CYIL vol. 13 (2022)

ALLA TYMOFEYEVA CYIL 13 ȍ2022Ȏ when acting as a de facto representative corporations may not be seen as victims of human rights violations. Therefore, one may assume that commercial legal persons will not be entitled to non-pecuniary damage in cases when it is impossible to find a breach of their human rights. 2.2 Currency and place of payment for companies with subdivisions As to the currency of the award and the place of payment, the difficulties may occur when the head office and subdivisions of a corporation are situated in different countries. Imagine the situation when the main office of a corporation is situated outside the respondent state, but the subsidiary has a legal address in the country against which it lodges the complaint with the ECtHR. When the ECtHR grants just satisfaction to a person not residing in the respondent state, it does not expressly specify the place of payment. It is generally accepted that the just satisfaction must be paid in the beneficiary’s state of residence. Therefore, it must be expected that the main company will receive the payment, unless there is a special agreement on the payment of the award to a subsidiary in the currency of the state of its registration. In the case of Sovtransavto v. Ukraine 81 the applicant company complained that the sums awarded as just satisfaction would be taxed at 24% in Russia, the country in which its headquarters were located. In accordance with the ECtHR’s global formula “plus any tax that may be chargeable”, in this case the respondent state paid an additional amount corresponding to the tax the company would have to pay in Russia. The similar questions were raised by the applicants in the case of Zlinsat, spol. s.r.o. v. Bulgaria . 82 For cases where the state of the seat of an applicant is not the respondent state, the best possible solution would be for the authorities of the respondent state to conclude a special agreement with the authorities of the taxing state to ensure that the sums paid will be exempt from taxation. 2.3 Corporation in liquidation The more complicated is a situation is when a corporation is in the process of liquidation. The practice of the ECtHR will depend on the time, when the winding up of the company started. If this situation of the beneficiary corporation is known at the time of the proceedings before the ECtHR , the question of the appropriate recipient of any just satisfaction is usually addressed in a special provision included in the judgment. For example, in the case of Credit and Industrial Bank v. the Czech Republic, the ECtHR indicated that payment would have to be made to the applicant company’s representative, notwithstanding the fact that this company had been placed under the control of a court appointed administrator. 83 The reasons for such a conclusion laid down in the fact that the applicant company’s management was unable to contest decision to place the company under compulsory administration, which in itself violated Article 6 of the ECHR. In another case, where there had been no conflict between the liquidator and the applicant company, payment was ordered to be made to the liquidator. 84 Under a general rule, if the judgment does not contain indications on the subject, it is for the state to find the appropriate solutions. 81 Ibid. 82 Zlínsat, spol. s r.o., v. Bulgaria (just satisfaction), no. 57785/00, 10 January 2008. 83 Credit and Industrial Bank v. the Czech Republic, no. 29010/95, § 88, ECHR 2003-XI (extracts). 84 Buffalo S.r.l. en liquidation v. Italy (just satisfaction), no. 38746/97, § 29, 22 July 2004.

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