Counsel, attorney of ADER HABER Andriy Hvozdetsky analyzed the impact of quarantine on the Ukrainian judiciary for Ukrainian Lawyer(№4-5).
What quarantine disputes have you already dealt with? Which ones do you expect to appear in the near future, in particular after the lifting of restrictive measures?
It is obvious that the restrictions imposed by the quarantine already have and will have significant organizational and economic consequences in the future. It is also obvious that all of them will not be settled through negotiations and agreements, which is why active claims work, one way or another due to the impact of quarantine on business, should be expected later, when the search for agreements and attempts to resolve disputes without going to court will remain unsuccessful.
With the ban on the entire service sector for two months, many tenants were unable to operate and generate income, and many failed to reach an agreement with landlords on rebates or exemptions, leading to a wave of litigation. It is also possible to assume a wave of disputes over contractual relations, which will be due to delays in both payment and fulfillment of other conditions of the contract. We must not overlook the fact that traditionally any economic turbulence causes problems in servicing credit obligations. Despite the state’s efforts to create conditions for the restructuring of debt obligations, many banks are in no hurry to make concessions to debtors, and therefore assume a wave of litigation of creditors and debtors.
At the moment, you can see the labor disputes and disputes related to protection against raiding – quarantine clearly diverted the attention of asset owners to more pressing issues, which allowed the raiders, the so-called. black notaries and registrars to do their “business”. These are categories of cases related to the restoration of rights to lost assets, as well as those aimed at stopping and counteracting the seizure of property, corporate rights.
Probably the courts will be overwhelmed with cases, one way or another due to quarantine. What, in your opinion, can be other effective ways to protect violated customer rights in connection with quarantine?
It should be noted that the Ukrainian courts were overburdened even before the quarantine – it is not news to anyone that it is not very encouraging to expect the case to be considered within the time limits provided by the procedural legislation. It should be noted that in connection with the quarantine, amendments were made to the procedural legislation, which provided for the suspension of a number of terms, including the statute of limitations, and therefore, in addition to cases related to quarantine, the court will also apply to those who paused the claim work during the quarantine period. Of course, the most constructive and effective out-of-court way to settle a dispute and protect one’s rights is through negotiations and, ultimately, through mutual concessions and mutually beneficial agreements. In addition, different categories of disputes should be considered separately – for example, not only the court provides for the resolution of labor disputes and disputes. Recently, the Cabinet of Ministers of Ukraine approved the draft Law of Ukraine “On Mediation”, developed by the Ministry of Justice of Ukraine, which will further allow the official implementation of the mediation procedure in Ukrainian legislation. It is envisaged that the mediation procedure will be used in any conflicts (disputes) arising from civil, family, labor, economic, administrative legal relations, as well as in criminal proceedings when concluding reconciliation agreements between the victim and the suspect, the accused and in other spheres. relations, and it will be possible to apply to a mediator for mediation both before applying to a court, arbitration court, international commercial arbitration, and during court proceedings, arbitration or arbitration proceedings or during the execution of a court decision, arbitration court or international commercial arbitration. This is an effective method, which in foreign practice has a positive experience.
How do you assess the prospects of lawsuits against Ukrainian state bodies in connection with their abuse of power and other illegal actions due to quarantine and its introduction? What, in your opinion, are the most significant illegal actions?
A distinction should be made between illegal actions of public authorities and their officials, which took place in individual cases, as well as the idea circulated in the media that quarantine and restrictive measures imposed in this connection are illegal. Regarding the first, that the prospects of judicial protection of violated rights in each case are assessed individually – well-known cases that may indeed indicate the abuse of power by certain officials in relation to specific individuals, while other situations require analysis “under a magnifying glass”.
If we talk about the acts and actions of the Cabinet of Ministers of Ukraine to establish quarantine, then I am far from thinking that the claims for the abolition of such will be satisfied.
The thesis spread in the mass media that the established restrictions can take place only in the conditions of introduction of the legal regime of the state of emergency is refuted. In Ukraine, there is a separate layer of legislation in the field of health care, which provides for the necessary response of the state, including in order to protect against infectious diseases, which is the coronavirus infection COVID-19. Thus, the establishment of quarantine by the Cabinet of Ministers of Ukraine is expressly provided for in Article 29 of the Law of Ukraine “On Protection of the Population from Infectious Diseases”. The establishment in the relevant decision of the Government of temporary restrictions on the rights of individuals and legal entities and additional obligations imposed on them, was provided by law in the version that was in force before the quarantine in March this year. The Law also provides for the powers of local executive bodies and local governments, including the establishment of special regimes of departure and departure, a special procedure for preventive and anti-epidemic measures. Relevant powers and procedures are also provided by the provisions of the Law of Ukraine “On Ensuring Sanitary and Epidemic Welfare of the Population”. In general, it is clear that the actions of the Government of Ukraine and local governments directly and aimed at implementing constitutional provisions aimed at ensuring public health, as well as the provisions of the Basic Law of Ukraine provide for the possibility of restricting the exercise of certain human rights for health people special procedure for preventive and anti-epidemic measures. Relevant powers and procedures are also provided by the provisions of the Law of Ukraine “On Ensuring Sanitary and Epidemic Welfare of the Population”. In general, it is clear that the actions of the Government of Ukraine and local governments directly and aimed at implementing constitutional provisions aimed at ensuring public health, as well as the provisions of the Basic Law of Ukraine provide for the possibility of restricting the exercise of certain human rights for health people special procedure for preventive and anti-epidemic measures. Relevant powers and procedures are also provided by the provisions of the Law of Ukraine “On Ensuring Sanitary and Epidemic Welfare of the Population”. In general, it is clear that the actions of the Government of Ukraine and local governments are directly aimed at implementing the constitutional provisions aimed at ensuring public health, as well as the provisions of the Basic Law of Ukraine provide for the possibility of restricting the exercise of certain human rights for health people