Practice Areas Review: Litigation

General Overview of the Ukrainian Judicial System

Andrey KUZNETSOV

Andrey KUZNETSOV

Partner, Antika Law Firm

PROfile

ANTIKA

Address:
12 Khreschatyk Street,
2nd Floor, Kiev, 01001
Tel.:
+38 044 390 0920
Fax:
+38 044 390 0921

Antika Law Firm was founded in 2010. The firm provides legal services to national and international companies that do business in Ukraine and abroad. 

Main areas of practice: antitrust, litigation and arbitration, criminal defense for business, construction & real estate, subsoil use, energy & energy efficiency, project financing, corporate/M&A, legal expertise.

The firm has been recognized by authoritative international and Ukrainian guides such as The Legal 500 EMEA, Chambers Global, Chambers Europe, IFLR1000 Energy and Infrastructure, Best Lawyers, Ukrainian Law Firms, 50 Top Law Firms of Ukraine, and is recommended in the area of antitrust, dispute resolution, corporate/M&A, banking, finance and capital markets, real estate, land, subsoil use, energy, energy efficiency and energy savings.

Antika’s team includes 15 lawyers, who have significant experience in various fields of legal practice.

Our lawyers are professionals with broad experience and skills to provide comprehensive and creative solutions. We follow traditions in law. Meanwhile, having a good understanding of today’s challenging business requirements and a deep knowledge of the legal environment we bring an innovative, creative and practical problem-solving approach to all of our work.

The firm’s main principles are high quality and timely legal services, strict confidentiality and a bespoke approach to every client’s project.

Antika serves Ukrainian and international companies doing business in telecommunications, heavy machinery, chemical and food industries, pharmaceuticals, automotive, construction, real estate and complex development, energy, oil and gas, subsoil use, wholesale and retail, media and sports, banks and financial services market.

The firm also advises the World Bank, EBRD, NEFCO, KfW, USAID on energy efficiency, utility and other infrastructure projects in Ukraine.

The firm is a member of the Ukrainian Chamber of Commerce and Industry, the American Chamber of Commerce in Ukraine, the Canada-Ukraine Chamber of Commerce, the European Business Association, and the International Turkish Ukrainian Businessmen Association.

 

The principles of delivering justice are declared in the Constitution of Ukraine. The most important principles are: justice is carried out solely by courts; delegation of functions of the court as well as their assumption by other state bodies or state officials are inadmissible; extension of court jurisdiction over all legal relationships emerging in the state; judgments are binding over the entire territory of Ukraine.

The judicial system of Ukraine consists of courts of general jurisdiction and the court of constitutional jurisdiction. The courts of general jurisdiction specialize in civil, criminal, commercial, administrative cases and cases on administrative offences. The courts of general jurisdiction are made up of general courts and specialized courts (commercial and administrative courts). The Supreme Court of Ukraine is the highest instance in the judicial system of courts of general jurisdiction. The Constitutional Court of Ukraine is the court of constitutional jurisdiction.

Consideration of a particular case by the respective courts depends on the parties involved in a dispute and the case category. The procedure for dispute consideration is specified separately for each category of cases by the Civil Procedure Code of Ukraine (2004), the Commercial Procedure Code of Ukraine (2012), the Administrative Procedure Code of Ukraine (2005), the Code of Ukraine on Administrative Offences (1984), the Criminal Procedure Code of Ukraine (2012)) and On the Constitutional Court of Ukraine (1996), On Bankruptcy Proceedings Act of Ukraine (1992), the Tax Code (2010) and others).

Commercial courts consider disputes arising between businesses. Hence, commercial courts have jurisdiction over the following cases: disputes arising from the conclusion, alteration, termination and performance of commercial contracts; bankruptcy; disputes regarding securities; disputes arising from corporate relationships (even if one of the parties is a private individual); disputes arising from land relationships; disputes on protection of economic competition and other cases, if such consideration does not lie directly within the jurisdiction of other courts or such consideration is not excluded from the jurisdiction of commercial courts by procedural law.

For example, procedural law excluded from jurisdiction of commercial courts cases on privatization of the state residential fund, on pricing of products (goods), and also tariffs on services (conducting works), if these prices and tariffs cannot be fixed by parties according to the law, cases on approval of standards and technical terms, cases on public legal relations and within the competence of the Constitutional Court of Ukraine and administrative courts, other disputes within the jurisdiction of other state authorities in accordance with the laws and international agreements of Ukraine.

Private individuals should appeal to administrative courts for protection of their violated rights if the rights of a private person or an entity have been violated by a subject of state authority during the exercising of authorized management functions. Administrative courts also consider cases when a subject of authority files a claim against an individual or an entity, if such dispute has a public and legal nature. Administrative cases include inter alia disputes with bodies of the State Tax Administration during a taxpayer’s appeal against tax notifications and decisions, disputes regarding assignment, calculation and payment of benefits, disputes against decisions, actions or inaction on the part of local councils regarding the granting of land plots to individuals or entities, disputes arising from legal relationships in connection with election procedures or referendums, etc. Procedural law sets certain restrictions on the settlement of disputes by administrative courts, and their settlement comes under the jurisdiction of other courts. Thus, administrative courts have no jurisdiction in:

— public legal cases that come under the jurisdiction of the Constitutional Court of Ukraine;

— cases that must be considered in the order of criminal proceedings;

— cases on imposing administrative penalties;

— cases on relationships that refer to the internal activity or exclusive competence of a union of citizens according to the law or its charter (regulation).

