Litigation

Is Ball in Your Court? 

To be in a position when it is up to you to make the next decision or step while you are involved in litigation, it is necessary at least to be aware of certain details of how it works. Not trying to cover the whole scope of the matter we just want to describe several examples from the court practice.

European Court for Human Rights Judgments for Ukrainian Courts. Is it possible to use judgments of the European Court for Human Rights (the “ECHR”) which are not officially translated into Ukrainian and what publication is deemed official? Somebody may say that such question seems weird but the ‘rule of formalities’ in Ukraine can produce even more awful ‘monsters’.    

Ukrainian law does not envisage a provision what publication of the ECHR judgment is official.

The ECHR judgments in English and French, the official languages of the court, may be found on the ECHR’s website (http://www.echr.coe.int), where there is a special search system, HUDOS (http://www.echr.coe.int/ECHR/EN/hudos). Translations of some ECHR’s judgments are available also on the website of the Ministry of Justice of Ukraine and on the website of the Council of Europe Office in Ukraine (http://www.coe.kiev.ua).

Possibility to apply the practice (judgments) of the European Court for Human Rights in Ukrainian courts is not conditioned on whether there is an official translation of judgments into Ukrainian or not.

 

Commercial Court Procedure

Injunction. Court injunction measures have to be proportionate and adequate to the claims submitted by the plaintiff. The court has to issue an injunction only in case of the reasonable assumption that its absence may cause a negative impact on the further enforcement of the judgment or make such enforcement impossible. An injunction cannot be aimed at preventing possible infringement of the plaintiff’s rights in future and should not be de facto court’s finding on the merits of the case before the judgment is made. For example, if the plaintiff claims the ownership title to the premises, it may not expect that the court issues an injunction prohibiting the defendant to use these premises, the other persons to supply the premises with electricity, water etc.

When facts proved in one case are admitted without proving in other case? The facts which are deemed proven by the court’s judgment in one case are not proven again in other cases with the same parties involved.

When a ruling does become valid? A ruling, one of two kinds of commercial (economic) court decisions (along with the judgment) dealing with procedural matters (e.g. injunction measures) rather than merits of a case, becomes valid immediately after its issuance.

 

Civil Court Procedure

Form and content of a complaint (statement of claim). The complaint filed with the court shall be in written form. Its content shall comply with the requirements of the Civil Procedural Code of Ukraine, including the following: the complaint has to include not only the list of claims, but also the grounds for these claims, the evidence proven the grounds. The submission of evidence is possible during the court hearings. Thus, the court cannot return the complaint to the claimant due to procedural errors at submission stage when the evidence indicated in the complaint is not attached to it.

Audio recording of the process. The parties to the court case and other persons present at the open court hearing may take a written note and also use portable audio technical devices without need to apply for a special court permit. Only upon a special court’s ruling and consent of the parties to the case, photographing, videotaping, audio recording with fixed equipment, and TV or radio broadcasting of court hearings are possible.

The tendency of annual increases of the number of cases brought to local and appellate courts seems to be stopped. In 2010, there were 7.8 million cases brought comparing with 2011 when 9.4 million cases were brought; and 2012 when only 5.7 million cases were brought. The last significant decrease in the number of cases was in 2009 (from 10.3 million cases in the precedent year to 6.7 million cases) due to the changes in procedure of deciding the minor offences cases (mostly related to traffic incidents).