Retrospective Bankruptcy Legislation In The Practice Of The European Court Of Human Rights And Constitutional Court Of Ukraine

Abstract

The paper focuses on the debtor’s contract awarded into a suspicious bankruptcy period. Special attention is paid to retrospective bankruptcy legislation according to which the debtor’s contracts may be declared invalid.

The article deals with the practice of the Supreme Court, the Constitutional Court of Ukraine, the European Court of Human Rights. The European Court of Human Rights in the case «James and Others v. The United Kingdom» stated that the fairness of a system of law governing the contractual or property rights of private parties is a matter of public concern and therefore legislative measures intended to bring about such fairness are capable of being «in the public interest», even if they involve the compulsory transfer of property from one individual to another.

Special attention is paid to cases “Melnyk v. Ukraine” in which the European Court of Human Rights requires retrospective civil legislation is not expressly prohibited by the provisions of the Convention and in certain circumstances may be justified. Therefore, the Court considers that the issue of an effective remedy is concerned, the remedy in question must already exist with a sufficient degree of certainty. The retroactive application of civil procedural law would undermine the principle of legal certainty and would be contrary to the rule of law when it deprives a person of access to a remedy which is deemed to be effective for the purposes of Article 35 § 1 of the Convention.

The issue of this paper is to show that the aim of the legislation could not have been achieved without retrospection and the author is accordingly satisfied that a reasonable degree of proportionality exists between the means employed and the aim sought to be achieved because each party has access to effective remedies.