Are Ukrainians Really Able to Properly Choose the Court for Litigation without Competent Legal Advice?
Dmytro Mitriushin, managing partner of LEXLIGA Law Firm
Turbulent social and political life in Ukraine brings about increased legal awareness among population. For this reason, recourse to the court for protection of rights, freedoms and legitimate interests is a usual practice for ordinary Ukrainian citizens. However, given the large variety of legal relationships and a sufficiently complicated structure of the national judicial system formed on the principles of territoriality, instantiality and specialization, it appears quite hard to figure out what court jurisdiction you need, i. e. to determine that particular echelon of the judicial system and the appropriate court legally authorized to mete out justice in your own individual situation, dispute, or in breach of your rights.
Precise determination of the right jurisdiction and venue for a particular case is of much practical importance and closely connected with the judicial administration (distribution of court cases between judicial power branches). This is what a court procedure starts with.
Any mistakes made at this stage can lead to the claim being dismissed and, as a consequence, result in:
1) loss of the paid amount of court fees (which have significantly increased since last year);
2) delay of 1 to 3 months (the time needed for processing case materials by the court registry and the judge) or even longer if the fact of incorrectly determined jurisdiction is revealed by the court of appeal or cessation, which leads to reversal of all court judgments delivered in the case;
3) need to have original copies of written documents returned to you (if the claimant has entered them into the case file) for submitting the claim to another court;
4) expiration of written certificates and other documents that have been collected as evidence, etc.
This problem reflects adversely on the access to justice, rooted in the fact that not only well-educated and legally aware Ukrainians, but sometimes even professional lawyers, including judges, find it difficult to puzzle out the rules for dividing cases between diverse branches of the judicial system.
Let’s take for example the delimitation between civil and administrative jurisdictions. In civil law proceedings, the courts consider cases on the protection of violated, unrecognized or disputed rights, freedoms and interests arising out of civil, housing, land, family, labour relations (Art. 15 of the Civil Procedure Code of Ukraine), whereas the jurisdiction of administrative courts covers legal relations arising in connection with the performance of public administration functions by a public authority, agency or officer (Art. 17 of the Code of Administrative Legal Proceedings of Ukraine). The above legislative provisions only generally outline how the jurisdictions must be delineated, so the critical role here is played by legal precedents in their application. As suggested by the analysis of some resolutions of the Supreme Court of Ukraine, we can work out some clarifications for proper choice of jurisdiction, broken down by particular categories of cases, such as:
1) housing disputes (relating to privatization of housing, registration or de-registration of persons in need of improved housing conditions, de-registration of persons at their place of residence in case of disputes, obligations of a central government or local self-government authority to make all necessary arrangements for maintaining residential buildings in a proper condition, etc.) where a public authority, agency or officer acts as a defendant, are considered in civil proceedings because the subject matter of such disputes is the right to housing (civil right). This has been concluded by the Supreme Court of Ukraine in its Resolutions on cases No. 6-2129цс15 dd. 16 December 2015 and No. 6-14цс16 dd. 2 March 2016;
2) challenging decisions made by public authorities, agencies or officers regarding the transfer of land plots into ownership or lease, the legality of purchasing a disputable land plot by an individual or a legal entity, must fall within the civil (commercial) jurisdiction because such disputes are about the right to land, and, pursuant to Art. 2 and 5 of the Land Code of Ukraine, a public authority, agency or officer in exercising powers of a land owner is considered an equal party to land (civil) relations. This legal opinion has been enshrined by the Supreme Court of Ukraine in its Resolutions on cases No. 372/1348/14-а dd. 22 April 2016 and No. 21-308а14 dd. 5 January 2015;
3) legal relations associated with appointments and dismissals for administrative posts in state-run institutions, companies, even where the conclusion of an employment contract is preceded by a decision made by a public officer to appoint a person of concern to the respective position, do not pertain to public service activities, therefore, any disputes arising on these grounds are subject to civil proceedings. The mere fact of making an appointment decision by a public officer does not produce legal relations connected with public service activities. This approach to finding jurisdiction has been formulated by the Supreme Court of Ukraine in its Resolutions on cases No. 21-588а15 dd. 23 June 2015 and No. 802/3892/14 dd. 18 May 2016.
As can be seen from the above, without competent legal assistance in dealing with litigation issues, most people face impeded access to justice, before they even resort to the courts, in figuring out what jurisdiction their legal dispute does fall within. A mistake made at this stage inevitably results in financial losses, as well as in the waste of such non-renewable resource as time.