STATE ACTION ON CORONAVIRUS

On March 11, 2020 the Cabinet of Ministers of Ukraine adopted Resolution On Preventing the Spread of COVID-19 in Ukraine, according to which the quarantine has been introduced throughout Ukraine from March 12 to April 3, 2020. As of today the Ministry of Health of Ukraine admits the lockdown may be extended.

On March 17, 2020 the Law of Ukraine On Amendments to Certain Legislative Acts of Ukraine Aimed to Prevent the Occurrence and Spread of the Coronavirus Disease (COVID-19) (No. 530-ІХ) (the Law) was brought into force.

COVID-19 OUTBREAK = FORCE MAJEURE, IS THE LAW INSTRUCTIONS SUFFICIENT?

The Law amends the Law of Ukraine On Ukrainian Chamber of Commerce and Industry and classified the quarantine, introduced by the Cabinet of Ministers of Ukraine, as a force majeure event (acts of God).

Considering the fact that the force majeure term contained in the Law of Ukraine On Ukrainian Chamber of Commerce and Industry is the same as the term "acts of God", which is used in the Civil and Economic Codes of Ukraine, so it's feature is that the breaching party shall be released from liability for breach of obligation if it proves that such breach occurred as a result of force majeure circumstances.

However, it should be noted that the quarantine as a force majeure circumstance does not have a pre-established mandatory nature. In the event of such circumstance, the party invoking force majeure shall prove that it was unable to fulfill the obligations under the contract precisely because of force majeure.

COVID-19 OUTBREAK AS A FORCE MAJOR: PROVIDED DOES NOT MEAN PROVED

Referring to the quarantine as a ground for exemption from liability for non-performance (improper performance) of obligations in future lawsuits, such circumstance shall be supported by appropriate and sufficient evidence.

If considered the quarantine as a force majeure circumstance in analogy to the actions provided for by the Law of Ukraine On Temporary Measures for the Anti-Terrorist Operation Period, then the only appropriate and sufficient document shall be the certificate of the Chamber of Commerce and Industry of Ukraine.

Certificates attesting force majeure circumstances (acts of God) shall be issued by the Chamber of Commerce and Industry of Ukraine and by its authorized regional chambers of commerce and industry within seven days as of the date of receipt of the application from the business entity.

Although the Law provides for the possibility to exempt from liability in the event of force majeure circumstances, it should be noted that the ground for such exemption is not just the fact that the quarantine is a circumstance of the acts of God, but the correct way to prove such circumstance as well. Therefore, to obtain the desired results in the upcoming litigation activity it is necessary to take care in advance of the evidence base in order to confirm the connection of force majeure with the breached obligation.

PERIOD FOR CERTAIN PROCEDURAL ACTIONS

Currently, all procedural actions shall be taken within the period stipulated by the law or by the court. At the same time, according to the procedural legislation acts of God may serve as grounds for restoration of period for appeal and cassation appeal against court decisions in the event if a party to the case has a corresponding petition.

JUSTICE IMPLEMENTATION IN THE QUARANTINE CONDITIONS

In order to protect the population of Ukraine from the spread of acute respiratory diseases and COVID-19 which is classified as a particularly dangerous infection, it is recommended by the letter of the Council of Judges of Ukraine as of March 16, 2020 No. 9pc-186/20 to establish a special working-hour arrangements for the courts of Ukraine for the period from March 16 to April 03, 2020.

The State Court Administration of Ukraine in its messages informs that all possible measures to ensure stable and safe functioning of the judicial system are taken in judicial institutions, but at the same time priority measures to establish a special working-hour arrangements during quarantine have been introduced.

Thus, today we have a situation aimed at minimizing the physical presence of parties to the proceedings and visitors in court premises in order to reduce the possible spread of infections.

Such minimization is ensured, in particular, by consideration of most court cases in written proceedings; allowing parties to the proceedings to submit documents remotely, in particular, by means of postal services and to the official court emails; sending copies of procedural documents to the applicant's e-mail address. The parties also have a right to apply to court to adjourn the consideration of the case in connection with the quarantine introduction.

The Supreme Court of Ukraine has interesting working arrangements during quarantine. Thus, while the SC reports only about minimizing the oral court hearings, the CCC SC explicitly states that at the time of quarantine ALL court hearings scheduled for consideration in the CCC SC will be adjourned.

Instead, the Verkhovna Rada of Ukraine Committee on Legal Policy approved its message to the citizens regarding the functioning of the justice system during the quarantine period, which states that courts shall work ensuring the citizens access to justice.

The Committee noted that all measures proposed by the Council of Judges of Ukraine and judges’ meetings, in particular, asking citizens being the participants to litigation process to refrain from participating in court hearings, unless the hearings require mandatory presence of parties, is not binding.

COVID-19 OUTBREAK≠LIMITATION OF THE RIGHT TO JUDICIAL PROTECTION

What is at issue is a declaration of a state of emergency in the territory of Ukraine when certain restrictions of rights and freedoms of a person and a citizen may be imposed in accordance with the Constitution of Ukraine.

However, the citizens’ right to apply to court, that is, a constitutional guarantee to everyone to protect their rights and freedoms by court belongs to those rights, which cannot be restricted.

QUARANTINE IN THE EUROPEAN COURT OF HUMAN RIGHTS

Due to spread of COVID-19, the European Court decided to limit its activities. In this regard, the six-month time-limit for the lodging of applications, under Article 35 of the European Convention on Human Rights, is exceptionally suspended for a one-month period running from Monday 16 March 2020.

Please kindly note KPD Consulting Law Firm commits to providing full and continuous legal services adapted to the anti-COVID measures implemented in Ukraine. Our teams are well set up to work remotely, whilst being fully available via phone and email. For any further details, our clients may always get in touch with their relevant contact partner in our law firm. In case of any problems please contact our reception board +380442343619.

Should you have any questions with respect to above or require any additional information, please do not hesitate to contact Mr. Igor Kalitventsev (i.kalitventsev@kpdconsulting.com.ua). We will be pleased to assist You. The information contained in this overview is not intended to provide legal advice and should not be relied on or treated as a substitute for specific advice concerning individual situations.