NGOs under European Convention on Human Rights / Tymofeyeva

2.11.2 Independence and impartiality of judiciary One of the prominent cases in this area is the case of Sovtransavto Holding v. Ukraine . 1152 The applicant in the present case was the Sovtransavto Holding, a Russian public company. It held 49% of the shares in a Ukrainian public company, Sovtransavto-Lougansk. 1153 In 1996, a meeting of the shareholders of Sovtransavto Lougansk passed a resolution to alter its memorandum and articles of association. As a result of the changes, the applicant company’s shareholding was reduced to 20.7% and the directors of Sovtransavto-Lougansk were able to assume sole control of the company’s management and assets. The applicant company lodged a complaint with the arbitration court against Sovtransavto-Lougansk. In the meantime, the President of Ukraine had written a letter to the President of the arbitration tribunal urging him to “defend the interests of Ukrainian nationals”. In line with these ‘recommendations’ national courts dismissed all of the applicant company’s applications. As to the applicability of Article 1 of Protocol No. 1, the Court found that the shares held by the applicant company had financial value and constituted ‘possessions’ within the meaning of that provision. 1154 In regard to the protection of the these property rights, the Court reiterated that this Article imposes on state parties positive obligations, including a duty to afford judicial procedures that enable the domestic courts to adjudicate effectively and fairly. In view of thereof, the Court had jurisdiction to verify whether the application of legislation by the domestic courts was compatible with the right to the peaceful enjoyment of possessions. 1155 The unfair manner in which the proceedings in issue had been conducted negatively influenced the applicant company’s right to the peaceful enjoyment of its property. 1156 Accordingly, the Court found that the manner in which the proceedings had been conducted and the uncertainty faced by the applicant company had upset the fair balance that had to be struck between the general interest and the need to protect the applicant company’s right. Therefore, there had been a violation of Article 1 of Protocol No. 1. 1157 Ten years later the Court ruled on the other Ukrainian case concerning the interference of state officials with the activity of the judiciary – Agrokompleks v. Ukraine. 1158 In this case, it ruled that there had been three violations of Article 6 § 1 and a violation of Article 1 of Protocol No. 1 to the Convention, because the national courts lacked independence in the course of the insolvency proceedings against Ukraine’s biggest oil refinery. The applicant, Agrokompleks JSC, was a private company based in Ukraine. It signed a contract with the Lysychansk Oil Refinery 1152 Sovtransavto Holding , cited above. 1153 VRIES, P. Exit rights of minority shareholders in a private limited company . Deventer : Kluwer, 2010, p. 33. 1154 Sovtransavto Holding , cited above, § 91. 1155 TIETJE, C. International Investment, Protection and Arbitration : Theoretical and Practical Perspectives . BWV Berliner Wissenschafts-Verlag, 2011, p. 115. 1156 ANTONOV, Y. Legal mechanismes of e-democracy for ensuring of independence and impartiality of Arbitrators in the light of international practice, 2013. URL: < http://papers.ssrn.com/sol3/papers. cfm?abstract_id=2371643> accessed 20 July 2015. 1157 VRIES, 2010, cited above, p. 34. 1158 Agrokompleks, cited above.

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