Ukraine response to ECHR application “domestic remedies not exhausted”

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German lawyer Giemulla filled an application at ECHR against the state of Ukraine. The application registered as Kenke v. Ukraine application number 4412/15 states that Ukraine is liable for not closing the airspace over Eastern Ukraine at July 17, 2014.

Giemulla demands for each of his client  1 million Euros in compensation.

ECHR requested Ukraine at December 12 2016 to commit their comments to this application. Ukraine did so at January 17, 2017.

Here are the comments.

A summary of the comments by Ukraine in original PDF:

  1. there is no common practise for completely closing airspace in conflict area’s. The airspace over Eastern Ukraine was closed at a higher altitude than was done in other conflict area’s.
  2. Russia closed certain airways from ground level up to flightlevel 530. Ukraine states that it seems Russia had better information about safety risks which it did not share with Ukraine.
  3. Ukraine did not yet had a chance to put matters right using its own domestic legal systems. Exhaustion of domestic remedies is a requirement for ECHR to accept an application and start a case. ECHR is not a court for first instance. See article 35 of the Convention.
  4. Giemulla has failed to commit any plausible explanations why he was not required to turn to domestic remedies or to show that Ukraine remedies were not effective. Nor did Giemulla show there is administrative practise of failure to carry out investigations or offer assistence.
  5. Ukraine states that while Giemulla claims his cost for this application are to be paid by Ukraine, Giemulla failed to indicate the Court the basis of calculation for his fee.
  6. Giemulla did not include a contract indicating that he offered legal services to his client (Kenke).


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