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In response to the demands of the time, the justice system is being accelerated to adapt to the current living conditions caused by the war, which creates additional challenges in the administration of justice. At the same time, even during martial law, the constitutional right to judicial protection cannot be restricted. Therefore, despite all the circumstances, the Civil Cassation Court of the Supreme Court formulated a number of legal positions that will impact further law application practice.
It is worth paying attention to the following legal opinions: on the lawful and unlawful distribution (posting) of a photo in a social network on the Internet, on the validity and justification of the refusal to register the copyright of a work, on the restitution to the state of a plot of land of historical and cultural significance, and on the possibility of initiating the termination of the inheritance contract by the heirs of the alienator. Similarly, after analysing the provisions of part 2 of Article 199 of the Family Code of Ukraine, the Joint Chamber of the Civil Cassation Court of the Supreme Court concluded that there is no legal possibility to suspend the accrual of alimony, to interrupt the payment of alimony and to exempt from payment of alimony in certain periods.
In addition, in 2023, the Civil Cassation Court of the Supreme Court examined the issue of the creation of joint and several liability for the recovery of unjustified assets for the state or the value of such assets.
The intensification of lawmaking in the context of adapting judicial proceedings to the requirements of martial law is also noteworthy. Therefore, the regulation of labour relations involving employees called up for military service has been modified with the entry into force of the Law of Ukraine no. 2352-IX 'On Amendments to Certain Legislative Acts of Ukraine on Optimisation of Labour Relations' on 1 July 2022.
The Civil Cassation Court of the Supreme Court also emphasised that the protection of the child's interests should be placed on the same level as fundamental legal values such as life, health, freedom, security and justice. The protection of children's interests and their upbringing by both parents is the key to the establishment of a strong state and a law-based society, as children, when they become adults, turn into legal partners of society members.
The resolutions of the Civil Cassation Court of the Supreme Court also addressed issues of procedural law, in particular, the impossibility of suspending the proceedings due to the plaintiff's service in the Armed Forces of Ukraine if he insists on continuing the case.
². Legal Positions on Disputes Concerning the Protection of Honour, Dignity and Business Reputation
In case no. 214/11028/21, the plaintiffs brought an action for a declaration that the defendant's use of photographs belonging to the plaintiffs, which the defendant published on the internet on the Facebook page in the context of the publication of a post, was unlawful and resulted in the disclosure of personal data to third parties, an obligation to take certain measures and compensation for non-pecuniary damage.
The Supreme Court concluded that the dissemination (posting) of a photograph on a social network on the Internet, without limiting the number of users who can view this photograph, constitutes a public display of a photograph taken by that person independently. Therefore, the use of such photos is lawful, since their prior distribution (posting) on a social network was public and was done with the consent of the person whose actions made such information public. If she only made the photos available to a certain circle of users, there was no public dissemination of the photos and their use without the person's consent is therefore illegal.
At the same time, the Supreme Court emphasised that although the information published by the defendant contained elements of a provocative nature, it could not be interpreted as containing factual data, since this information was an assessment of actions and did not contain allegations of violations of laws or moral principles, but only provided an opportunity to analyse and perceive the content of the information according to one's own subjective beliefs.
The Resolution of the Civil Cassation Court of the Supreme Court of 19 July 2023 in case no. 214/11028/21: https://reyestr.court.gov.ua/Review/112433950.
²². Legal Positions on Disputes Arising from the Protection of Intellectual Property Rights
In case no. 757/519/20-ö, the plaintiff requested that the decision to refuse registration of the copyright be declared unlawful and annulled, and that the defendant be ordered to take certain measures.
In this case, the court of appeal found that the defendant had stated that the basis for refusing to register the applications was their non-compliance with the requirements of part 1 of Article 433 of the Civil Code of Ukraine and part 1 of Article 8 of the Law of Ukraine "On Copyright and Related Rights", which provide a list (which is not exhaustive) of copyright objects that are considered works.
In addition, in the applications for copyright registration submitted, the applicant indicated in para. 3 to which copyright object the work belongs.
In such circumstances, the court of appeal correctly concluded that the defendant, by refusing to register the copyright in the work without specifying the reasons for the refusal, in particular without reference to the non-compliance of the submitted applications with the specific requirements of Section II and/or Section III of the Procedure for State Registration of Copyright and Agreements Concerning the Author's Right to a Work, approved by Resolution of the Cabinet of Ministers of Ukraine no. 1756 of 27 December 2001, made decisions that cannot be considered as duly substantiated and reasoned.
