Ukrainian courts violate the principle of finality of judgments that have entered into force. How can businesses assert their rights in case of such a violation? The law firm “Asters” adviser Anton Sintsov and “Asters” lawyer Roman Gerasimenko studied this issue exclusively for the Mind.
One of the key internationally admitted principles of justice is the principle of finality of a court judgment that has entered into force – res judicata. In short, this principle stipulates that no party has the right to seek a review of the final and binding decision just for a case revision and a new decision issuing.
The European approach
Res judicata (a solved case) is an abbreviation of the phrase “Res judicata pro veritate habetur!” (In Latin – “Court decision is admitted as the truth“), which means the decision invariability and, above all, the need to directly ensure its implementation.
The principle of finality of judgments is part of a broader principle, which is the principle of legal certainty. Among other things, the latter includes such categories as unambiguity, clarity and accuracy of legislation.
This principle of res judicata is of fundamental importance at the European level, which is confirmed by the numerous cases of the European Court of Human Rights. The ECHR in its judgments (particularly, in “Ustymenko v. Ukraine”) emphasises that the right to a fair trial must be interpreted in the context of the principle of finality of judgments. According to it, no party may seek the final and binding judgment review only for case revision and rendering a new decision.
Res judicata in Ukraine
The principle of finality of judgments is also implemented in Ukrainian legislation and actively applied by Ukrainian courts in resolving disputes.
The most notable is the cassation authority. The Supreme Court has repeatedly managed to stop the parties’ attempts to review court decisions that have entered into force via a similar lawsuit.
For example, in one administrative case, the company tried to re-appeal the same decision of the subject of authority. However, the court discovered this fact and closed the proceedings because of the actual court decision on the same dispute between the same parties.
In another case, the Supreme Court, considering a land dispute, relied on judicata principle and emphasized that the applicant’s right to lease the land was confirmed by a Commercial Court judgment which had already entered into force and established the company’s right to rent.
As a part of the commercial case on invalidation of the assignment agreement, the Supreme Court returned the case to the court of appeal, which had not assessed the circumstances of court decisions on the other cases with the same subject and grounds for claims properly.
“Exceptions” to the rules
In practice, there are many cases when representatives of the Ukrainian Themis ignore res judicata and despite a court decision that has entered into force, review cases and made opposite decisions.
Among the prominent examples is the case of appealing the subsoil usage permit. Thus, in 2019, the Supreme Court, based on the results of the case, concluded that the special permit was issued to the company lawfully and in compliance with the requirements of special regulations which prescribe the permissions’ issuing procedure.
That is, given the res judicata, the Supreme Court’s 2019 decision is final and not subject to review.
At the same time, in 2020, the first instance court ignored the Supreme Court decision and concluded that the company received a subsoil use permit with violations of the requirements of special legislation. Thus, the first instance court “reviewed” the Supreme Court judgment. And it did not take into account that in another case framework the Court of Cassation had already considered the legality of granting the company a special subsoil usage permission and coped with the law applicable in disputed legal relations.
On the way to improvement
As long as Ukrainian courts continue to commit blatant and flagrant violations of the fundamental principles of justice, the need for judicial reform will remain to be discussed actively. At the same time, trust in the judiciary is formed not only by the reform of the judicial system but via the quality of justice and administration improvement according to the European standards.
However, business representatives involved in disputes have to take into account the ambiguous approaches of courts to the principle of finality of judgment application. Even if there are judgments that establish certain circumstances in favour of business, legal advisers should carefully develop the further strategy to protect business rights. Besides, if necessary, they should be ready to initiate a review of obviously illegal and unfounded judgments, in particular by appealing to the European Court of Human Rights.