#03 March 2014

In focus – European Court of Human Rights

Since Ukraine signed the Convention for the Protection of Human Rights and Fundamental Freedoms, our country is among the leaders in complaints brought to the European Court of Human Rights (ECHR). Certainly, the Court actually serves as a last hope.

Furthermore, the Court’s judgments drastically reflect the principal pitfalls of the legal system. For example, protection of property rights and non-enforcement of decisions of national courts. It’s a good source of analysis at a time when the study of case law may give lots of answers addressing the request for structural changes…

With the support of Tax Regulation

Taxpayers who carried out controlled transactions during 2013 are preparing to file reports. As the filing deadline approaches, more questions arise concerning justification of prices. In this regard, a great deal of attention is being paid to the analysis of information sources.

In view of the upcoming reporting, the Ministry of Revenue and Taxes of Ukraine held a roundtable initiated by the International Law center EUCON and by the School of Transfer Pricing. The event was attended by experts of the Ministry, businesses and publishers (owners of Internet resources) of official information. During the discussion, they identified the main issues of applicability of sources and generated a list of requirements to be met by the information contained in such sources…

Expert Opinion

The Last Stronghold of Justice

Anna I. Lobkovaskaya

The ECHR provides legal recourse of last resort for the Ukrainian judicial system, but the court’s mission is to initiate systemic reforms in a country where there is wrong doing.

More than sixteen years have passed since Ukraine signed the Convention for the Protection of Human Rights and Fundamental Freedoms, 1950. Since then the European Court of Human Rights (the ECHR, the Court) began to deal with cases against Ukraine. Currently, the number of ECHR judgments which found violation of the Convention or its Protocols by Ukraine is over one thousand (948 judgments according to the 2013 statistics). Surely, ECHR case law has strong influence on the Ukrainian legal system…

In Re

Exploring the Rules of the European Court of Human Rights

Kateryna A. Nastechko

Reference by Ukrainian citizens to the European Court of Human Rights (hereinafter — the European Court) in Strasbourg became possible after the ratification by the Ukrainian Parliament of Ukraine on 17 July 1997 the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereinafter — Convention) and its Protocols.

According to Article 34 of the Convention, the European Court can accept the claims from any physical person, any non-government organization or any group of private persons, who argued that they became victims of violation of their rights, as recognized in the Convention and its protocols…

Protection of Human Rights of Legal Entities by the European Court of Human Rights

Illya A. Peregontsev

International human rights protection law is undoubtedly one of the greatest legal achievements of humanity. It brightly reflects the very purpose and essence of law, which may be simplified as guaranteeing freedom, justice, equality and dignity for human being. But for some actors today the primary purpose of the majority of which is earning profit, actors that have “no soul to be damned and no body to be kicked” may enjoy particular opportunities of some international human rights protection instruments. The actors referred to are legal entities. Exploring the process of legal entities “penetration” to the sphere of human rights protection system may be of great interest for legal scientists. But in this article you will find more or less practical aspects of legal entities protection…

Business Lunch

The Quality of Justice for Improvement

Despite its long pending judgment, the European Court of Human Rights (ECHR) is associated with the latest pillar to seek justice. Ukraine occupies third place by number of applications after Russia and Italy. The decisions of the ECHR again and again point to systematic problems with law enforcement in our country.

We asked partner of the law firm Hincker and Associates, Grégory Thuan Dit Dieudonne, head of the department of international and European human rights law (Strasbourg, France), former senior case-processing lawyer of the European Court of Human Rights, to share his views on reform of the ECHR, its recent problems and his recent practice…

Case Law

European Convention on Human Rights and Enforcement of Ukrainian Competition Law

Sergiy O. Glushchenko

The impact of fundamental rights on competition law has been debated in the European Union (EU) for years. The context of the debate around engagement of these areas of law can be summarized as follows. The European Commission (Commission) accumulates the roles of investigator, prosecutor and judge without effective internal safeguards among those roles.

This raises legitimate doubt as to Commission’s impartiality as its decision-making powers are not detached from prosecutorial. Prosecutorial bias, which may lead to false positive convictions condemning beneficial practices, is alleged to be one of the main drawbacks behind the foregoing architecture of competition policy in the EU. Some assert that such a system fails to fully guarantee the protection of the right to a fair trial, as prescribed by Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)…

Crux

Judicial Practice: Revising Remedies and Opportunities

Since the situation in our country is undergoing dramatic changes on a week to week and day to day basis, the credibility of the court system is extremely low.  Professional and social demands for changes have crossed the point of no return. We asked several experts to share their views on recent judicial practice.

 

Anton Molchanov

For last three years Ukrainian litigation field has definitely formed a geometrical model of sinusoid where all indexes are subject to constant traveling from their lowest to the highest. From 2010 Ukrainian Themis was often requested for administrative disputes where in the vast majority of cases business entities and ordinary people fought with the government for tax, social and land benefits. In contrast to this huge administrative caseload, commercial litigation significantly ceased, most likely because of court fees incommensurate with the quality of Ukrainian commercial justice…

 

Oleksandr Denysenko

One of the key problems of the justice administration in Ukraine is the absence of civil society control over judges. This is the main reason why there are strange or even extraordinary decisions in Ukrainian courts. The judge who is adjudicating such a decision is confident of his impunity. In Ukraine the main authorities responsible for disciplinary liability of judges are the High Qualification Commission of Judges (in relation to judges of local and appeal courts) and the High Council of Justice (in relation to judges of high specialized courts and the Supreme Court of Ukraine)…

 

Alexey Pokotylo

In Ukraine if a dispute is brought entirely or partially before two different courts, and both courts determine that they are competent to try the case, then it is likely that the situation will not resolve until one of these courts ultimately renders judgment on the merits of the case, or until the case is reviewed by the Supreme Court of Ukraine. Through the example of a number of cases where there was such a conflict of jurisdiction (primarily between commercial courts and administrative courts), it can be said that, once jurisdiction is taken and a case is set for hearing, neither commercial nor the administrative courts tend to dismiss the case on the basis that it is tried by another court…

 

Maxim Korchagin

Recently the general trend in Ukraine has been aimed at reducing the number of court disputes due to the lack of stability in the economy and failure of trust to the court system, which is why the market participants preferred the out-of-court mechanisms to protect their rights. Therefore, the number of disputes related to debt recovery has decreased. However, as stated trends appeared in all types of cases, the number of disputes related to debt recovery, along with disputes related to property rights as well as disputes with government authorities participation, remained almost unchanged…

 

Andriy Pozhidayev

Ukrainian law fixes strict rules on, firstly, the possibility to adjudicate corporate disputes in non-Ukrainian forum, and, secondly, the possibility to subject corporate relations to foreign law. However, corporate regulation is rather fractionary. Questions arise when dividing a line between corporate and not so corporate disputes…

 

Vitaliy Kornev

The amended On Bankruptcy Act has been in operation for a little more than one year. Therefore it is not probably accurate to conclude that court practice in bankruptcy cases has changed drastically or significantly. It still needs to be worked out and “polished”. One year is not a sufficient period of time to establish a new and consistent court practice. Generally, court bankruptcy proceedings stay the same in nature…

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