Resolutions of the Supreme Court of Ukraine, dated May 21, 2012, case Nos. 6-18цс11, 6-69цс11, 6-20цс11. Available at http://reyestr.court.gov.ua/Review/24976430, http://reyestr.court.gov.ua/Review/24976440,  http://reyestr.court.gov.ua/Review/24704776

In addition, the court did not take into account that limitation of ways to protect civil rights or interests shall be applied in compliance with the provisions of Articles 55, 124 of the Constitution of Ukraine and Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter – the Convention), according to which every person has a right to an effective remedy not prohibited by law.

Since the provisions of the Constitution and the Convention have the supreme legal force (art. Art. 8, 9 of the Constitution), and limitation of the scope of remedies is contrary to these provisions, civil rights and civil interests may be enforced by court in a manner not specified by a law, in particular by Article 16 of the Ukrainian Civil Code, but which is an effective remedy, namely it is in congruence with the content of an infringed right, the nature of an infringement and the consequent effect caused by an infringement.

Limited interpretation of Article 16 of the Ukrainian Civil Code is contrary to the aforementioned provisions and  led to the wrongful refusal in exercising the plaintiff’s right to judicial protection.

Resolution of the Higher Commercial Court of Ukraine, dated December 07, 2016, case No. 908/222/16. Available at http://reyestr.court.gov.ua/Review/63252617

Taking into account that filing an action with a court shall be regarded as justified when it is aimed at protection of infringed or contested rights and interests protected by law, a right to sue shall  arise after a defendant infringes respective rights of a plaintiff – it is an infringed right that shall be enforced, but not a right that potentially might be infringed in the future and in respect of which it is unknown whether it will be infringed or not.

Resolution of the Higher Commercial Court of Ukraine, dated March 10, 2016, case No. 910/16269/15. Available at http://reyestr.court.gov.ua/Review/56341302

The subject matter of the dispute is declaring the activities of the defendant illegal. That is, the plaintiff requested the court actually to ascertain and declare that something had occurred despite the fact that neither legislation on advertising nor provisions of the Ukrainian  Code of Commercial Dispute Resolution Procedure provide for such a way of protection of rights as ascertainment of legal facts.

Resolution of the Higher Commercial Court of Ukraine, dated April 26, 2016, case No. 926/1334/15. Available at http://reyestr.court.gov.ua/Review/57430476

The lower courts did not take into account that a claim to declare advertising to be fraudulent is actually a request to ascertain a fact that has legal implications. This goes beyond the powers of commercial courts because by satisfying such a claim the court will not protect per se rights and legal interests of business entities. Such a fact may be ascertained only when a commercial court tries an existing between litigants  dispute about a civil right. Ascertainment of a fact is an element of estimation of facts of a case and validity of claims. Therefore, this remedy is not a way of protection provided by law and, consequently, does not result in redress.

© Yuriy Karlash, English translation, 2017

© Yuriy Karlash, compilation, 2017