The Supreme Court agreed with the conclusions of the court of appeal that the decision to refuse registration of a copyright in a work must be substantiated and reasoned, and must contain specific grounds for refusal, as well as convincing and understandable reasons for the applicant to take such a decision.
The Resolution of the Grand Chamber of the Supreme Court of 6 September 2023 in case no. 757/519/20-ö: https://reyestr.court.gov.ua/Review/113324529.
²²². Legal Positions on Disputes Arising from Land Legal Relations
In case no. 748/1335/20, the court found that the transfer of ownership of a land plot to a person took place at the expense of state-owned land for historical and cultural purposes without the consent of a specially authorised body in the field of cultural heritage protection, which contravenes the requirements of current legislation and violates the interests of the state, since the disputed land plot is located within a cultural heritage site of local significance.
The Supreme Court concluded that it is impossible for citizens and legal entities to acquire land on which archaeological monuments are located (to transfer ownership of these lands to them). The location of such lands indicates that it is impossible to create a private owner and thus a new owner. Therefore, the occupation of the land plot on which the archaeological site is located should be considered as a violation of the state's right of ownership not connected with the deprivation of possession, which is in accordance with para. "ã", part 4, Article 84 of the Land Code of Ukraine, parts 1, 2, 6 of Article 17 of the Law of Ukraine "On Protection of Cultural Heritage". In this case, the claim for compulsory restitution of the land plot should be considered as a negative claim that can be filed throughout the duration of the violation of the rights of the legal owner of the land plot in question.
The owner of a land plot on which archaeological monuments are located may demand that the violation of his or her ownership of the plot be eliminated, in particular by demanding the return of the plot.
According to the panel of judges, the land of historical and cultural significance, on which archaeological monuments are located, is classified as particularly valuable land, and therefore the return of the land of the historical and cultural fund to the state should be considered as a negative claim, rather than a vindication claim, which can be filed throughout the duration of the violation of the rights of the legal owner of this land.
The Resolution of the Civil Cassation Court of the Supreme Court of 17 May 2023 in case no. 748/1335/20: https://reyestr.court.gov.ua/Review/111125335.
²V. Legal Positions on Disputes Arising from Labour Legal Relations
In case no. 753/12209/22, the plaintiff stated that because the Law of Ukraine no. 2352-IX "On Amendments to Certain Legislative Acts of Ukraine on Optimization of Labour Relations" of July 1, 2022 (Law no. 2352-IX) abolished the right of mobilized employees to receive the average salary at their place of work, as provided for in part 3 of Art. 119 of the Labour Code of Ukraine (as amended at the time of dismissal from work due to conscription), the rights to remuneration guaranteed by the Constitution of Ukraine, to prevent restriction of the content and scope of existing rights and freedoms and such elements of the constitutional principle of the rule of law as legal certainty, legal predictability and legitimate expectations were violated. He believed that part 3 of Article 119 of the Labour Code of Ukraine, as amended as of 24 February 2022, should have been applied to the legal relations between him and the defendant with respect to the retention of his average earnings for the period of his dismissal from work due to military service.
The Supreme Court noted that with the entry into force of Law no. 2352-IX, changes were made in the regulation of labour relations involving employees called up for regular military service, military service by conscription of officers, military service by conscription during mobilization, for a special period, military service by conscription of persons from the reserves for a special period, or military service under contract. That is, starting from July 19, 2022, the employer is exempt from the obligation to maintain the average salary of employees called up for military service, with these employees retaining only their place of work and position.
Consequently, the employer's obligation to maintain the average earnings of these categories of employees was provided for up to and including the day preceding the date of entry into force of Law no. 2352-IX (July 18, 2022). From July 19, 2022, there are no legal grounds for maintaining the average earnings of such an employee.
After exempting employers from the obligation to pay monthly allowances to mobilized employees as of July 19, 2022, the Cabinet of Ministers of Ukraine on February 28, 2022 adopted Resolution no. 168 "Issues of Certain Payments to Military Personnel, Ranks and Commanders, Police Officers and Their Families During Martial Law", which compensated for the abolition of the maintenance of the average monthly salary by simultaneously increasing the allowances of military personnel at the place of service.
Given that since the entry into force of Law no. 2352-IX, there are no legal grounds for maintaining the average salary of employees who were called up for military service before the date of entry into force of this Law, the court of first instance, with which the court of appeal agreed, correctly concluded that the claims were dismissed.
