COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS FORMER SECOND SECTION. CASE OF INTERSPLAV v. UKRAINE. (Application no.

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1 CONSEIL DE L EUROPE COUNCIL OF EUROPE COUR EUROPÉENNE DES DROITS DE L HOMME EUROPEAN COURT OF HUMAN RIGHTS FORMER SECOND SECTION CASE OF INTERSPLAV v. UKRAINE (Application no. 803/02) JUDGMENT STRASBOURG 9 January 2007 FINAL 23/05/2007 This judgment will become final in the circumstances set out in Article 44 2 of the Convention. It may be subject to editorial revision.

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3 INTERSPLAV v. UKRAINE JUDGMENT 1 In the case of Intersplav v. Ukraine, The European Court of Human Rights (Second Section), sitting as a Chamber composed of: Mr J.-P. COSTA, President, Mr A.B. BAKA, Mr I. CABRAL BARRETO, Mr K. JUNGWIERT, Mr V. BUTKEVYCH, Mrs A. MULARONI, Ms D. JOČIENĖ, judges, and Mr S. NAISMITH, Deputy Section Registrar, Having deliberated in private on 31 March 2005 and on 5 December 2006, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1. The case originated in an application (no. 803/02) 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-Spanish Joint Venture Intersplav ( the applicant ), on 6 December The applicant was represented by Mr. Aleksandr Syomkin. The Ukrainian Government ( the Government ) were represented by their Agents, Mrs V. Lutkovska and Mrs Z. Bortnovska. 3. The applicant alleged, in particular, that the State s practice of groundlessly refusing to confirm the applicant s entitlement to VAT refunds constituted an interference with the peaceful enjoyment of its property, and that such interference was disproportionate and caused significant losses to its business. 4. The application was allocated to the Second Section of the Court (Rule 52 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 1 of the Convention) was constituted as provided in Rule By a decision of 31 March 2005, the Court declared the application partly admissible. 6. On 1 April 2006 the Court changed the composition of its Sections (Rule 25 1), but this case remained with the Chamber constituted within the former Second Section. 7. The applicant and the Government each filed observations on the merits (Rule 59 1).

4 2 INTERSPLAV v. UKRAINE JUDGMENT THE FACTS I. THE CIRCUMSTANCES OF THE CASE 8. The applicant company, Intersplav (hereinafter the applicant ), is a joint venture enterprise, based in the town of Sverdlovsk in the Lugansk Region, Ukraine. 9. The facts of the case, as submitted by the parties, may be summarised as follows. 10. The applicant manufactures goods using recycled scrap metal purchased in Ukraine, bearing a 20 % VAT rate. The major part of the applicant s production is exported from Ukraine at a zero VAT rate. The applicant is thereby entitled to a refund of the VAT due on the price of the scrap metal. Under the Law on Value-Added Tax (see the Domestic Law part below) such a refund should be made within a one-month period following the applicant s submission of the relevant calculations to the local tax administration. If the refund is delayed, compensation is payable. Both payments (the refund and compensation) are made by the State Treasury upon the submissions of the relevant tax authority. 11. Since April 1998, the VAT refund to the applicant has been systematically delayed due to the failure of the Sverdlovsk Town Tax Administration to confirm the amounts involved. For the same reason, the applicant could not receive compensation for the delayed VAT refund. 12. Since 1998, the applicant has complained to the Lugansk Regional Tax Administration and the State Tax Administration about the failure of the Sverdlovsk Town Tax Administration to issue certificates for the VAT refunds on time. However, these authorities found no illegalities in the actions of the Sverdlovsk Town Tax Administration, whilst recognising the existence of the State s debts to the applicant. 13. The applicant also complained to the Sverdlovsk Prosecutor and the General Prosecutor s Office, without any result. 14. In its letter of 22 October 2002, the applicant claimed that further obstacles had arisen in running its business, including new discriminatory legislation, transport controls by the police, and judicial proceedings against its employees for defamation instituted by the Tax Administration. 15. Since 1998, the applicant has instituted a number of proceedings, more than so far, in the Lugansk Commercial Court against the Sverdlovsk Town Tax Administration and the State Treasury Department in order to receive compensation for the delayed refund of the VAT. 1 The list of the relevant court decisions can be found in the annex to the admissibility decision of 31 March 2005.

