NGOs under European Convention on Human Rights / Tymofeyeva

(LyNOS) for the refining of 225,000 tons of crude oil. The refinery delivered only a small part of the agreed oil products. Following claims brought by Agrokompleks, the Higher Arbitration Court of Ukraine (‘the HAC’) confirmed the refinery’s contractual obligations and ordered it to deliver the agreed oil products, but LyNOS failed to do so. In the same month, the applicant company brought insolvency proceedings against LyNOS, referring to the non-enforcement of the judgment in its favour. On a number of occasions during the proceedings, LyNOS complained to several state authorities. Following these complaints, a number of various state actors intervened in the proceedings on LyNOS’s behalf. In particular, the First Deputy Prime Minister asked the HAC’s president to consider the findings of a taskforce as to the need to reassess LyNOS’s debt, “having regard to its importance to the economy and security of the state.” The President of Ukraine also forwarded a letter from LyNOS to the HAC’s president, referring to Agrokompleks’ ‘exaggerated claims’ in the insolvency proceedings. 1159 The HAC’s president responded to the requests by reports on the status of the proceedings and with explanations of the measures taken. In the Court’s opinion, attempts by non-judicial authorities to intervene in court proceedings should be considered ipso facto incompatible with the notion of an ‘independent and impartial tribunal’. It has no relevance whether the impugned interventions actually affected the course of the proceedings. Coming from the executive and legislative branches of the state, such interventions reveal a lack of respect for the judicial office itself. This justified the applicant company’s fears as to the independence and impartiality of the tribunals. With regard to alleged violations of Article 1 of Protocol No. 1, the applicant company complained that it had been unable to recover in full the oil it had supplied to the state-owned oil refinery. Moreover, the domestic court revised the amount of arrears after it had already been established by the HAC’s final ruling and reduced it considerably. 1160 The Court pronounced that the insolvency proceedings initiated by the applicant company against LyNOS had a direct impact on its property interests. Taking into account the Court’s findings on the lack of independence and objective impartiality of the domestic courts, the Court was of the opinion that no ‘fair balance’ was struck between the demands of the public interest and the need to protect the applicant company’s right to the peaceful enjoyment of its possessions. 1161 2.11.3 Non-enforcement of judgments An applicant company complained under Article 6 of the Convention and Article 1 of Protocol No. 1 about non-enforcement of the court’s judgment in the case of OOO PTK “Merkuriy” v. Russia . 1162 The judgment concerned compensation for the applicant company’s premises, which were expropriated 1163 by the Khabarovsk Town Council. 1159 Court makes €27m award after Ukraine human rights violations. URL: accessed 20 July 2015.

1160 ŠI Ṭ RÎT, 2014, cited above, p. 80. 1161 Agrokompleks, cited above, § 170. 1162 OOO PTK “Merkuriy” , cited above, § 17. 1163 MACHETTI, 2012, cited above, p. 552.

219