The Resolution of the Civil Cassation Court of the Supreme Court of 28 June 2023 in case no. 753/12209/22: https://reyestr.court.gov.ua/Review/111906818.
V. Legal Positions on Disputes Arising from Family Legal Relations
In case no. 752/20152/16-ö, the Joint Chamber of the Civil Cassation Court of the Supreme Court analyzed the provisions of part 2 of Art. 199 of the Family Code of Ukraine and concluded that the legislator did not provide for such a possibility as suspension of alimony, interruption of alimony payment during certain periods, in particular when an adult child is not directly involved in the educational process, as well as exemption of the alimony payer from paying alimony for the maintenance of an adult child in connection with the continuation of his/her studies during the vacation period, transfer to another educational level or to another educational institution, in particular, admission to a master's degree programme. The provision of part 2 of Article 199 of the Family Code of Ukraine provides for the termination of the right of an adult child to maintenance only in the case of termination of education, i.e. graduation or expulsion from an educational institution. The legislator did not provide for an exception to the rule of part 1 of Article 199 of the Family Code of Ukraine, which, in particular, does not contain a reservation that the vacation period, the period of admission to a higher education institution to obtain a higher level of education are not included in the period of calculation and payment of alimony by one of the parents in favour of an adult child.
It should also be noted that Art. 199 of the Family Code of Ukraine does not take into account the changes in the educational system of Ukraine that occurred after the adoption of this Code. As of the date of the disputed legal relations, the new Law of Ukraine "On Higher Education" (no. 1556-VII), adopted by the Verkhovna Rada of Ukraine on July 1, 2014, as amended by the Law of Ukraine no. 720-IX of June 17, 2020, is in force in Ukraine.
The Family Code of Ukraine, which establishes the obligation of parents to support their adult daughters and sons who continue their education, was adopted on January 10, 2002 and came into force on January 1, 2004.
At the time of the adoption of the Family Code of Ukraine, the Law of the Ukrainian SSR of May 23, 1991 "On Education" was in force, and a systematic and logical interpretation of its legal provisions leads to the conclusion that as of January 10, 2002, the legislator considered master's studies as a continuation of education in a specialty for the purpose of obtaining a full higher education on the basis of a bachelor's degree (which at that time was not considered a full higher education and was granted only to institutions of accreditation levels I-III).
The Resolution of the Joint Chamber of the Civil Cassation Court of the Supreme Court of 10 April 2023 in case no. 752/20152/16-ö: https://reyestr.court.gov.ua/Review/110749212.
V². Legal Positions on Disputes Arising from Inheritance Legal Relations
In the case no. 591/1419/20, the heiress by right of representation filed a petition with the court for annulment and recognition of the inheritance contract as unenforceable, and cancellation of the state registration of the prohibition of alienation of the apartment, stating that her grandmother (the alienator) had concluded a notarized inheritance contract with the acquirer, according to which, in case of the alienator's death, the acquirer is obliged to carry out her burial, to mark the anniversary of the burial, and in case of the acquirer's failure to comply with the alienator's orders at the latter's request, this agreement can be terminated in court. Her grandmother was buried by the plaintiff's mother.
Pursuant to Article 1308 of the Civil Code of Ukraine, an inheritance agreement may be terminated by a court upon the request of the alienator if the acquirer fails to comply with his orders. An inheritance agreement may be terminated by a court at the request of the acquirer if the acquirer is unable to comply with the alienator's orders.
Considering that in the disputed legal relations the claim for termination of the inheritance agreement was filed not by a party to the inheritance agreement, but by the heir of the alienator, the Joint Chamber of the Civil Cassation Court of the Supreme Court made the following legal conclusions.
An inheritance agreement is inseparably connected with its parties. The Civil Code of Ukraine grants to the latter the right to file a petition for premature termination of the agreement in court, i.e. only the alienator or the acquirer may file a petition for termination of the inheritance agreement in court.
The alienator has the right to file a claim for termination of the inheritance agreement if the acquirer fails to fulfill or improperly fulfills the obligations imposed on him/her to perform acts of a property or non-property nature.
According to this rule, other persons, including the heirs of the alienator, cannot claim the termination of the inheritance contract.
If other persons, including heirs, have incurred expenses related to the improper performance of the acquirer's duties (e.g. burial of the alienator), the heirs have the right to claim reimbursement of such expenses from the acquirer in accordance with the procedure provided for in Chapter 83 of the Civil Code of Ukraine ("Acquisition, retention of property without sufficient legal basis").
