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- Maksym Korchahin
Ph.D. (Law), Partner, ANTIKA Law Firm
- Alexandra Fedorenko
Partner, ANTIKA Law Firm
Ukrainian Judicial System at Current Stage
The principles of ensuring justice are declared in the Constitution of Ukraine. The main ones are ensuring justice exclusively through courts and the inadmissibility of delegating functions of courts, as well as appropriation of their functions by other bodies or officials; extension of the jurisdiction of courts for any legal dispute and any criminal charge; the binding nature of judicial decisions on the entire territory of Ukraine.
Today, Ukraine still finds itself on the edge of judicial reform, whose main purpose is to raise the efficiency of the judicial process, combatting corruption in courtrooms and actually creating an independent judicial system.
Ukraine has a three-level system of justice. Those are local courts, courts of appeal and the Supreme Court, which is the highest court of Ukraine’s judicial system and not only delivering justice but also performing an important task of ensuring uniform application of the rules of law by courts of different jurisdictions.
Local courts of first instance are the most numerous. These courts decide on the merits of a case, as they are endowed with the right to establish factual findings of a case via assessment of evidence collected in a case at their own inner conviction. Judgements made by local courts, as a rule, come into force after termination of the term for the appeal or after review of the case in question by a court of appeal if a judgement was not canceled or modified as a result of the review.
Consideration of a particular case by a court depends on the subject matter in a dispute and its nature and is governed, first and foremost, by the relevant codes of procedure (Civil Code of Procedure of Ukraine (2004), Economic Code of Procedure of Ukraine (1991), Code of Administrative Justice of Ukraine (2005), Code of Ukraine on Administrative Offenses (1984), Criminal Code of Procedure of Ukraine (2012), with further amendments and additions.
Economic courts generally resolve disputes arising from the conduct of economic activity from corporate relations, of a transaction on stakes, securities, rights of ownership or other property rights, cases on appeal against decisions of arbitration courts and other disputes between business entities, cases on the bankruptcy of individuals and legal entities.
The jurisdiction of administrative courts extends to cases on public law disputes, particularly disputes involving individuals or legal entities with subjects of authority regarding the appeal of its decisions (legal acts or individual acts), acts or missions, etc.
Local general courts consider civil, criminal, some administrative cases, cases of administrative infractions. Cases arising from civil, land, labor, family, residential and other legal relations are considered in civil proceedings, except for cases which are considered in the procedure of other legal proceedings. The system of general courts is the most ramified, as they can be created in regions, cities, city districts.
Courts of second instance are courts of appeal formed in appeal districts. The functions of courts of appeal depend on the specialization of the court and the category of the case in question. As a general rule, the court of appeal reconsiders the case on the evidence it contains and additional evidence and verifies the legality and sufficiency of the decision of the court of first instance within the framework of the arguments and requirements of the appeal in question. The decision of the court of appeal comes into force from the moment of its proclamation.
The General Court of Appeal, whose jurisdiction extends to the City of Kyiv, deals with cases on the recognition and granting of permission to execute decisions of international commercial arbitration in Ukraine.
The last and highest instance in the system of courts is the Supreme Court, which started working on December 15, 2017, and is endowed with the right to review court decisions in the order of cassation proceedings. The Supreme Court consists of the Grand Chamber of the Supreme Court, the Administrative Court of Cassation, the Economic Court of Cassation, the Criminal Court of Cassation, the Civil Court of Cassation.
The Grand Chamber of the Supreme Court, in cases determined by law, reviews court decisions in a cassation order so as to ensure the uniform application of the rules of law by courts; act as a court of appellate instance in cases considered by the Supreme Court as a court of first instance; analyzes judicial statistics and studies judicial practice, generalizes court practice.
The Supreme Court continues to address the gaps which previously existed in court practice, to adopt legal conclusions aimed at ensuring the uniformity of court practice in Ukraine and the predictability of court decisions.
