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Partner, ANTIKA Law Firm
Partner, ANTIKA Law Firm
General Overview of Ukraine’s Judicial System
The principles of ensuring justice are declared in the Constitution of Ukraine. The main ones are ensuring justice exclusively by courts and inadmissibility of delegating functions of courts, as well as of 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, the main purpose of which is to raise the efficiency of the judicial process, combating corruption in a courtroom 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 of Ukraine, 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. Courts of first instance 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. The judgements of local courts, as a rule, come into force after termination of the term for the appeal or after review of the case by a court of appeal, if a judgment 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 omissions, 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 the requirements of the appeal. 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 of 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 15 December 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 in order to ensure the uniform application of the rules of law by courts; acts 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, generalize court practice.
The Law of Ukraine On the Judicial System and Status of Judges provides for the High specialized courts functioning in Ukraine. On 5 September 2019 the High Anti-Corruption Court of Ukraine began to operate. The jurisdiction of which is the consideration of 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 has 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 now under way. 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 proposed for adoption at an all-Ukrainian referendum at the initiative of people, 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.
After procedural legislation amendments, which were adopted on December 2017, improvements to it have not stopped. Amendments were adopted aimed at preventing abuse of procedural rights by the parties, providing prerequisites for unloading the court of cassation with cases of insignificant complexity, giving legal entities the opportunity to participate in the court case through their employees, etc.
Furthermore, on 21 October 2019, the New Bankruptcy Code of Ukraine came into effect, in which legislators systematized the rules on the procedure for the recovery of debtors’ solvency and their bankruptcy. Following the coming into force of this Code, bankruptcy proceedings against individuals in Ukraine have emerged.
Legislative changes have, in many aspects, procedurally altered the exercise of procedural rights and the activities of the court. In particular, the implementation of “e-justice” is still under way. The practice of filing claims exclusively in electronic form using an electronic-digital signature has appeared. The Council of Judges of Ukraine, together with the State Judicial Administration of Ukraine, is gradually implementing the Single Judicial Information and Telecommunication System in courts of all instances and jurisdictions for the submission of procedural documents and evidence in electronic form, summons and communications to the official e-mail of participants in the proceedings, etc.
The participants of the case were given a real opportunity to use so-called “electronic” evidence in the trial after the rules of procedure for their submission and examination by the court appeared in the procedural law.
There are many cases of use of the right to participate in a case in videoconference mode, which enables the holding of court hearings in the event of the physical absence of a party to the case in the courtroom. This way of participating in litigation became especially relevant after the introduction of quarantine restrictions throughout the country. The participants of cases were even given the opportunity to participate in the meeting online using their own smartphone, subject to authorization on a special Internet platform through an electronic digital signature.
It is also appropriate to note the general trends associated with the change in the role of courts in litigation. 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.
On the other hand, there is a strengthening of the “arbitration” approach of state courts. Among other things, the Grand Chamber of the Supreme Court has declared the principle of immunity and autonomy of the arbitration agreement, by which the court must interpret any inaccuracies in the text of the arbitration agreement and consider doubts with regard to its effectiveness, validity and enforceability in favor of its effectiveness, validity and enforceability.
It can be stated 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 violated right.