Sparks fly in the Ukraine

Kirovogradoblenergo, Pat v Ukraine (Application no. 35088/07) 27 June 2013 – read judgment 

Shortly after the break up of the Soviet Union, the Ukraine introduced an interesting piece of legislation called the Status of Judges Act.

Being a judge behind the Iron Curtain couldn’t have been much fun, and rendering the profession more attractive once society had opened up somewhat was probably one of the more pressing challenges facing the new regime. One of the chief provisions in the SoJA was to spare members of the judiciary from paying half their electricity bills. What this tells us about the status of judges before and shortly after the dissolution of communism is itself an interesting subject, but outside the scope of this post.

Background

When Judge Z failed to pay his bills, the applicant company, a privately owned electricity supplier, cut him off. Litigation ensued, with a final court ruling that by cutting off the electricity in Judge Z.’s apartment, the applicant company had breached “the judge’s immunity and inviolability of his residence” and that judges’ privileges should not depend on availability of “budget financing”.

The electricity company complained before Strasbourg that this 50% judicial discount should have been reimbursed by the state, and that its failure to do so breached its right to enjoyment of its possessions under Article 1 of Protocol No. 1  of  the Convention.

Curiously enough, neither party made any submissions on the substantive part of this case. Instead, they invested all their energy in the preliminaries, which means that most of this very short judgment is devoted to admissibility arguments. Nevertheless the Court was clearly intrigued by the merits and sought to give the central argument the prominence it deserved. It summarised the position thus:

the applicant company was obliged to supply electricity, which appears to be its main business activity, to a certain category of users (judges) with a 50% reduction. This reduction was set out in a legal provision by way of a privilege granted by the State to a certain category of its agent….the Judges Status Act unconditionally provided for a 50% reduction in electricity payments for judges. … Consequently, the applicant company was obliged to provide electricity free of charge to the above category of its clients.[italics added]

With that last sentence, the Court made clear its conclusion that such an obligation constituted an interference with the applicant company’s possessions.

The Court’s judgment

Having found that A1P1 was engaged, it was a short logical step to finding a violation. The domestic courts had effectively washed their hands of the matter when they found that no state budget had been put aside for making up the shortfall in the electricity suppliers’ expenses. Sparing the judiciary half their electricity costs was a matter for the government, the reasoning went, and so was the provision of financing for the unpaid part of the judges’ utilities bills. The State Budget was no business of theirs.

Strasbourg was having none of this, and out of this somewhat unpromising dispute it drew this resounding conclusion:

The Court considers that that situation – where the applicant company was not able to pursue half of the debt owed to it because of the absence of clear and foreseeable law on the matter – amounts to an interference with the applicant company’s right to peaceful enjoyment of its possessions which had no basis in law.

That said, on the matter of damages the failure of the parties to engage with the merits of the case did them no favours. The applicant company had failed to advance any evidence for its claim for nearly four thousand Euros of pecuniary damages, so the Court awarded it with the princely sum of €95.67 for the expenses of the first set of domestic court hearings.

A disappointment perhaps for the parties concerned, but a principled approach to the rule of law. This is after all what the Strasbourg Court is for, however dishevelled the submissions and insignificant the losses involved.
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