In the case of Budchenko v. Ukraine,
The European Court of Human
Rights (Fifth Section), sitting as a Chamber composed of:
Mark Villiger,
President,
Angelika Nußberger,
Boštjan M. Zupančič,
Ann Power-Forde,
Ganna Yudkivska,
Helena Jäderblom,
Aleš Pejchal, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 1 April 2014,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
38677/06) against Ukraine lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Ukrainian national, Mr Vladimir Vasilyevich Budchenko (“the
applicant”), on 11 September 2006.
The applicant, who had been granted legal aid,
was represented by Mr M. Tarakhkalo, a lawyer practising in Kharkiv,
Ukraine. The Ukrainian Government (“the Government”) were represented by their
Agent, most recently Mr N. Kulchytskyy, of the
Ministry of Justice of Ukraine.
The applicant alleged, in particular, that the
courts had failed to grant him an exemption from electricity and gas payments
as required by law.
On 25 August 2011 the application was
communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1932 and lives in the
town of Gorlivka, Ukraine.
6. From 1953 to 1966 the applicant worked in a mine.
7. In 2001-2002 the applicant asked the Lenin Mine (his former
employer) and the State mining enterprise Artemvugillya (the Lenin Mine’s legal
successor) to explain to him how section 43 of the Mining Act (“Гірничий
закон”) (see “Relevant domestic law” below)
was to be implemented, and to pay his electricity and gas costs in accordance
with this provision. In reply he was informed that persons who were entitled to
receive coal free of charge but were living in houses with central heating had the
right to exemption from electricity and gas payments, such costs being borne by
the mining companies. However, no appropriate legal mechanisms implementing
“the methods of calculation and the sources of financing” had been adopted by
the Cabinet of Ministers.
8. In 2003 the applicant complained to a prosecutor’s office
that his requests to have his electricity and gas payments covered had been
ignored. In a letter dated 13 February 2003 from the Tsentralno-Miskyy District
Prosecutor’s Office, the applicant was informed that he was entitled to
exemption from electricity and gas payments. Since the Lenin Mine had refused
to accept his claims owing to the lack of funds and no compensation mechanism
was provided for by law, the applicant was advised to lodge his claims with the
court.
9. In April 2003 the applicant instituted proceedings in the
Tsentralno-Miskyy District Court against the State mining enterprise
Artemvugillya and local communal heating and gas providers. He claimed that
under section 43 of the Mining Act the mine should cover his electricity and
gas costs by means of contributions paid into the local budget. He also claimed
reimbursement of amounts already paid and asked that the State mining
enterprise Artemvugillya settle his heating and gas debts. The applicant also
claimed compensation for non-pecuniary damage. He updated his claims in 2004.
10. On 7 April 2004 the Tsentralno-Miskyy District Court found
against the applicant. The court held that the applicant had worked in a mine
for more than ten years and thus was entitled to receive free coal for everyday
domestic needs. As he lived in a house with central heating, section 43-8 of
the Mining Act should apply in his case. However, no mechanism was in place for
the implementation of that provision. In particular, there was no procedure for
transferring funds from mining enterprises to the local budget. The court also held
that the applicant’s request for reimbursement of the amounts already paid had no
basis in law.
11. On 29 July 2004 the Donetsk Regional Court of Appeal
upheld that decision.
12. On 4 April 2006 the Supreme Court rejected an appeal on
points of law by the applicant.
13. In a decision of 1 December 2006 the Tsentralno-Miskyy
District Court ordered the applicant to settle his heating debts, noting that section
43 of the Mining Act did not exempt him from paying for heating services.
That decision was upheld on 26 June 2007 by the Donetsk Regional Court of
Appeal. On 23 October 2007 the Supreme Court of Ukraine rejected a request by
the applicant for leave to appeal on points of law.
14. In a letter dated 4 November 2008 the Gorlivka Town
Council informed the applicant that at that date no mechanism had been set up to
handle the compensatory payments requested by him.
