PJSC “Kyivenerho” under the relevant Ruling.
This statement is also erroneous, the detailed arguments are provided in the answer to issue 2 - in the absence of a court ruling to change the lender it was “Zolotoi Mandaryn Oil” LLC, who had the right to demand enforcement of the Ruling in its favour within the meaning of the Convention.
4. ”Zolotoi Mandaryn Oil” LLC misled the ECHR, since in its application with ECHR in Section IV, substantiating the non-enforceability of the Ruling of the Commercial Court dated May 12, 2009 in Case No. 41/207 in favour of “Zolotoi Mandaryn Oil” LLC at the national level, it noted that the national courts rendered the rulings upholding the ruling of the State Enforcement Officer of the Unit of the SES of the MJU regarding the stoppage of enforcement proceeding No. 13930081 pursuant to Article 2 of the Law of Ukraine “On Measures to Ensure the Sustainable Functioning of Enterprises of the Fuel and Energy Complex”, which concerned “TH “Resources” LLC, and not “Zolotoi Mandaryn Oil” LLC.
This statement reflects a misunderstanding of the ECHR's practice and methods of substantiating an application and it is directly relevant to the previous statement and is inconsistent with the Convention. According to the ECHR, it was not necessary to apply to SES for enforcement of the Ruling against JSESC “Kyivenerho”, the fact of stoppage of the enforcement proceedings against this debtor on the basis of Article 2 of the Law of Ukraine “On Measures to Ensure the Sustainable Functioning of Enterprises of the Fuel and Energy Complex” only further emphasized the lack of effective means for the applicant to combat the non-enforcement of the Ruling in its favour.
Moreover, the ECHR itself, in the presence of an application concerning non-enforcement of a ruling against a debtor, whose debts according to its other ruling were the responsibility of the State, believes that the fact of the State’s responsibility is proven and does not studies this issue again in other rulings (see Sharenok v. Ukraine (No. 35087/02, 22.02.2005, § 20, Derkach and Palek v. Ukraine, No. 34297/02, No. 39574/02, 21.12.2004 § 32).
The conclusion on the artificial nature of the grounds for the application of “Zolotoi Mandaryn Oil” LLC with ECHR is based on the erroneous understanding of the ECHR’s case of law, the existence of which is confirmed, inter alia, by letter of Roderick Liddell, the Registrar of the ECHR No. 6546690 dated October 25, 2019 to the Commissioner of the Government of Ukraine for the European Court of Human Rights.
Moreover, the manifestly inadmissible applications with the ECHR are dismissed immediately under Article 35(3) of the Convention by a single judge and do not reach the stage of communication. “Zolotoi Mandaryn Oil” LLC, on the contrary, was not only communicated to the Government of Ukraine on January 29, 2015 along with other 4999 applications, but was proposed, along with another four selected applications, for referring to the Grand Chamber, indicating that the Registry of the ECHR found it sufficiently substantiated and indicative.
Answer to issue 3:
According to the pilot ruling in the case Yurii Mykolaiovych Ivanov v. Ukraine, sufficient grounds for an application established by the ECHR’s case law are:
a) existence of a final ruling;
b) non-enforcement of such a ruling;
c) prolonged non-enforcement at the time of the application more than a “reasonable time” (at least 14 months).
Artificial grounds include grounds that are only based on false facts and information supported by false evidence. There is no data in the case files that the information provided to the Court in the application of “Zolotoi Mandaryn Oil” LLC did not correspond to the reality.
The question whether the situation described and proved by the applicant provided grounds for establishing a violation of the Convention could not be considered in terms of “artificial grounds”. Even if the Court finds that the application does not give grounds for acknowledging the violation or is inadmissible because it does not meet certain criteria, it can only be a question of the unfoundedness of the application and not of the existence of artificial grounds. Otherwise, it would have to be acknowledged that 98% of applications to the ECHR were filed on “artificial” grounds, not to mention the millions of unsuccessful claims before national courts.
