Justice in Ukraine during martial law
Despite the fact that Ukraine is in the state of war for more than three months, Ukrainian courts continue to administer justice, but with relevant peculiarities, primarily related to the need to prevent threats to the lives and health of judges and all participants in the trial, in particular in the temporarily occupied territories of Ukraine.
Thus, Article 26 of the Law of Ukraine “On the Legal Regime of Martial Law” stipulates that justice in the territory where martial law is imposed is administered only by courts. Courts established in accordance with the Constitution of Ukraine operate in this territory. Reduction or acceleration of any form of justice is prohibited. If it is impossible to administer justice by courts operating in the territory where martial law is imposed, the laws of Ukraine may change the territorial jurisdiction of court cases heard in these courts, or change the location of courts in the manner prescribed by law. Establishment of extraordinary and special courts is not allowed.
On 3 March 2022, the Parliament of Ukraine adopted the Law of Ukraine No. 2112-IX “On Amendments to Article 147(7) of the Law of Ukraine” On the Judiciary and the Status of Judges” on Determining the Territorial Jurisdiction of Judicial Cases”, which establishes that in case of impossibility to administer justice by a court due to objective reasons during martial law or emergency, natural disasters, hostilities, measures to combat terrorism or other emergencies, the territorial jurisdiction of the cases may be changed by decision of the High Council of Justice, adopted on the proposal of the Head of the Supreme Court, by transferring the case to the closest court or another designated court. If the High Council of Justice is not able to exercise such authority, it shall be exercised by order of the Head of the Supreme Court. The respective decision is also the basis for the transfer of all cases pending before the court whose territorial jurisdiction is changing. This means that due to hostilities in a certain territory of the state, the work of the courts may be suspended with the simultaneous determination of other courts that will administer justice instead of the latter. Lists of courts whose territorial jurisdiction has been changed and restored are available on the official website of the Supreme Court. In addition, you can find information about the change in the territorial jurisdiction of cases directly on the websites of the relevant courts (the official portal “Judiciary of Ukraine”).
The Supreme Court also reported on some peculiarities regarding administration of justice in the territory where martial law has been imposed.
The court noted the following:
– in case of threat to life, health and safety of court visitors, court staff, judges, a decision will be made to temporarily suspend the proceedings by a certain court;
– cases that are not urgent will be considered only with the written consent of all participants of the proceedings;
– court hearings, which should consider the issue of choosing or continuing a measure of restraint in the form of detention, may not be postponed;
– to ensure safety of participants of court proceedings and court visitors, the personal reception of citizens by the court management is terminated and the admission to court hearings of persons who are not participants in court hearings is limited;
– if the court has not stopped administering justice, participants in the hearings have the right to apply for adjournment of cases in view of hostilities and/or for consideration of cases via videoconference using any technical means, including their own.
These mentioned peculiarities are not exhaustive and vary consistently according to wartime conditions. It should be borne in mind that the imposition of martial law in a certain territory of Ukraine is a good reason to renew the procedural period. Also, in order to prevent threats to the life and health of judges and participants in court proceedings, during martial law access to the Unified State Register of Judgments, services “Status of cases” and “List of cases to be considered” may be temporarily suspended. Therefore, parties to the case may find the date and time of court hearings promptly by making calls to the court or by other means of communication.
It should be noted that according to the Supreme Court ruling as of 14 April 2022 in case No. 308/9708/19 after the beginning of the armed aggression against Ukraine in 2014, the courts of Ukraine, considering cases where the defendant is the Russian Federation, have the right to ignore the immunity of this country established in accordance with Article 79 (1) of the Law of Ukraine “On Private International Law”, and to consider cases of compensation for damage caused to an individual as a result of armed aggression of the Russian Federation, on a lawsuit filed against this foreign country. In this decision, the Supreme Court found that any dispute arising on the territory of Ukraine from a citizen of Ukraine, even with a foreign country, including Russia, can be considered and resolved by the court of Ukraine as a proper and competent court.
This means the abolition of the judicial immunity of the country-aggressor Russian Federation by the Supreme Court ruling as of 14 April 2022 in case No. 308/9708/19, as well as the receipt of individuals who have suffered damage as a result of armed aggression in Ukraine, the opportunity to obtain unimpeded protection of own rights and further compensation for damage caused by decisions of the courts of Ukraine.