15. In letters dated 14 May and 2 July 2009 the Ministry of the
Coal Industry of Ukraine informed the applicant that the mechanism for
implementing section 43-8 of the Mining Act would be set up pursuant to a corresponding
decision by the Cabinet of Ministers of Ukraine.
16. In a letter dated 17 August 2009 the Ministry of Labour
and Social Policy of Ukraine informed the applicant that on 12 August 2009 the
Cabinet of Ministers had adopted the corresponding decision, which was subject
to approval by the Ministry of Finance.
17. In a letter dated 4 August 2010 the Ministry of Labour and
Social Policy informed the applicant that he had no right to any compensation
payments as the mine where he had been working in was in liquidation.
18. In October 2010 the applicant instituted court proceedings
against the Tsentralno-Miskyy Department of Labour and Social Policy of the
Gorlivka Town Council requesting recognition of his rights under sections 43-7
and 43-8 of the Mining Act and a declaration that the Department’s inactivity was
unlawful.
19. On 1 November 2010 the Donetskyy Regional Administrative
Court refused to examine the applicant’s claim and informed him that it should
be lodged before a court of general jurisdiction. That decision was upheld on
7 December 2010 and on 28 September 2011 by the Donetsk Administrative
Court of Appeal and by the Higher Administrative Court respectively.
II. RELEVANT DOMESTIC LAW
Mining Act, 1999
The Mining Act entered into force on 1 December
1999. Parts 7 and 8 of section 43 of the Act that were in force before
2 September 2008 read as follows:
Section 43. Rights and social guarantees of employees of
mining enterprises
“Coal-mining enterprises shall provide free coal for everyday domestic
needs in the amount determined by collective agreement for the following
categories of persons:
pensioners who have worked in coal-mining enterprises for 10
years (men) and 7.5 years (women)...
Persons who have the right to receive free coal but live in
houses with central heating shall be exempted from paying for electricity and
gas, those costs being borne by the coal-mining (processing) enterprises, which
shall transfer the funds to cover the costs to the local budget.”
Pursuant to the “Transitional provisions” Chapter
of the Mining Act, the Cabinet of Ministers of Ukraine had to adopt the
relevant legal mechanisms with a view to implementing the Act’s provisions
within four months of the date of the Act’s entry into force.
In 2008 section 43-8 was amended as following:
“Persons who have a right to receive free coal but live in
houses with central heating shall receive compensation for electricity, gas and
heating payments by way of contributions paid from the State budget to the local
budget.”
The procedure for granting the above
compensation was determined by a decision of the Cabinet of Ministers of
Ukraine (no. 887 of 12 August 2009).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No.
1 TO THE CONVENTION
The applicant complained that on 7 April 2004 the
Tsentralno-Miskyy District Court had rejected his claim unlawfully. In his application
he invoked Article 6 of the Convention.
The Court, which is master of the
characterisation to be given in law to the facts of the case, finds that the
above complaint falls to be examined under Article 1 of Protocol No. 1 to the
Convention, which reads as follows:
“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
The Government did not submit any observations regarding
the admissibility of the above complaint.
The Court notes, in view of the “significant
disadvantage” admissibility criterion, that the exact amount of the applicant’s
electricity and gas payments he requested reimbursement and exemption of, has
been never specified in the national proceedings. Before this Court the
applicant submitted only some of his bills for the period between December 1999
and April 2004 equalling 65 euros.
. The
Court reiterates that the above criterion hinges on the idea that a violation
of a right, however real from a purely legal point of view, should attain a
minimum level of severity to warrant consideration by an international court
(see Korolev v. Russia (dec.), no. 25551/05, 1 July 2010). The
assessment of this minimum level is, in the nature of things, relative and
depends on all the circumstances of the case (see Korolev, cited above).
The severity of a violation should be assessed taking account of both the
applicant’s subjective perceptions and what is objectively at stake in a
particular case.
. In the
present case the Court considers that, since the applicant had presented only
part of his bills, it cannot speculate on the total amount of losses sustained
by the applicant as a result of the alleged violation.