In this case, the grounds for applying to the ECHR were not only not "artificial", but on the contrary, at the time of filing of the application of “Zolotoi Mandaryn Oil” LLC with the ECHR there were all necessary and sufficient grounds for such an application, as determined by the ECHR case law, including in the pilot ruling in the case Yurii Mykolaiovych Ivanov v. Ukraine:
(a) existence of a final ruling of Kyiv City Commercial Court against the state (within the meaning of the Convention) enterprise JSESC “Kyivenerho”;
(b) non-enforcement of this ruling;
(c) prolonged non-enforcement at the time of the application being more than a “reasonable time” (namely more than four years).
Defining of these grounds as “artificial” is legally unfounded.
The references to the artificiality of the grounds for the application of “Zolotoi Mandaryn Oil” LLC with the ECHR are based on a misinterpretation of the requirements of the Convention and the case law of the European Court of Human Rights on the issue of non-enforcement of rulings. The case files suggest that the company had every reason to apply with this international judicial institution and the State had a Convention obligation before “Zolotoi Mandaryn Oil” LLC to enforce the ruling.
Regarding to issue 4:
Did the Government Commissioner for the ECHR have the right to conclude an amicable settlement declaration with respect to the dispute on July 22, 2015 on the application of “Zolotoi Mandaryn Oil” LLC against Ukraine, taking into account the rules of the national and international law in force at that time, and whether violations of the procedure of amicable settlement could be alleged?
Pursuant to Article 39(1) of the Convention, at any stage of the proceedings, the ECHR may place itself at the disposal of the parties concerned with a view to securing an amicable settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.
Rule 62(1) of the ECHR Rules provides that once an application has been declared admissible, the Registrar, acting on the instructions of the Chamber or its President, shall enter into contact with the parties with a view to securing an amicable settlement of the matter in accordance with Article 39(1) of the Convention.
According to Rule 62(4) of the Rules, an amicable settlement procedure may also take place where applications are concurrently heard concerning their admissibility and on the merits pursuant to Article 29(1) of the Convention, in accordance with Rule 54A of the Rules.
Pursuant to § 1, § 2 of the Rule 54 of the Court Rules, its Chamber may at once declare the application inadmissible or strike it out of the Court’s list of cases, or, alternatively, the Chamber or the President of the Section may decide to give notice of the application or part of the application to the respondent Contracting Party and invite that Party to submit written observations thereon and, upon receipt thereof, invite the applicant to submit observations in reply (Rule 54(2)(b)).
Therefore, the amicable settlement procedure is left to the discretion of the parties to the case and may take place at any stage of the proceedings, whether the application is declared admissible or not, if the Court notifies the respondent Contracting Party of the application (or part thereof) with a request to submit written observations on the application under Rule 54(2)(b) of the Rules of Court, pending a ruling by the Chamber of the Court on the simultaneous hearing of the admissibility and on the merits under Rule 54A of the ECHR’s Rules. Where the Chamber of the Court decides to examine the admissibility and merits of the application at the same time, the parties should be invited to include in their observations any arguments concerning just satisfaction and amicable settlement of the dispute.
In any event, the ECHR must, in accordance with Article 38(1) of the Convention, ensure that an amicable settlement of the dispute is ensured on the basis of respect for human rights as defined in the Convention and its protocols.
In the interim resolution of the Committee of Ministers of the Council of Europe CM/ResDH(2012)234 on the implementation of the Ruling Yurii Mykolaiovych Ivanov v. Ukraine and others concerning non-enforcement or prolonged enforcement of rulings of national courts and lack of effective remedies in this regard (adopted on 06.12.2012 at the 1157th meeting of the Deputy Ministers), the Ukrainian authorities, in particular, were encouraged to increase the use of unilateral declarations and the conclusion of an amicable settlement of the dispute in order to resolve cases pending before the ECHR.
Paragraph 2(1) of the Action Plan for the Implementation of Ukraine's Duties and Obligations Arising out of its Membership in the Council of Europe, approved by the Presidential Decree dated January 12, 2011, stipulates that the Ministry of Justice of Ukraine is tasked with ensuring an amicable settlement with applicants before the European Court of disputes pending before the European Court, in repeated (similar) cases.
On January 29, 2015, the Registrar of the Fifth Section of the ECHR received a letter from the Government Commissioner for the European Court of Human Rights informing him that after a preliminary examination of the admissibility of the applications on 20 January 2015, the Chamber to which the cases were assigned of "Ivanov type", pursuant to Rule 54(2)(b) of the Rules of Court, decided to inform the Government of Ukraine (cases Samoilenko and 4999 other applications against Ukraine) of these applications, together with a statement of facts concerning each of the applicants, and a message that the DVD, together with a link to copies of the non-enforced rulings in each case, will be sent by regular mail.
