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Legal news in Ukraine: New Laws came into force, Supreme Court’s decision, transfer of judges to local courts, representative of the prosecutor's office in Eurojust, changes to the rules of crossing the state border, appointment to the prosecutor's office

25.08.2018 / 09:30
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Legal news in Ukraine: New Laws came into force, Supreme Court’s decision, transfer of judges to local courts, representative of the prosecutor's office in Eurojust, changes to the rules of crossing the state border, appointment to the prosecutor's office

New Laws of Ukraine came into force

On August 2, 2018, the Law on Amendments to the Law of Ukraine «On the State Budget of Ukraine for 2018» entered into force.

The law provides that the budget program «Support for the introduction of the electricity market» is renamed «State support of coal-mining enterprises for the partial covering of expenses on the cost of finished commodity coal products».

Thus, 1.4 billion UAH will be directed to state support of coal-mining enterprises – to cover part of the cost of finished product coal products. The funds of this budget program will be directed also to repay the salary debt to the miners.

The law also states that the source of funding for this program is now confiscated funds and proceeds from the sale of property confiscated by a court decision for committing corruption and corruption-related offenses.

Also, on August 22, the Law of Ukraine «On Amendments to the Laws of Ukraine Concerning Solving Some Issues of Debts of Enterprises of the Defense Industry Complex – Participants of the State Concern «Ukroboronprom» against the Aggressor State and/or the State-Occupant and ensuring their Sustainable Development» came into force.

The law states that in Ukraine the decisions of foreign courts in cases concerning collection of debts from the enterprise of the defense-industrial complex, included in the list of state-owned objects of strategic importance to the state's economy and security, can not be recognized and executed in favor of an aggressor state legal entity and/or an invading state or a legal entity with foreign investments or a foreign enterprise of the aggressor state.

The document also provides for the suspension of already opened and the prohibition of the opening of new enforcement proceedings and measures for the enforcement of decisions to recover arrears from such enterprises. There is also a ban on conducting a bankruptcy case.

The Cabinet of Ministers of Ukraine should within a month to bring its normative legal acts in compliance with this Law.

Supreme Court’s decision in the matter of protecting cash against impairment in case of non-enforcement of a court decision

For almost nine years, the decision of the economic court about the collection from the city council in favor of a person unreasonably received funds was not executed. The order of the economic court was issued in 2007, and the person received the money in 2016.

At the same time, the Administrative Court of Appeal found illegal the inaction of the State Treasury Service of Ukraine regarding the non-execution of the economic court order and ordered execution of this order.

After receiving the funds, the person filed a lawsuit with the city council to collect three percent per annum of the overdue amount of debt and inflationary losses.

The court of first instance refused to satisfy the claim. The court noted that the legal relations arising from the execution of court decisions are regulated by the Law of Ukraine "On Enforcement Proceedings" and they can not be applied to the norms that provide for civil liability for non-fulfillment of a monetary obligation.

The Court of Appeal did not agree with this position and did not satisfy the claim. The appellate court changed the decision regarding the legal justification for the grounds for refusal of the claim.

The court noted that under Article 625 of the Civil Code of Ukraine, the accrual of inflationary losses on the amount of debt and three percent per annum is part of the monetary obligation and is a special measure of the debtor's liability for the delay in the monetary obligation. And one of the reasons for the emergence of an obligation is the infliction of property and moral harm to another person, presumed the presence of guilt.

The Court of Appeal drew attention to the fact that the ruling of the appellate administrative court established the presence of the fault of the State Treasury Service of Ukraine management regarding the failure to comply with the order of the economic court. Therefore, in connection with the absence of the city council fault in the delay of the monetary obligation, the claim of this person can not be satisfied.

The Supreme Court overturned the decision of the appellate court and transferred the case to a new appellate hearing.

The Collegium of Judges noted that according to the Supreme Court's decision of 16 May 2018 in case No. 686/2962/15-c, article 625 of the Civil Code defined general rules of liability for breach of any monetary obligation, regardless of the grounds for its occurrence. The requirements of this article apply to all types of monetary obligations, unless otherwise provided by the contract or special rules of law.

The Supreme Court noted that according to the decision of the economic court, the debtor is the city council, which did not comply with the court decision for 9 years. And unlawful inaction of the State Treasury Department of Ukraine (established by the decision of the Administrative Court of Appeal) on failure to comply with the order of the economic court can not justify the omission of the debtor and exclude the need to protect such funds from depreciation.

