NGOs under European Convention on Human Rights / Tymofeyeva

structural impartiality. Consequently, the Procola company had legitimate grounds for fearing that the members of the Judicial Committee would feet bound by the previously-given opinion. 588 The doubts in themselves were sufficient to vitiate the impartiality of the tribunal in question and led to the conclusion that there had been an infringement of Article 6 of the Convention. Independence of courts in insolvency proceeding was an issue in the case of Agrokompleks v. Ukraine. 589 A private company (‘Agrokompleks’) initiated the litigation proceedings against the biggest oil refinery in Ukraine (‘LyNOS’), in an attempt to recover its outstanding debts. Before the Court, the Agrokompleks complained of unfairness in the proceedings at issue, alleging that the domestic courts were not independent, nor impartial, given the intense political pressure surrounding the case. The applicant provided the Court with copies of LyNOS’s requests to the First Deputy Speaker and the Speaker of Parliament, as well as the Prime Minister and the President of Ukraine, for intervention in the court proceedings, as well as with letters from those officials to the Ukrainian Higher Arbitration Court’s (‘the HAC’) President with instructions to quash the court’s earlier decision to terminate the proceedings. The Court also noted that the HAC’s President responded to some of those letters. Furthermore, LyNOS explicitly thanked the President of Ukraine for his interventions, which it considered to be successful. In view thereof, the Court concluded that the tribunal was not independent, nor impartial. 590 A very similar situation occurred in the other well-known Ukrainian case of Sovtransavto Holding v. Ukraine. 591 When evaluating the independency of Ukrainian courts in general, the Court considered this case to be an example of political pressure on courts in the country. 592 The case originated in an application lodged with the Court by a Russian company, the Sovtransavto Holding. Between 1993 and 1997, the applicant company held 49% of the shares in Sovtransavto-Lugansk, a Ukrainian public limited company. Following the Lugansk Executive Council’s ratification of unlawful decisions by the Sovtransavto-Lugansk company, the value of its shares in that company went down and it lost control of the company’s activities and assets. Sovtransavto Holding instituted proceedings before Ukrainian courts in order to cancel the decisions on changes in shares. In the course of these proceedings, Sovtransavto-Lugansk asked the President of Ukraine for assistance. The Ukrainian President sent a resolution to the President of the Supreme Arbitration Tribunal urging the “defence of Ukrainian national interests”. Recognizing the interventions of the executive branch of the state in the domestic court proceedings, the Court found that the applicant company’s right to have a fair hearing in public by an independent 588 POWER, A. Judicial Independence and the Democratic Process: Some Case Law of the European Court of Human Rights. International Bar Association Conference 2012. URL: accessed 28 February 2015. 589 Agrokompleks, cited above. 590 ŠI Ṭ RÎT, Š. The culture of judicial independence: rule of law and world peace . Leiden: Brill, 2014, p. 81. 591 Sovtransavto Holding , cited above. 592 Agrokompleks, cited above, § 133.

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