According to the First Deputy Minister of Justice N. Bernatska, among the said 5,000 cases assigned to the ECHR Chamber under number 1712, the list included the case of the applicant - “Zolotoi Mandaryn Oil” LLC against Ukraine (application no. 63403/13), indicating the applicant's complaints against non-enforcement of the Ruling of Kyiv City Commercial Court dated April 21, 2009 obliging JSESC “Kyivenerho” to return from storage in favour of the applicant fuel oil M-100 totalling 24,627,097 tons with a collateral value of UAH 54,179,613.40.
On April 14, 2015, the Government Commissioner requested the ECHR to provide information to the Court on at least 250 cases per month and on April 17, 2015, the ECHR granted the request of the Government of Ukraine and allowed the latter to provide to the Court on a monthly basis objections on 250 cases.
On July 15, 2015, the Registrar of the Fifth Section of the ECHR received a letter from the Government Commissioner by electronic means informing him that on May 07, 2015 the Chamber had decided to inform the parties pursuant to Rule 72(4) of the Rules of Court that according to Article 30 of the Convention it decided to relinquish its jurisdiction in favour of the Grand Chamber in five cases, including the applicant's case, and requested it to indicate within one month from the date of this letter whether the Government of Ukraine had any objections to the transfer of the case for consideration of the Grand Chamber, and, if any, provide their justification within the same period.
On July 17, 2015 the applicant's representative, who had also been informed of the Chamber's ruling to refer the case of “Zolotoi Mandaryn Oil” LLC to the Grand Chamber, sent by post to the Government Commissioner a letter with a proposal for an amicable settlement of the case, with attachments - copies of the Ruling of Kyiv City Commercial Court dated April 21, 2009 and its Ruling dated May 12, 2009, which was received by the addressee on July 21, 2015. The letter contained the applicant's proposal that, subject to the enforcement of the Ruling of Kyiv City Commercial Court dated May 12, 2009, which changed the method and procedure for enforcing the Ruling of Kyiv City Commercial Court dated 21 April 2009, within ninety days of signing an amicable settlement, the applicant company will refuse just satisfaction.
On July 20, 2015 the applicant's representative sent a letter warning that in the event of a refusal from the amicable settlement, the applicant company would insist on full compensation for the material and moral damage, which the applicant estimated would be almost three times the amount, which was specified in the Ruling of Kyiv City Commercial Court to change the method of execution of the court ruling - respectively, UAH 158,844,775.65 vs. UAH 54,179,613.40.
On July 22, 2015 the Government Commissioner B. Babin sent an e-mail to the ECHR informing it of the receipt of the letter from the applicant with a proposal for an amicable settlement of the case subject to full enforcement of the Ruling of Kyiv City Commercial Court dated May 12, 2009 changing the method and procedure for execution of the Ruling of Kyiv City Commercial Court dated April 21, 2009. In that letter, Mr. Babin, taking into account the applicant's initiative for an amicable settlement and the possibility of thus avoiding additional substantial payments from the State budget, asked the Court to refer to the parties the issue of reaching an amicable settlement in the case. He proceeded on the basis that the Government should rely on the position of the ECHR that a request for an amicable settlement in cases involving questions of the Court's settled case law should not include controversial issues. To this letter B. Babin attached a declaration of obligations signed on behalf of the Government of Ukraine to pay to the applicant, within three months from the date of the ruling under Article 37 of the Convention, the funds not paid under the Ruling of Kyiv City Commercial Court dated May 12, 2009 and that the enforcement of the said Ruling of Kyiv City Commercial Court will mean the final adjudication of the case.
On July 23, 2015, the ECHR informed the Government Commissioner by electronic means that he had received his letter and declaration proposing an amicable settlement of the dispute, and that copies thereof were sent to the applicant's representative, who had been invited to provide by August 07, 2015 any comments he would like to provide in response. On the same day, B. Babin sent the ECHR copies of the letters of the applicant's representative dated 17 and 20 July 2015 proposing an amicable settlement of the dispute.