5 INTERSPLAV v. UKRAINE JUDGMENT In the proceedings during , the applicant requested the court to oblige the Tax Administration to confirm the amounts of compensation due to the applicant. The court found for the applicant and ordered the tax administration to issue the requested confirmation for the amounts claimed. 17. In the proceedings during , the applicant changed the subject of its claim and requested the courts to award it the amounts of the VAT refund and compensation directly. The Tax Administration and Treasury both opposed the claims; the former on the basis of an alleged lack of competence in VAT refunding, the latter on the basis of the impossibility of refunding any VAT without prior confirmation of such an amount by the Tax Administration. The court found for the applicant and awarded the claimed amounts in its decisions between 2001 and It confirmed the applicant s right to compensation for the various delayed VAT refunds. 18. The court decisions given between 1999 and 2002 were executed within periods ranging from four days to two years and eight months. The oldest decision that remained unenforced in February 2004, according to the applicant, was given on 18 March In its further correspondence, the applicant maintained that the Tax Authorities claimed that the court decisions given in its favour should not be directly enforceable, but would require the prior confirmation of the awarded amounts by the Tax Administration. 20. On 17 March 2004 the applicant lodged a claim with the Lugansk Commercial Court against the Lugansk Regional Department of the State Treasury and the Sverdlovsk Town Tax Administration for their refusal to enforce the judgments rendered by the said court in the period between March 2003 and February 2004 (see the annex) and for a proposal to convert the amounts awarded by the above judgments into loan bonds with a five-year term. 21. On 24 May 2004 the court found for the applicant and ordered the defendants to enforce the impugned judgments. 22. The applicant maintained that, as of 18 June 2004, the amount of the State debt to the company confirmed by court decisions was UAH 26,363,200 (around EUR 4,119,250). II. RELEVANT DOMESTIC LAW 23. The collection and refunding of value-added tax (VAT) is regulated by the Law on Value-Added Tax. Article 3 of the law provides that both the sale of goods in Ukraine and the export of goods from Ukraine are subject to taxation. Under Article 6 of the law, the former is taxed at a 20 % rate, whereas the latter is taxed at 0 %. 24. The procedure to establish the amount of VAT due or to be refunded is regulated by Articles 7 and 8, which provide as relevant:

6 4 INTERSPLAV v. UKRAINE JUDGMENT 7.7. The procedure to establish the amount of tax to be paid into the budget or to be used as compensation from the budget, and the terms of settlements within the budget The amount of tax to be paid into the budget or refunded from the budget shall be determined as the difference between the total amount of tax obligations, which commence with any sale of goods (works, services) within the reporting period, and the amount of tax to be credited during the reporting period. Payment of the tax shall be made not later than the twentieth day of the month that follows the reporting period The tax payer shall submit a tax declaration to the local body of State tax services Where... the amount determined by subparagraph of this Article is negative, it shall be refunded to the tax payer from the State budget of Ukraine within a month following the reporting period.... Amounts that are not so refunded to the tax payer... shall be considered a budget debt. Interest at 120 % of the basic rate of the National Bank of Ukraine shall be charged on that debt from the moment it arises and for the whole period of its validity, the repayment date inclusive. The tax payer is entitled at any moment after commencement of the budget debt to apply to a court with an action to collect the budget funds and establish the liability of the officials responsible for the untimely refund of overpaid taxes Amounts of value-added tax are included in the State budget and shall first be used for budget refunds of value-added tax according to this Law.... Where the amount of budget receipts obtained from the payment of value-added tax... does not cover the amount subject to refunding..., funds from other [State budget] resources... shall be used for such compensation A tax payer that performs export operations... and files calculations for export compensation... may receive such compensation within 30 calendar days from the date of submitting such calculations Export compensation shall be provided within 30 calendar days, following the day of the filing of export compensation calculations. In case the tax payer fails to submit the calculation of export compensation within the established terms, export compensation shall not be provided and the amounts of such compensation shall be taken into account when calculating the tax payer s future tax obligations... Calculations of export budgetary compensation shall be submitted together with the declarations for the corresponding reporting period. 25. According to the Procedure for the Refund of Value Added Tax, adopted by the joint decree of the State Tax Administration of Ukraine and the Main Department of the State Treasury of Ukraine No. 209/72 on 2 July 1997, the VAT refund is made by the State Treasury of Ukraine on the basis of a confirmation by the tax authorities or a court decision. The VAT refund

