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Ukraine: Higher Commercial Court seeks to increase awareness of the ECHR jurisprudence
CMS Cameron McKenna,
Kyiv, Ukraine, Wed, June 08, 2016
On 22 April 2016, the Higher Commercial Court of Ukraine (the “HCCU”) distributed the information letter “On the 1950 European Convention on Human Rights, Jurisdiction and Jurisprudence of the European Court on Human Rights” No. 01-06/1444/16 (the “Letter”). The Letter was issued with a view to providing guidance for Ukrainian courts, who are obliged to use case law of the European Court of Human Rights (the “European Court”) as a source of law, under the Law of Ukraine “On Enforcement of Judgments and Application of Practice of the European Court on Human Rights” dated 23.02.2006 (No. 3477-IV).
In practice however, until recently, courts in Ukraine rarely relied on the cases of the European Court. Consequently, and as a result of other factors, Ukraine is now the country with the highest case-count with a current total of 13,850 applications. This is followed by Russia with 9,200; Turkey with 8,450; Italy with 7,550; and Hungary with 4,600.
As well as providing inferior courts with general information about the European Convention on Human Rights (the “ECHR Convention”) and setting out provisions of Ukrainian law requiring application of the European Court’s practice, the Letter contains a table with excerpts in Ukrainian from judgements of the European Court, which are applicable to certain provisions of the Commercial Procedure Code of Ukraine.
The relevant provisions of the Commercial Procedure Code include: equality before the court and the law, publicity and openness of judicial process, judge disqualification, evaluation of evidence, expertise, grounds for dismissal and for return of a claim, terms within which commercial courts are required to consider a case: (i) in the first instance (ii) at the stage of appeal and (iii) in cassation, and enforcement of court judgements etc.
The issuance of the Letter is a positive step forward in incorporating the principles embodied in the ECHR Convention into the jurisprudence of the courts of Ukraine.
Olexander Martinenko, Senior Partner, Olexander.Martinenko@cms-cmck.com