On October 20, 2015, the ECHR, sitting as a panel of three judges, namely: Angelika Nussberger (Chair), Bostjan M. Zupancic, Vincent A. De Gaetano (Judges), and Milan Blaszko (Deputy Registrar of the Section), decided to remove the application from the registry of cases under Article 37(1)(b) of the Convention, as an amicable settlement had been reached between the applicant and the Government of Ukraine, stating that on 10 August 2015 the ECHR had received a letter from the applicant's representative with the applicant’s consent to the terms of an amicable settlement declaration.
According to the Regulation on the Commissioner for the European Court of Human Rights, approved by the Cabinet of Ministers of Ukraine dated 31.05.2006 No. 784, the Commissioner is an official of the Ministry of Justice, who is authorized to ensure Ukraine's representation in the European Court of Human Rights during the proceedings in cases of violation of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Commissioner for the European Court of Human Rights negotiates with the applicant, if necessary, agrees at the interdepartmental level on the terms of amicable settlement in cases against Ukraine, and concludes an amicable settlement agreement in the manner prescribed by law.
In addition, it was prudent in the interests of the State to reach an amicable settlement in this situation also because the Ruling of the Grand Chamber could provoke mass appeals to the ECHR by applicants in similar cases. The ruling to exclude a case from the registry, which does not provide detailed circumstances of the case and analysis of the legal situation, due to low information is much less likely to become a catalyst for mass applications to the ECHR. Therefore, in view of the Government's task of taking measures to reduce the applications, such a ruling was justified.
Answer to issue 4:
Given the circumstances of the case, based on the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, the ECHR Rules and the Regulation on the Commissioner for the European Court of Human Rights, the Commissioner was entitled to propose an amicable settlement agreement in the case of “Zolotoi Mandaryn Oil” LLC against Ukraine” and sign it. The case files do not suggest about any violation of the applicable laws and regulations or requirements of the Convention or the case law of the ECHR during the conclusion of this amicable settlement.
Regarding to issue 5:
Is the lawyer's audio control during communication with the client, the lawyer's identification with the client, a violation of the right to defence, which is an integral part of the right to a fair trial under Article 6 of the ECHR? Are such violations seen from the materials provided for analysis?
The case files show that detectives intercepted telephone conversations between lawyers and clients, observed during legal aid, withdrew information from communication channels, forced to testify about clients, and committed other significant violations of the secrecy of advocacy and interference in the practising of law.
In the Ruling in the case "Khodorkovskiy and Lebedev v. Russia” (No. 11082/06 and 13772/05, 25.07.2013) the Court recalled that observance of the confidentiality of a lawyer's communication with a client is very important in the context of Article 6 § 1 and § 3(c). The right of the accused to communicate with his defence counsel without being heard by a third party is part of the basic requirements of a fair trial. If a lawyer could not communicate with his client and receive confidential instructions from him without such supervision, “his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective” (see S. v. Switzerland, 28.11. .1991, § 48, series A No. 220). Any interference with protected materials and, a fortiori, the use of such materials against defendants in the proceedings must be exclusive, justified by urgent need and always subject to rigorous scrutiny by this Court (see Khodorkovskiy and Lebedev v. Russia, §§ 632-634).
With regard to searches of law firms and the interception of written communications between a lawyer and his client, such situations are more frequently examined by the Court under Article 8 of the Convention. However, interference with a lawyer's professional secrecy not only affects his rights under Article 8; it may also impede effective legal assistance to the client and should therefore be considered by the Court in accordance with Article 6 §§ 1 and 3(c) of the Convention when the client's interests are affected. In the case of “Campbell v. the UK” (25.03.1992, §§ 46-48, Series A no. 233) The Court found that “It is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. It is for this reason that the lawyer-client relationship is, in principle, privileged."
In the case of Khodorkovskiy and Lebedev v. Russia concerning the complaint that one of the applicants' lawyers had been summoned to court as a witness, the Court expressed considerable concern about this fact. Meanwhile, by searching the lawyer's office and seizing professional documents, the authorities deliberately interfered with the confidentiality of the communication, which was neither justified by good cause nor accompanied by appropriate procedural guarantees. In these circumstances, the disputed search and seizure were arbitrary. The Court therefore found a violation of Article 6(3)(c) of the Convention.
