Litigation in times of war

Russian military aggression disrupted a vast number of legal processes in Ukraine. The Ukrainian judicial system has also been severely affected by the war. However, as justice is crucial for a country even in times of war, the Ukrainian judicial system managed to adapt to new significant challenges and survive the battle against anarchy and legal chaos that often come along with more severe war atrocities.

In terms of the legal battlefield, martial law was introduced by the Decree of the President of Ukraine #64/2022, dated February 24, 2022, and later extended a number of times. During the period of martial law, the courts' functioning is also governed by the Law of Ukraine On the Legal Regime of Martial Law #389-VIII, dated May 12, 2015.

Formally, the mentioned law provides that introduction of martial law does not affect the Ukrainian judicial system. The law provides that justice in the territory where martial law has been imposed (currently it is the whole territory of Ukraine) shall be administered only by courts. Shortening or speeding up any form of judicial proceedings is prohibited under the law as well as the creation of extraordinary or special courts and limitation of the powers of the courts.

The law also provides that in case it is impossible to administer justice by the courts operating in the territory where martial law has been imposed, the relevant regulations may be introduced to change the territorial jurisdiction of court cases considered in these courts, or the location of the courts may be changed in accordance with the procedure established by law.

In March 2022, the Council of Judges of Ukraine, the highest judicial self-government authority, produced guidelines on the work of courts during martial law (decision #10, dated March 14, 2022). In the relevant guidelines, the Council, inter alia, recommended that each court should determine the specifics of its work at the meeting of its judges. The courts were recommended to postpone or cancel court hearings and apply a reasonable approach to adherence to procedural terms depending on the security situation in the relevant region.

In cases with temporarily occupied cities, the Supreme Court changed the territorial jurisdiction for submission of the relevant claims so that the latter could be filed with the courts located in the territory controlled by the Ukrainian government.

Thankfully, Ukrainian military forces liberated significant parts of Ukrainian territory in the early spring of 2022. Towards the end of spring, courts began to resume work in the de-occupied territories of northern Ukraine. By that time, it began to seem that courts have somehow adapted to the current situation in Ukraine and developed more or less steady routine processes for the review of pending cases. Nevertheless, several dozens of courts in the occupied territories of eastern and southern Ukraine remain closed.

The courts generally followed the guidelines of the Council of Judges of Ukraine and, in fact, as many of our Ukrainian litigation colleagues may have witnessed, in many cases Ukrainian courts have been indeed favourable when it came to adherence to the procedural terms and presence at the court hearing by the parties to the cases. However, as usual, there is also another flip of the coin. Courts often disregard the procedural terms themselves even in cases where the parties are proactive and do their best to avoid any protractions.

The courts also started to apply a more efficient and proactive approach to delivering information to the litigation participants. This was critical and helpful especially at the beginning of the full-scale invasion, while the standard system for informing case participants (via post to their registered addresses) was unable to work properly due to the enormous amount of people and businesses who left their homes and offices in pursuit of safety. For instance, we witnessed cases where courts made follow-up calls to case participants after sending hard copies of the documents and a significant amount of court correspondence was carried out through emails.

That was also especially useful considering that immediately after the start of the Russian military aggression most of the state registries became non-accessible and the Unified State Register of Court Decisions was not an exclusion. Fortunately, access to this register had been restored in the first half of summer and it is now possible to check and review court decisions and rulings in order to monitor clients' cases as well as to review the recent court practice for general understanding, and to support arguments in specific cases.

Another positive trend that Ukrainian lawyers are now witnessing is much more widespread usage of video conference hearings. Considering difficulties parties may face due to travelling around Ukraine for the court hearings in times of war (apart from the apparent military-related risks, power outages and air raid sirens often make it difficult to stick to one's travel plans and at least somehow predict when you will be able to actually enter and exit the courtroom) courts often agree to allow parties to use video conference software. This positive practice initially emerged during the times of strict Covid-19 restrictions in Ukraine and proved to be extremely efficient in times of war.

Not all courts in Ukraine are that user-friendly and efficient. For instance, the notorious District Administrative Court of the City of Kyiv, famous for its tolerance of corruption and desire to illegally influence political processes in Ukraine by abusing its powers, has been predictably underperforming. However, the recent decision of the Ukrainian parliament further approved by the president Mr Zelenskyy (law # 2825-IX dated December 13, 2022) to liquidate the relevant court driven by the desire to put an end to the careers of the judges whose reputation was far from ideal delivered a positive message to the market. Although the long-awaited massive relaunch of the Ukrainian judicial system is rather unlikely to happen in the nearest future due to the ongoing war, it is clear now that some dishonest judges will think twice before engaging themselves in obvious malpractices.

In general, one may come to the conclusion that the Ukrainian judicial system is functioning pretty well considering the circumstances. So, now, in case pre-dispute negotiations come to a dead end we almost always recommend our clients go to court, although our advice was different at the very beginning of the full-scale war.

Oleksandr Aleksyeyenko, partner, and Sviatoslav Henyk, senior associate, at Nobles