Member Article

The European Convention on Human Rights applies also to legal entities.As a result, businesses and organisations can address the European Court of Human Rights if they consider that their human rights, guaranteed under the European Convention on Human Rights, have been violated. Although not rare in Europe, this option is still new and not widely used by companies in the Baltics. Following an interest lately expressed by several of our clients, we have asked Rimantë Tamulytë – LAWIN associate and an expert in this area due to her previous experience of being a lawyer at the European Court of Human Rights in Strasbourg, France (2007- 2010) – to comment on this issue.

Q: What is meant by “human rights” in relation to legal entities?

- Basically, “human rights” of companies are the same as for natural persons. Of course, there are certain limitations, due to specific characteristics of legal persons – for example, normally a company will not be able to claim a violation of the right to life. Companies can, however, address the Court when they consider that their right, for example, to a fair trial, to freedom of expression, the right to property, etc., have been violated.

Q: What cases are generally the most popular with regard to legal entities?

- Issues brought up by various companies all over Europe mostly relate to the protection of property, such as nationalisation of certain immovable property or changes in rules governing the use of land (when restrictions are imposed), fair trial guarantees in civil, criminal, or administrative proceedings, including fines received for violation of competition law and freedom of expression cases (usually by newspapers and publishing houses).

The case of Yukos v. Russia is among the most widely known of the recent cases. In this case, the Russian company launched a claim against the Russian State concerning retroactive application of law and fairness proceedings in the imposition of massive fines for violation of tax regulations. The European Court of Human Rights found that there had been a violation and is due to decide on the amount to award to the applicant.

Q: Do companies in the Baltic States widely use this option to protect their interests?

- Legal entities in the Baltic States so far have not been very much inclined to use this option for the protection of their interests. Partially this may be explained by an on-going perception that only natural persons can address the European Court of Human Rights.

Q: What are the remedies in case of a favourable judgment?

- Generally, if it is ruled that there has been a violation of a right to property, the court will decide on the amount of compensation to be paid to the applicant. Depending on the violation, the award may be quite substantial. For example, in a recent judgment in Sud Fondi Srl a.o. v Italy, the claimant company has been awarded 37 million euros as compensation for damages due to a violation of its property rights.

- As concerns the right to a fair trial, there is a question not only of compensation, but in many countries this can also mean a reopening of domestic proceedings, which may be very beneficial to the entity concerned. Finally, in some situations the court can find a problem with the laws of the country and in such case it usually indicates that a change is needed in the relevant legal regulation.

Q: What advice would you give to a company that is planning to submit an application?

- First of all, to make sure that all domestic remedies that are effective have been used.

- Further, a company has to check that all points that it is intending to raise at the European Court of Human Rights have already been raised in the domestic courts.

- And, finally, it is important not to miss the 6 month time limit from the final decision in the matter. One should take into account that if there are several related proceedings, the time limit for application with each set of proceedings will be different (for example, a final decision concerning interim measures will be taken much earlier than a decision considering the actual claim, and thus if the complaint relates to interim measures, the 6 months will be counted from the final decision on interim measures).

ESTONIA: So far Estonian companies have not been active in bringing their cases to the European Court of Human Rights. There has been only one such case that was resolved by the Court in 2008. In the said case, an Estonian company filed a claim against the Republic of Estonia and stated that its rights to fair and effective court proceedings was violated as a case in an Estonian court where this particular company was a defendant lasted for eight years and only then terminated with an amicable settlement.  The Court found indeed that there was a breach of the company’s fundamental rights to fair and effective court proceedings and it was awarded compensation. The Court established that Estonian law provided neither for a party’s possibilities to accelerate the proceedings nor for any sanctions if a local court does not comply with the procedural deadlines set forth by law.

LATVIA: There have already been two successful cases where a legal entity has filed a claim against the state of Latvia and has obtained a positive judgment. In the first case, the applicant was a non-governmental environment protection organisation. In the second case, the applicant was a company which publishes the daily newspaper with the largest circulation in Latvia. Both cases related to freedom of expression where a legal entity had initiated proceedings against the state. In both cases, the Court held unanimously that there had been a violation of Article 10 (freedom of expression) of the European Convention on Human Rights. The Court awarded the applicants compensation for pecuniary and non-pecuniary damages and also compensation for costs and expenses.

LITHUANIA: Lithuanian companies until now have not been widely using this way of defence of their rights. So far there has been one successful case by a company, which complained of a violation of procedural guarantees in proceedings concerning taxation, however, the violation which was found to have been committed concerned only the length of proceedings. An interesting case to mention was initiated by the Lithuanian national radio and television broadcasting company, together with a company preparing television programmes alleging violation of freedom of expression in that a civil defamation claim against them was satisfied. However, the Court did not find a violation to have occurred in that particular case.

 

 

 

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