Also, the Supreme Court recalled that according to the practice of the ECtHR, public authorities can not invoke the lack of funds as a reason for not fulfilling their obligations to the case (KECHKO v. UKRAINE, No. 63134/00, § 26, ECHR, dated November 08, 2005). A delay in the execution of a judgment may, under certain circumstances, be justified, but not at the expense of narrowing the essence of the right protected by Article 6 of the European Convention (BAKALOV v. UKRAINE, No. 14201/02, § 33, ECHR, November 30, 2004).

The President signed Decrees on the transfer of judges to local courts

President of Ukraine Petro Poroshenko signed Decrees No. 228 and 229 dated August 20, 2018 on the transfer of judges to local courts.

In total, 22 judges will be transferred. Most judges will be transferred to Kyiv courts - Goloseevsky, Darnytsky, Desnyansky and Solomyansky district courts of Kyiv and courts of Donetsk oblast.

Judges will also be transferred to the courts of Vinnitsa, Zakarpattia, Zaporozhye, Lugansk, Poltava, Kharkiv, Kherson and Chernihiv regions.

The General Prosecutor’s Office sent his representative to Eurojust

The General Prosecutor’s Office of Ukraine for the first time sent a representative of the Office to the Office of the European Organization for Justice.

Myroslava Krasnoborova was sent to Eurojust as a Communications Prosecutor.

Her responsibilities will include facilitating the interaction of Ukraine law enforcement agencies with the competent authorities of the Eurojust members and strengthening cooperation with other organizations and departments located in the city of The Hague. In particular, with Europol, the European Judicial Network, the International Criminal Court, the International Court of Justice, the prosecutor’s offices of the Kingdom of the Netherlands. First of all – in the case of downgrading the passenger airplane MN17 Malaysian Airlines.

Coordination of such activities will be carried out by the Department of International Legal Cooperation of the General Prosecutor's Office of Ukraine.

The appointment of a national representative will allow promptly and effectively respond to the challenges that arise in the field of international counteraction to cross-border crime.

It should be noted that in 2016 the Prosecutor General of Ukraine Yuriy Lutsenko signed the Agreement on cooperation between Ukraine and Eurojust.

Eurojust is a European agency created to coordinate and increase the effectiveness of cooperation between the competent authorities of the European Union in criminal proceedings.

The agreement is aimed at strengthening cooperation between Ukraine and Eurojust in the fight against serious crimes, in particular organized crime and terrorism. Provisions of the agreement stipulate the sending of the national prosecutor to the headquarters of the institution in the city of The Hague (Kingdom of the Netherlands).

The government has made changes to the rules of crossing the state border

The Cabinet of Ministers of Ukraine introduced amendments to the rules of crossing the state border by citizens of Ukraine by its decision of August 22, 2018, No. 619.

Departure from Ukraine of citizens under the age of 16, accompanied by one of the parents or other persons authorized by one of the parents, is now also carried out in the case of presenting a statement on the existence of a debt for alimony – within 4 months. The reference should be issued by the body of the state executive service or a private executor.

Also, departure is allowed in case of temporary departure from Ukraine for a term up to one month in the case of presentation of a court decision or body, which defines the place of residence of the child with one of the parents who intends to leave with the child or who authorized other persons.

In addition, the trip is possible without a notarized consent of the second parent in the event of a temporary departure from Ukraine for a term up to one month and more than a child with a disability, a child suffering from the disease provided for in part five of Article 157 of the Family Code of Ukraine.

In this case, it is required to present the following documents or their copies (notarized):

a certificate issued by a state executive service or a private executor on the existence of debt for alimony payment (when the debt exceeds three months);

a document issued by a medical advisory commission of a health care institution (when the debt does not exceed four months).

In the case of a temporary departure from Ukraine, border guards check in the Uniform Register of Debtors information about the parent who intends to leave with the child. If there is such information in the register, departure is prohibited.

The employee submits a reasoned written decision indicating the reasons for the refusal, one copy of which is issued to a person who is denied the crossing of the border.

If it is impossible to check information in the Register, then this is not a reason for refusal of the person in the crossing of the border.

This resolution will come into force on August 28, 2018.

The Prosecutor’s Office of Volyn Oblast has a new head

The Prosecutor’s Office of the Volyn Oblast was headed by Viktor Shvidky, who previously held the position of first deputy prosecutor of the oblast.

Chief Prosecutor of Ukraine Yuriy Lutsenko stressed that the priority of the prosecutor’s office in the region is to counter smuggling, because Volyn is a border region.

He emphasized that the new head of the prosecutor’s office should do everything to keep the situation under control in the field of amber extraction and to stop the illegal deforestation, and, in view of the upcoming elections, to do everything to keep the law enforcement agencies out of politics.

Let’s add, the former head of the Prosecutor’s Office of the Volyn region Maxim Kyrychuk now heads the prosecutor’s office of Kyiv region

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