The Law of Ukraine On the Judicial System and Status of Judges provides High specialized courts to function in Ukraine. The High Anti-Corruption Court of Ukraine began to operate on 5 September 2019. Its jurisdiction is to consider criminal cases related to corruption crimes investigated by the National Anti-Corruption Bureau of Ukraine, as well as cases of recognition of unjustified assets and their recovery for the benefit of state income. The High Anti-Corruption Court of Ukraine contains the Chamber of Appeal, which is authorized to consider claims against a decision of this court.
The High Court of Intellectual Property was formed on 29 September 2017 by a decree issued by the President of Ukraine. The competition for judicial vacancies of this court and The Chamber of Appeal, which will function as part of it, is under way now. According to the intention of lawmakers, this court will hear cases in disputes over intellectual property, rights to such objects and protection against unfair competition.
In Ukraine, the Constitutional Court of Ukraine acts as a body of constitutional jurisdiction, which ensures the supremacy of the Constitution of Ukraine, decides on compliance with the norms of the Constitution of Ukraine, laws, other acts, international treaties to which Ukraine is a party, issues proposals for adoption at an all-Ukrainian referendum at the initiative of the public, provides official interpretation of the Constitution of Ukraine and carries out certain other functions. The Constitutional Court of Ukraine has a Grand Chamber, two senates and six colleges.
Ukrainian courts continue to develop the practice of application of the Bankruptcy Code of Ukraine which came into effect on 21 October 2019. It is worth recalling that by adopting this Code legislators systematized the rules on the procedure for the recovery of debtors’ solvency and their bankruptcy and also introduced the possibility of the implementation of bankruptcy proceedings against individuals.
The introduction of “e-justice” is still under way. In particular, the Supreme Council of Justice of Ukraine approved the Regulation on the procedure of the functioning of separate sub-systems of the Unified Judicial Information and Telecommunication System. This Regulation provides for the regulation of the procedure for the functioning of the sub-system called the “electronic court” which enables the creation and submission in electronic form of procedural and other documents to the court, other authorities and institutions in the justice system, as well as to obtain the information about the status and results of consideration of such documents. Access to the electronic court is provided for the participants in the event that they have an electronic signature.
In addition, on 14 June 2022 the State Judicial Administration of Ukraine, together with the Ministry of Justice of Ukraine, approved the Regulation on the Unified State Register of Executive Documents. This Regulation provides for the regulation of the procedure of electronic record of executive documents, their automatic transfer to the executive service (bailiffs service) in electronic form, which may well increase the effectiveness of execution of court decisions. The established mechanisms will begin to work immediately after the development and implementation of the essential software for the functioning of the Unified State Register of the Executive Documents.
The forced change of residence of the participants in a case in connection with the military aggression of the russian federation led to an increase in the use of the right to participate in a case via videoconference, which enables the holding of court hearings in the physical absence of participant in the case in a court room. The participants in a case increasingly participate in hearings online using their own laptops or even smartphones, subject to their authorization on a special Internet platform using an electronic signature.
General trends associated with changes of the role of courts in litigation are continuing in Ukraine. In particular, courts are increasingly using the status of “arbitrator”, placing the responsibility for committing, or failing to act, on the parties themselves, including in matters of evidence.
Moreover, the Law of Ukraine On Mediation, which came into force on 15 December 2021 expanded the possibilities for settlement between the parties. Previously, procedural legislation provided only for the procedure for dispute settlement with the participation of a judge, under which the court acted as an arbitrator, putting forward to the parties possible ways of reaching a peaceful settlement. From now, the parties may involve a certified mediator for dispute settlement. The court proceedings in a court case are suspended for the period of mediation. The parties can conclude a settlement agreement, submit it to the court for approval and closing of the proceedings on the basis of the results of mediation.
It can be said in overall terms that changes in the Ukrainian judicial system improve the mechanism of administration of justice and are consistent with the aim of ensuring effective protection of any right that may have been violated.