THREE IMPORTANT REQUESTS TO THE NEW SUPREME COURT OF UKRAINE

Last Friday I was honored to speak at the panel of VIth Judicial Forum of the Ukrainian Bar Association focused at the role of the reformed/recharged Supreme Court of Ukraine. In lieu of the mandate and current practice of the Business Ombudsman Council, I called for the new composition of the Supreme Court of Ukraine to attend to the following three brief (yet quite strategic) requests, namely:

1. Please explain and systematize procedure governing enforcement at the part of the state authorities of the court decision rendering decisions of such bodies being illicit (illegal, void). Indeed, some of our complainants face difficulties while seeking enforcement of such court decisions without being able to produce a so-called “enforcement document” or “writ” – i.e. document typically issued in course of enforcement procedure in Ukraine. Courts, however, deny issuance of the “enforcement documents” arguing [quite legitimately] that their decisions in these cases do not merit any further [procedural] clarifications. Hence, there is a pressing need to avoid absurd situations when tax notifications-decisions are canceled but tax debt remains formally outstanding; or ministerial order is rescinded but the respective sanction is not lifted, etc.;
2. Kindly systematize and properly bring to the attention of the state authorities (to ensure that the latter are obliged to fulfil rather than tempted to ignore) legal opinions (conclusions) set forth in the various resolutions of the Supreme Court of Ukraine adopted in the cases adjudicating lack of homogeneous application of substantive (material) rules by the courts of cassation;

AND LAST BUT NOT LEAST

3. Kindly ensure consistency of the legal position of the Supreme Court of Ukraine while interpreting identical provisions of the Ukrainian substantive (material) law. Thus, comprehensive inventorying is required to ascertain instances when legal position of the Supreme Court of Ukraine (regarding the same category of cases and vis-à-vis the same substantive provision) might considerably differ. For example, by virtue of the Resolution of the Supreme Court of Ukraine, dated January 26, 2016, legitimate taxpayers were (de facto) held liable for ramifications stemming from the fraudulent/illicit nature of transactions carried out by their counterparties with their contractual parties. Yet, this opinion is magnificently different to the one set forth in the Resolution of the Supreme Court of Ukraine, dated March 5, 2012.