7 INTERSPLAV v. UKRAINE JUDGMENT 5 shall be made within five days after the tax authority has submitted the confirmation of the amount claimed. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 26. The applicant company claimed that the State s practice of groundlessly refusing to confirm its entitlement to VAT refunds constituted an interference with the peaceful enjoyment of its property in violation of Article 1 of Protocol No. 1 to the Convention. This provision 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. Whether there was a possession 1. The submissions of the parties 27. The Government maintained that the applicant s entitlement to VAT refunds could only be considered a possession under Article 1 of Protocol No. 1 after confirmation of the amounts by court decisions. If the tax authorities disputed the entitlement of the applicant to the claimed VAT refund, it was only by virtue of a court decision that the applicant acquired possessions or legitimate expectations to receive them. 28. The Government disagreed with the conclusion reached in the admissibility decision that the tax authorities had not objected to the amounts of the VAT refund claimed by the applicant. 29. The applicant maintained that the basis for the VAT refund under the law was the information provided by the applicant itself in its tax declarations. The court decisions given in its favour in the present case showed that its right to the VAT refunds was violated prior to its application to the courts, thus demonstrating that the right existed prior to those decisions. Moreover, under the law, the State could only use funds received

8 6 INTERSPLAV v. UKRAINE JUDGMENT from VAT payments for other purposes after all VAT refunds had been made. Until then, therefore, the link between the VAT and the taxpayer remained. It concluded that the right to VAT refunds, and compensation for delays in their payment, constituted possessions within the meaning of Article 1 of Protocol No The Court s assessment 30. The Court points out that the concept of possessions in the first part of Article 1 of Protocol No. 1 has an autonomous meaning which is independent from the formal classification in domestic law (see Beyeler v. Italy [GC], no /96, 100, ECHR 2000-I). The issue that needs to be examined is whether the circumstances of the case, considered as a whole, conferred on the applicant an entitlement to a substantive interest protected by Article 1 of Protocol No In this connection, the Court notes that in the instant case the dispute does not concern the particular amount of a VAT refund or of compensation for the delay, but the applicant s general entitlement under the law to VAT refunds and compensation. The Court observes that, having met the criteria and requirements established by the domestic legislation, the applicant could reasonably expect the refund of the VAT it had paid in the course of its business activities, as well as compensation for any delay. Even though a particular claim for a VAT refund may be subject to checks and objections from the competent State authorities, the relevant provisions of the Law on Value-Added Tax do not require the prior judicial review of a claim to validate a company s eligibility for a refund. As to the Government s objection to the conclusion reached in the admissibility decision that the tax authorities had not objected to the amounts of the VAT refund claimed by the applicant, the Court notes that that conclusion was based on the materials in its possession. From the casefile materials it appears that the tax authorities did not dispute the amounts of the VAT refunds to be paid to the applicant, but simply refused to confirm them without any apparent reason, relying erroneously on a lack of competence in refunding matters. It is true, however, that on several occasions, and only once successfully, the calculations of the compensation for the VAT refund delay made by the applicant had been objected to by the tax authorities in the courts proceedings. This latter point, however, does not negate the Court s conclusion about the original VAT refund proceedings. 32. While the Court does not find it necessary to determine the precise content and scope of the legal interest in question, it is nevertheless satisfied that the factors outlined above show that the applicant had a proprietary interest recognised by Ukrainian law, and protected by Article 1 of Protocol No. 1 (see, mutatis mutandis, Buffalo S.r.l. en liquidation v. Italy, no /97, 29, 3 July 2003).