The Resolution of the Joint Chamber of the Civil Cassation Court of the Supreme Court of 10 April 2023 in case no. 591/1419/20: https://reyestr.court.gov.ua/Review/110453005.
VI². Legal Positions on Adjudication of Disputes Arising from Recognition of Unjustified Assets and Their Recovery to the State Revenue
In case no. 991/2396/22, in which the state, represented by the Specialised Anti-Corruption Prosecutor's Office of the Prosecutor General's Office, sought to have assets in the form of a residential building and a plot of land declared unjustified and to recover money for the state, the courts found that the assets were connected to the defendants. It was also established that the defendants did not lend any funds under the agreement that formed the basis of the defendant's acquisition of the assets, i.e. the defendants did not use their legitimate income to acquire the assets. Therefore, the courts' conclusion that the difference between the value of assets and legitimate income is not applicable is reasonable.
Having established that the disputed assets had left the defendants' possession, the lower courts reasonably concluded that they were obliged to pay their value.
At the same time, the Supreme Court noted that the courts did not take into account the fact that the law does not provide for cases of joint and several liability for the return of unjustified assets to the state or the value of such assets, and drew erroneous conclusions about the joint and several return of the value of unjustified assets from the defendants to the state. The Supreme Court modified the operative part of the judgment of the court of first instance, which had been upheld in that part by the court of appeal, and ordered the defendants to return to the state the value of the unjustified assets in shares.
The Resolution of the Civil Cassation Court of the Supreme Court of 4 October 2023 in case no. 991/2396/22: https://reyestr.court.gov.ua/Review/114020811.
V²²². Legal Positions on Consideration of Complaints Against Decisions, Acts or Omissions of a State Enforcement Officer or Other State Enforcement Service Official
In case no. 1309/9120/12, the applicant sought to have declared unlawful the inaction of the Western Interregional Department of the Ministry of Justice in enforcing a court decision on the father's participation in the upbringing of his minor daughter and communication with her, and the failure to enforce the decision on access to the child in accordance with the ECHR judgment in case no. 12962/19 "Vykhovanok v. Ukraine" of 7 October 2021; oblige the Western Interregional Department of the Ministry of Justice to take immediate action to develop a comprehensive strategy for the enforcement of these judgments and targeted support for the child, who appears to be showing signs of alienation from one of her parents.
When considering the complaint, the courts found, and the participants in the enforcement proceedings did not deny, that in order to carry out enforcement measures to ensure the restoration of the claimant's infringed rights, the state authorities (including the Western Interregional Department of the Ministry of Justice) did not initiate mechanisms to encourage parental cooperation, and did not take measures to develop a comprehensive strategy for the enforcement of the court decision, in particular to provide targeted support to a child who apparently showed signs of alienation from one of the parents.
In accordance with the requirements of part 1 of Article 10 of the Law of Ukraine "On Enforcement of Judgments and Application of the Case Law of the European Court of Human Rights", in order to ensure the restoration of the claimant's violated rights, in addition to the payment of compensation, additional individual measures are taken.
Part 1 of Article 13 of this Law provides that general measures are taken to ensure compliance by the state with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms, the violation of which has been established by the judgment, to ensure elimination of systemic deficiencies underlying the violation identified by the Court, and to eliminate the grounds for applications against Ukraine to the Court arising from a problem that has already been the subject of consideration by the Court.
In accordance with paras. 4.14 and 4.15 of the Regulation on Interregional Departments of the Ministry of Justice of Ukraine, approved by Order of the Ministry of Justice of Ukraine no. 1707/5 of 23 June 2011, the Interregional Department, in accordance with its tasks: organises, through a structural unit that ensures the exercise of powers in the field of organising the enforcement of decisions of courts and other bodies (officials), the enforcement of decisions of courts and other bodies (officials) in accordance with the laws of Ukraine; controls, through a structural unit that ensures the exercise of powers in the field of organising the enforcement of decisions of courts and other bodies (officials), the enforcement of decisions in cases provided for by law, by the relevant department of enforcement of decisions and departments of the state enforcement service of the Interregional Department.
The Supreme Court held that since the Western Interregional Department of the Ministry of Justice had not actively participated in the implementation of enforcement measures to ensure the restoration of the applicant's infringed rights and the enforcement of the judgment on father-child contact, had not implemented relevant programmes and had not taken other relevant measures, the applicant's claims regarding the obligation of the Western Interregional Department of the Ministry of Justice to take measures to develop a comprehensive strategy for the enforcement of the judgment in case no. 1309/9120/12 on father-child contact were considered reasonable and should be satisfied.