In addition to the apparent violation of the rights to a defence, the prosecution's use of audio recordings of wiretapping conversations with a client as evidence in criminal proceedings is considered, under the Convention, as the use of evidence obtained illegally and in violation of the Convention.
Under Article 8 of the Convention, a lawyer's conversations with a client fall under the notion of "correspondence". Thus, correspondence between a lawyer and his or her client, whatever its subject matter is, is further protected by Article 8 of the Convention, and such protection is enhanced with regard to confidentiality (Michaud v. France, No. 12323/11, §§ 117-119, 06.12.2012). Such additional protection is justified by the fact that lawyers in a democratic society have a fundamental role to play in defending the parties to a trial. The content of the intercepted documents does not matter (Laurent v. France, No. 28798/13, § 47, 24.05.2018). Professional secrecy is "the basis of a relationship of trust between a lawyer and a client" and any risk of breach of it may have consequences for the proper administration of justice, i.e. affect the rights guaranteed by Article 6 of the Convention (Niemietz v. Germany, No. 13710/88, § 37, 16.12.1992; Wieser and Bicos Beteiligungen GmbH v. Austria, No. 74336/01, § 65, 16.10.2007). Indirectly but necessarily dependent thereupon is the right of everyone to a fair trial, including the right of accused persons not to incriminate themselves («Michaud v. France», No., § 118, 06.12.2012).
Interference with a lawyer's "correspondence" would constitute a violation of Article 8 if it was not duly justified. It must be in “accordance with the law” («Robathin v. Austria», No. 30457/06, §§ 40-41, 03.07.2012), pursue one of the legitimate aims set out in Article 8(2) («Tamosius UK» (dec.), No. 62002/00, 19.09.2002; «Michaud v. France», No., §§ 99, 06.12.2012) and be “necessary in a democratic society” in order to achieve that aim. The notion of necessity within the meaning of Article 8 implies that there is an urgent public need for it and, in particular, that the interference is proportionate to the legitimate aim pursued («Michaud v. France», No. , § 120, 06.12.2012). If a lawyer or law firm has been affected by the interference, there must be special guarantees that their rights will be restored.
The Court emphasized that, as wiretapping constituted a serious interference with the right to respect for a lawyer's correspondence, it should be based on a "law" which was particularly precise, in particular given that available technology was becoming increasingly difficult (Kopp v. Switzerland, No. 23224/94, §§ 73-75, 25.03.1998). In the cited case, the Court found a violation of Article 8, first, because the law did not clearly indicate how a distinction should be made between matters relating to the work of a lawyer and activities other than that of a legal adviser, and second, the interception of telephones was carried out by public authorities without any supervision by an independent court (see also the protection provided by law, Petri Sallinen and Others v. Finland, § 50882/99, § 92, 27.09.2005).
Ukrainian legislation, in particular Article 23 of the Law of Ukraine “On the Bar and Practice of Law”, clearly states that it is prohibited to inspect, disclose, demand or seize documents related to the law practising; it is prohibited to involve a lawyer in confidential cooperation during search operations or investigative actions, if such cooperation will be related or may lead to the disclosure of attorney-client privileged information; interference in the lawyer's private communication with the client is prohibited. These guarantees have no exception.
Article 397 of the Criminal Code establishes criminal liability for interfering with the activities of a lawyer or representative of a person, i.e. creation of any form of obstacles for the lawful activities of a lawyer or representative of a person to provide legal assistance or violation of statutory guarantees of their activities and professional secrecy.
The materials submitted for analysis show interference with the guarantees of law practising, which were not based on the law. This can be regarded as a violation of Article 8 of the Convention.
Answer to issue 5:
The interception of client-lawyer conversations and the involvement of lawyers in investigative actions, which led to the disclosure of the lawyer's communication with the client, undoubtedly constitute a violation of the right to defence guaranteed by Article 6(3)(c) of the Convention. Such interception also constitutes a violation of Article 8 of the Convention, as it is not based on law, which may also lead to a violation of the right to a fair trial guaranteed by Article 6(1) of the Convention.
Andrzej Rzepliński ____________
Andrii Kosylo _________________
Roman Martynovskyi _________
Gennadii Tokarev ______________