9 INTERSPLAV v. UKRAINE JUDGMENT 7 B. Whether there was interference 33. The parties did not dispute that the delays in refunding the VAT to the applicant could be regarded as interference with the applicant s right to peaceful enjoyment of its possession. In the Court s opinion, this situation comes within the first sentence of the first paragraph of Article 1 of Protocol No. 1, which lays down the principle of peaceful enjoyment of property in general terms (see Buffalo S.r.l. en liquidation, cited above, 31). C. Whether the interference was justified 1. The submissions of the parties 34. The Government maintained that there were exceptional circumstances that necessitated measures to protect the economic interests of the country. The State faced a situation in which the system of VAT refunding was abused; in particular, there were numerous cases of VAT evasion, groundless claims for VAT refunds and fictitious export operations. In this situation the Government were required to take measures to stop such abuses and to prevent them in the future. In the Government s opinion, the judicial control over the VAT refunding was necessary to secure the public interest and to prevent abuses. 35. The Government further stated that the tax authorities actions in the present case were based on a disproportion between the amounts paid by the applicant in taxes and the amounts of VAT refund which it claimed. This created a suspicion that the applicant was using fictitious companies for its scrap metal supplies. According to the Government, such fictitious enterprises had indeed been discovered by the authorities. 36. The Government considered, therefore, that the measures taken were within the State s margin of appreciation and the interference was proportionate, and therefore a fair balance had been struck between the interests of the applicant and the public interest. 37. The applicant maintained that it had paid its taxes lawfully and these payments had been checked on numerous occasions by the State authorities. It pointed out that it was not responsible for other companies from whom it bought metal, the price of which was inclusive of VAT. The obligation to pay that VAT was on the latter companies, not the applicant. The applicant underlined that it had neither the competence nor the possibility to control other businesses, and the situation referred to by the Government demonstrated the unsatisfactory workings of the tax authorities, for which the applicant should not be held liable. It further underlined that numerous checks of its activities conducted by the tax authorities had revealed no irregularities on which the latter could base their refusals.

10 8 INTERSPLAV v. UKRAINE JUDGMENT 2. The Court s assessment 38. The Court reiterates that States have a wide margin of appreciation in determining what is in the public interest as the national legislature has a wide discretion in implementing social and economic policies. However, that margin of appreciation is not unlimited and its exercise is subject to review by the Convention institutions (see Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p , ). In the Court s view, when the State authorities possess any information about abuse of the VAT refund system by a concrete entity, they can apply appropriate measures to prevent or stop such abuses. The Court cannot, however, accept the argument about a general situation with the VAT refunds advanced by the Government, in the absence of any indication of the applicant s direct involvement in such abusive practices. 39. The Court further notes that since April 1998 the VAT refunds to the applicant have been systematically delayed. Such delays were caused by the situation in which the tax authorities, not disputing, as it appears from the case-file, the amounts of VAT refunds due to the applicant, constantly failed to confirm these amounts. Such failure prevented the applicant from recovering the claimed amounts in due time and created a situation of chronic uncertainty. Furthermore, it forced the applicant to appeal to the courts on a regular basis with identical claims. In the Court s view, it may be considered reasonable to require that such refusals be challenged in a single or a few cases. However, in the present case, the applicant s recourse to this remedy has not prevented the tax authorities from continuing the practice of delaying payment of the VAT refunds, even after court decisions have been given in the applicant s favour (cf. paragraph 18 above). The systematic nature of the failings of the State authorities has resulted in an excessive burden being imposed on the applicant. 40. In these circumstances, therefore, the Court considers that interference with the applicant s possession was disproportionate. In fact, the constant delays with VAT refund and compensation in conjunction with the lack of effective remedies to prevent or terminate such an administrative practice, as well as the state of uncertainty as to the time of return of its funds, upset the fair balance between the demands of the public interest and the protection of the right to peaceful enjoyment of possessions. In the Court s view, the applicant bore and continues to bear an individual and excessive burden (see, mutatis mutandis, Buffalo S.r.l. en liquidation, cited above, 39).There has accordingly been and continues to be a violation of Article 1 of Protocol No. 1.