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It
further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government submitted that there had been no
court decision by which the applicant’s claims had been satisfied and the
applicant therefore had no “legitimate expectations” that might be considered
to constitute a “possession” in the sense of Article 1 of Protocol No. 1.
In his observations in reply, the applicant submitted
that, according to the Court’s case-law, the concept of “possessions” was not
limited to existing possessions but could also cover assets, including claims,
in respect of which could be argued that the applicant had at least a “legitimate
expectation” of obtaining effective enjoyment of a property right (see Prince
Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR
2001-VIII).
Taking the above principles into account, the
applicant noted that the Tsentralno-Miskyy District Court had, in its decision,
acknowledged that, pursuant to the Mining Act, he should be exempted from
electricity and gas payments - with such costs being borne by the mine - and had
found against him merely because there had been no mechanism for covering those
costs. No such mechanism had been adopted for four years, even though the Act
itself provided that this should have happened within four months.
The applicant concluded that his proprietary
interest had been recognised under Ukrainian law and was thus subject to the
protection of Article 1 of Protocol No. 1.
The applicant noted that the State had positive
obligations under Article 1 of Protocol No. 1 (see Kotov v. Russia [GC], no. 54522/00, §§ 109-113, 3
April 2012). He further asserted that
the failure to adopt the necessary legal mechanisms with a view to implementing
section 43 of the Mining Act had constituted an interference with his right to
peaceful enjoyment of his possessions because his right to be exempt from
electricity and gas payments had been breached.
The applicant thus argued that there had been a
violation of Article 1 of Protocol No. 1.
2. The Court’s assessment
The Court reiterates that if a Contracting State
has in force legislation providing for the payment as of right of a welfare
benefit ‒whether
conditional or not on the prior payment of contributions ‒that legislation must be regarded
as generating a proprietary interest falling within the ambit of Article 1 of
Protocol No. 1 for persons satisfying its requirements (see Stec and Others
v. the United Kingdom (dec.), § 54, no. 65731/01 and 65900/01, ECHR 2005-X)).
In the present case the applicant was employed
in the mining industry for approximately thirteen years. The domestic law in
force at the material time exempted him from electricity and natural gas
payments.
The Court notes that the fact that the applicant
was entitled to such an exemption was confirmed by the national authorities
and, in particular, by the national courts (see paragraphs 8 and 10 above).
Therefore, the applicant had a recognised pecuniary interest under Article 1 of
Protocol No. 1.
The Court further notes that the applicant’s
claim for exemption from payments was, however, rejected since there was no
mechanism for implementing the relevant legal provision, and this constitutes
an interference with the applicant’s right under Article 1 of Protocol No. 1.
The Court reiterates that the first and most
important requirement of Article 1 of Protocol No. 1 is that any interference
by a public authority with the peaceful enjoyment of possessions must be lawful.
This principle presupposes that the applicable provisions of domestic law are
sufficiently accessible, precise and foreseeable in their application (see Beyeler v. Italy [GC], no. 33202/96, §§ 108-109,
ECHR 2000-I).
The Court also reiterates that it is primarily
for the national authorities to interpret and apply domestic law. However, the
Court is required to verify whether the way in which the domestic law is
interpreted and applied produces consequences that are consistent with the
principles of the Convention, as interpreted in the light of the Court’s
case-law (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 190-191, ECHR
2006-V).
The Court notes that the legal provision in
question contains an explicit right to exemption from electricity and gas
payments and does not make it contingent on the existence of a compensatory
mechanism. It could be argued, however, that - given the Court’s subsidiary
role - in the present case it was for the national courts to interpret the
domestic law, which they did by establishing that the applicant’s claim could
not be granted in the absence of a compensatory mechanism for his employer.
Assuming that such approach falls within the
margin enjoyed by the domestic courts in interpretation of the national law,
the Court accepts that in this case the requirement for the existence of a compensatory
mechanism could be regarded as pursuing a legitimate aim, such as protection of
the applicant’s employer’s property rights (see, mutatis mutandis, Kirovogradoblenergo, PAT v. Ukraine, no. 35088/07, 27 June 2013).
