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Partner, ANTIKA Law Firm
Partner, ANTIKA Law Firm, PhD in Law
General Overview of Ukrainian Judicial System
The principles of ensuring justice are declared in the Constitution of Ukraine. The main ones are ensuring justice exclusively via the courts and the 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 whole territory of Ukraine.
Today, Ukraine still finds itself on the edge of judicial reform, whose main purpose is to increase the efficiency of the judicial process, combat corruption in a courtroom and create an independent judicial system.
Ukraine has a three-level system of justice. Those are local courts, courts of appeal and the Supreme Court. The latter is the highest court in the Ukrainian judicial system and not only does it deliver justice, but it also performs the important task of ensuring the 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, for which cause they are endowed with the right to establish factual findings of the case by assessment of evidence collected in the case at its own inner conviction. Judgements of local courts, as a rule, come into force after the termination of the term for the appeal or after review of the case 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 to the dispute and its nature and is governed, first and foremost, by the relevant codes of the 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 an economic activity from corporate relations, of a transaction on share 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 against 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, with the exception of 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 a court and the category of a case. As a general rule, the court of appeal reconsiders a case on the evidence it has 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 a 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 of Ukraine, which began its work 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 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; analyze judicial statistics and study judicial practice, generalize court practice.
During the first year of its operation, the Supreme Court removed a lot of impracticalities, which existed in court practice and formed hundreds of legal opinions aimed at ensuring the unity of court practice in Ukraine and the predictability of court decisions.
The Law of Ukraine On Judicial System and Status of Judges provides for the functioning in Ukraine of High specialized courts. On 5 September 2019, the High Anti-Corruption Court of Ukraine began its operations. Its jurisdiction takes in 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 as income for the state. The High Anti-Corruption Court of Ukraine has The Chamber of Appeal, which is authorized to consider claims against the decisions of this court.
On 29 September 2017, the High Court of Intellectual Property was formed by a decree issued by the President of Ukraine. Now, the competition to occupy judicial vacancies of this court and The Chamber of Appeal, which will function as part of it, is under way. According to the intentions 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 of Ukraine, issues proposed for adoption at an all-Ukrainian referendum at the initiative of the people, carries out 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 adopted in December 2017, improvements to the way the court runs continued. Namely, amendments were adopted aimed at preventing abuse of procedural rights by parties, providing prerequisites for unloading the court of cassation with cases of insignificant complexity, giving legal entities the opportunity to participate in a court case through their employees, etc.
Furthermore, on 21 October 2019, Ukraine’s New Bankruptcy Code came into effect. Legislators systematized the rules on the procedure for the recovery of debtors’ solvency and their bankruptcy. Since the time that this Code came into effect, 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, gradually implements 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 proceedings, etc.
The participants in cases were given a real opportunity to use the so-called “electronic” evidence in the trial after the rules of procedure for their submission and examination by the court appeared in procedural law.
There are many cases of use of the right to take part in a case via videoconference mode, which enables court hearings to be held in the event of the physical absence of a party to a case in a courtroom.
It is also appropriate to note the general trends associated with changing the role of the court in litigation. In particular, courts are increasingly using the status of “arbitrator”, placing the responsibility on the parties themselves for committing or failing to act, 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 as to its effectiveness, validity and enforceability in favor of its validity, validity and enforceability.
Overall, it can be said that changes made to the Ukrainian judicial system have improved the mechanism of administration of justice and are consistent with the aim of ensuring effective protection of any violated right.