11 INTERSPLAV v. UKRAINE JUDGMENT 9 II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 41. 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 1. Pecuniary damage 42. The applicant claimed UAH 52,909,140 (around EUR 826,709.38) as compensation for loss of profits, UAH 8,380, (around EUR 1,309,435.26) as compensation for inflation losses, UAH 2,114, (around EUR 330,435.13) of expenses for bank credits, and UAH 583, (around EUR 91,241.11) of expenses for severance payment. 43. The Government maintained that the applicant s claims under this head were ill-founded. 44. The Court takes into account that in the present case interest at 120 % of the basic rate of the National Bank of Ukraine should be charged on debts of VAT refund to the applicant from the moment they arise and for the whole period of their validity. Whilst the Court cannot speculate as to the economic performance of the applicant, it does not find it unreasonable to regard the applicant as having suffered some material loss. Ruling on an equitable basis, in accordance with Article 41, the Court awards EUR 25, (see, mutatis mutandis, Pélissier and Sassi v. France [GC], no /94, 80, ECHR 1999-II). 2. Non-pecuniary damage 45. The applicant claimed a symbolic sum of 1 Euro for non-pecuniary damage. 46. The Government left the issue to the Court s discretion, if the latter should find a violation of the Convention. 47. The Court considers that in the present case, there is no call for a pecuniary award under this head. Accordingly, it does not make any award in that respect. 48. The Court further considers that in the circumstances of the present case the most appropriate form of redress would, in principle, be the elimination of the administrative practice of delaying the VAT refund, which has been found to be contrary to Article 1 of Protocol No. 1.

12 10 INTERSPLAV v. UKRAINE JUDGMENT B. Costs and expenses 49. The applicant claimed UAH 3, (around EUR 560) for travel expenses and UAH 106, (around EUR 16,711.53). 50. The Government considered this claim unsubstantiated, without giving any further specification. 51. The Court considers that in so far as the applicant claims travel expenses, given the number of the domestic proceedings (see paragraph 15), the claimed amount appears to be justified. The Court, therefore, awards it in full. As to the court fees which remained due to the applicant in the domestic proceedings at issue (see appendix to the admissibility decision of 31 May 2005), the Court considers that full payment of the court fees awarded to the applicant within the domestic proceedings listed in the Annex to the admissibility decision of 31 March 2005 would constitute final settlement in this part. C. Default interest 52. The Court considers it appropriate that the default interest 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. Holds that there has been a violation of Article 1 of Protocol No. 1; 2. 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, any remaining court fees due to the applicant in the domestic proceedings examined in the present case, as well as EUR 25,000 (twenty five thousand euros) in respect of pecuniary damage, and EUR 560 (five hundred and sixty euros) in respect of costs and expenses, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable; (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; 3. Dismisses the remainder of the applicant s claim for just satisfaction.

13 INTERSPLAV v. UKRAINE JUDGMENT 11 Done in English, and notified in writing on 9 January 2007, pursuant to Rule 77 2 and 3 of the Rules of Court. S. NAISMITH J.-P. COSTA Deputy Registrar President