The Court notes, however, that in the present
case the applicant was employed by a State enterprise. The Government did not
provide any evidence to show to what extent the above entity had financial independence
from the State (see, mutatis mutandis, Mykhaylenky and Others v.
Ukraine, nos. 35091/02 and foll., § 44, ECHR 2004-XII).
The Court further notes that the relevant
provision exempting the applicant from certain payments was adopted in 1999 and
according to that legislation the relevant mechanism for reimbursement had to
be put in place within four months (see paragraph 21 above). However, it was
introduced only ten years later. No arguments were provided to explain this inactivity.
Given the State’s prolonged failure to act and
given that the applicant was employed by a State enterprise, the Court
considers that, by failing to secure the exemption from payment to which the
applicant was entitled by law within a reasonable delay, the State has put an
excessive and disproportionate burden on him, thus falling short of its
obligations under Article 1 of Protocol No. 1 (see, Klaus and Iouri Kiladzé
v. Georgia, no. 7975/06, § 76, 2
February 2010).
. The
Court considers that there has accordingly been a violation of Article 1 of
Protocol No. 1 to the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained of a violation of his
right to a fair trial under Article 6 of the Convention. He also complained
that the examination of the case by the Supreme Court of Ukraine had taken too
long.
Having considered the applicant’s submissions in
the light of all the material in its possession, the Court finds that, in so
far as the matters complained of are within its competence, they do not
disclose any appearance of a violation of the rights and freedoms set out in
the Convention.
It follows that this part of the application
must be declared inadmissible as manifestly ill-founded, pursuant to Article 35
§§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 20,000 euros (EUR) in respect
of non-pecuniary damage and 14,550.27 Ukrainian hryvnias (UAH) (around
EUR 1,302.52) in respect of pecuniary damage (compensation for
electricity, gas and heating payments made between November 1999 and 18 July
2012).
The Government submitted that the applicant’s
claims were wholly unsubstantiated.
As regards the applicant’s claims in respect of
pecuniary damage, the Court notes that they concern reimbursement for his
heating, electricity and gas payments between December 1999 and June 2012. The
Court notes that the present application is limited to the refusal of the
domestic courts to allow the applicant’s claims relating to the period prior to
April 2004. It is apparent from the available material that in the domestic
proceedings the applicant claimed reimbursement of the payments made between
December 1999 and April 2004.
Concerning the applicant’s request for
compensation for heating payments, the Court notes that it does not follow from
the available material that the applicant should have been exempted from
heating costs for the period in question (see paragraph 13 above). He also
provided only part of his bills for his electricity and gas payments between
December 1999 and April 2004.
Regard being had to the above considerations and
to the documents in its possession, the Court, deciding on an equitable basis,
awards the applicant EUR 65 in respect of pecuniary damage (gas and electricity
costs incurred by the applicant between December 1999 and April 2004, as
substantiated by the bills) and EUR 2,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed UAH 335.88 (around
EUR 33.47) in postage costs and EUR 1,702.40 in expenses related to his legal
representation before it.
The Government submitted that the applicant had
failed to substantiate part of his legal expenses and that they were in any
event exorbitant. The applicant had also failed to substantiate part of his
postage costs.
According to the Court’s case-law, an applicant
is entitled to reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the above
criteria, the documents in its possession and the legal aid granted (EUR 850) the
Court considers it reasonable to award the sum of EUR 885.87 covering costs for
the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaint under Article 1 of
Protocol No. 1 to the Convention admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 1 of Protocol No. 1;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 65 (sixty-five euros), plus any tax that
may be chargeable, in respect of pecuniary damage;
(ii) EUR 2,000 (two thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(iii) EUR 885.87 (eight hundred and eighty-five
euros and eighty-seven cents), plus any tax that may be chargeable to the applicant,
in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 24 April 2014,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia
Westerdiek Mark Villiger
Registrar President