General courts consider all other cases where an individual is involved, as well as cases apart from those cases that fall within the jurisdiction of other courts. General courts consider disputes arising from civil, housing, land, family, labor relations, cases on establishment of legal facts, cases on recognition and enforcement of decisions of foreign courts, etc. The system of general courts is the most extensive (the courts are established in districts, city districts, and towns), and in this connection some cases within administrative jurisdiction are settled in general courts as administrative courts of first instance. This approach is considered justified as district administrative courts include districts and are usually situated in regional centers.

The Constitutional Court of Ukraine is an independent body in the court system that is applied for ensuring compliance with laws and other normative acts of legislative and executive powers to the Constitution of Ukraine, protection of constitutional rights and freedoms of the person. The Constitutional Court of Ukraine adopts decisions and verifies whether laws and other legal acts of the Verkhovna Rada (Parliament) of Ukraine, the President of Ukraine, the Cabinet of Ministers of Ukraine, the Verkhovna Rada of the Autonomous Republic of Crimea, as well as international treaties are consistent with the Constitution of Ukraine, interprets the Constitution and the laws of Ukraine, etc. The laws of Ukraine, which define the powers of courts during their consideration of certain categories of cases or powers, often become the subject of consideration by the Constitutional Court of Ukraine. For example, the Constitutional Court of Ukraine has interpreted the Constitution and laws, according to which certain categories of social and land disputes should be considered by administrative courts, and the Supreme Court of Ukraine may not act as court of cassation, which resulted in a change by legislators of its powers. Interpretations were given of the laws on jurisdiction of cases, in which acts, actions or negligence of a prosecutor, investigator, investigative bodies regarding statements and reports concerning committed crimes or crimes being prepared are disputed.

The system of courts of general jurisdiction has four instances. Local courts are courts of first instance and are the most numerous. Courts of first instance decide on the merits of a case and, therefore, are entitled to establish factual circumstances of a case by examining evidence collected in the case in question according to their own inner convictions. Judgments of local courts usually enter into effect after expiry of the term for their appeal or after review by the court of appeal, if they are not canceled or not altered in accordance with the results of such a review.

Courts of appeal are courts of second instance. The authority of courts of appeal depends on specific court specialization and categories of cases. According to the general rule courts of appeal review a case and are also vested with authority to examine evidence and accept further evidence, if such evidence was not submitted by a party to the court of first instance due to a reasonable excuse. A  judgment made by the court of appeal enters into effect upon its proclamation.

The respective higher courts are those of further instance, and they reconsider cases in cassation proceedings. The peculiarity of conside- ration of a case by the courts of cassation is that they only consider correct application of material and procedural law by lower level courts and are not authorized to collect new evidence or evaluate collected evidence in a case. If the court of cassation decides that there was not enough evidence collected by the courts regarding factual circumstances, the case is transferred to the local court for review on its merits. The court of cassation also gives binding instructions regarding what factual circumstances the court must find at a new trial. The decision of the court of cassation comes into force on its proclamation.

The final and the highest instance in the system of courts of general jurisdiction is the Supreme Court of Ukraine. It is vested with the powers to review judgments in the order of exceptional proceedings. In particular, the Supreme Court of Ukraine reviews cases on civil, criminal, administrative and economic procedure, such as:

— cases on unequal application by the court (courts) of cassation of material law in similar legal relationships in the order stipulated by procedural law;

— cases where the violation of international obligations during consi- deration of a case by a Ukrainian court is determined by an international judicial institution, the jurisdiction of which is recognized by Ukraine.

Application for review of cassation courts cases should be brought to the Supreme Court of Ukraine within three months from the day the relevant resolution was passed.

Within the framework of the judicial reform in Ukraine the On Securing the Right to Fair Trial Act of Ukraine was adopted on 12 February 2015. Particularly, the provisions of the Act are focused on increasing the status of the Supreme Court of Ukraine in the court system. Henceforth, the Supreme Court of Ukraine is empowered to reconsider the judgments of the cassation courts in case of unequal application of procedural law as well as their discrepancy with the conclusion on application of substantial law in similar legal relations given in the Decree of the Supreme Court of Ukraine.   

From now on, it is possible to file an application to reconsider judgments to the Supreme Court of Ukraine, and the issue of permitting a certain case to be reconsidered is directly solved by the Supreme Court of Ukraine.

Based on the results of case reconsideration the Supreme Court of Ukraine, determining its unlawfulness, exercises the right to cancel it and to pass a new judgment, or uphold a judgment of the previous instance that was cancelled mistakenly. In some cases, the Supreme Court of Ukraine enjoys the right to send the case to the court that passed the judgment being appealed against. Currently, the acting procedural law of Ukraine stipulates that the judgments of the Supreme Court of Ukraine regarding the correct application of this or that rule of law are binding for all members of social relationships — not only for the parties but for all state bodies, including the judges who apply this rule. In addition to this, the court enjoys the right to distance from the legal opinion given in the conclusions of the Supreme Court of Ukraine with providing the respective reasons.

The judicial reform process is currently being advanced in Ukraine aimed at improving the provisions of the Constitution of Ukraine. In particular, the requirements for appointment as a judge are increased, the invio- lability of judges is limited; furthermore, the reform provides for the establishment of a sole body, independent from political influence and responsible for the appointment, career and dismissal of judges.