The Resolution of the Civil Cassation Court of the Supreme Court of 8 March 2023 in case no. 1309/9120/12: https://reyestr.court.gov.ua/Review/109547255.
²Õ. Legal Positions on Procedural Issues
In case no. 174/760/21 for reinstatement of employment, recovery of wages for the period of forced absence from work, recovery of non-pecuniary damages, the court of appeal granted the defendant's request to suspend the appeal proceedings. The civil proceedings were suspended pursuant to para. 2 of part 1 of Art. 251 of the Civil Procedural Code of Ukraine. The decision of the court of appeal was based on the fact that the plaintiff was called up for military service in connection with the general mobilisation and sent to a military unit pursuant to Decree of the President of Ukraine of 24 February 2022 no. 65/2022 "On General Mobilisation". Since it is the duty of the court to suspend the proceedings, in particular when one of the parties is a member of the Armed Forces of Ukraine or other military formations established by law and placed under martial law, the panel of judges concluded that the motion to suspend the proceedings should be granted.
The Civil Cassation Court of the Supreme Court stated that the parties to court proceedings and their representatives must exercise their procedural rights in good faith; abuse of procedural rights is not permitted (part 1, Article 44 of the Civil Procedural Code of Ukraine).
Part 3, Article 2 of the Civil Procedural Code of Ukraine outlines the fundamental principles of court proceedings, which comprise of a reasonable timeframe for case consideration, proportionality, discretion and competitiveness of the parties.
The provisions of para. 1, part 1, Article 251 of the Civil Procedural Code of Ukraine are aimed at protecting the procedural rights of a civil party to a civil proceeding who is a member of the Armed Forces of Ukraine or other military formations established by law and placed under martial law.
Proceedings in a case may be suspended only if there are circumstances that prevent its consideration. The court of appeal did not pay due attention to the fact that the plaintiff, who was present at the hearing in the courtroom, and his representative objected to the suspension of the proceedings. In the cassation appeal, the plaintiff also insisted that the court of appeal consider his claim for reinstatement, recovery of wages for the period of forced absence, and recovery of non-pecuniary damage.
The plaintiff, who had been called up for military service, actively participated in the proceedings and insisted on completing the appellate review. The defendant's actions, insisting on suspending the proceedings in the case on appeal against the decision not in his favour, referring to unrelated circumstances, breach the principle of good faith. In such circumstances, the institution of suspension of proceedings cannot be applied in this case to the detriment of the plaintiff's interests, the purpose of this institution and the principles of civil justice.
The Resolution of the Civil Cassation Court of the Supreme Court of 15 August, 2023 in case no. 174/760/21: https://reyestr.court.gov.ua/Review/112896497.
In case no. 225/2213/20, a private enforcement officer claimed that the court of appeal had unreasonably refused to grant her application for exemption from court fees and had failed to take into account her lack of income, for which she had submitted relevant evidence, including a tax return. In addition, since 24 February 2022, Ukraine has been under martial law. She believed that in the absence of statutory rates of court fees, the plaintiff was not obliged to pay court fees. In view of the provisions of Article 2 of the Law of Ukraine "On Court Fees", a private enforcement officer does not have to pay court fees, as he is not a natural or legal person who applies to the court for protection of his rights and interests. At the same time, the said Law does not provide for the payment of a court fee for a private enforcement officer's application to the court.
Parts 1 and 2 of Article 8 of the said Law set out a clear and exhaustive list of conditions, as well as subjective and substantive criteria, under which, taking into account the property status of a party, the court may, in particular, exempt from paying the court fee.
This provision explicitly provides for the right of the court, in particular, to exempt from paying the court fee the plaintiff - who is a member of a low-income or large family, and the applicant (complainant) is not the plaintiff in the case. That is, under certain conditions, the court may exempt a party to the case from paying the court fee.
The Resolution of the Civil Cassation Court of the Supreme Court of 6 November 2023 in case no. 225/2213/20: https://reyestr.court.gov.ua/Review/114848830.
Author's column: https://so.supreme.court.gov.ua/authors/315/kliuchovi-rishennia-kasatsiinoho-tsyvilnoho-sudu-u-skladi-verkhovnoho-sudu-za-2023-rik.
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