International Conference of Memorandum Group of Judges Associations “International Cooperation in Civil and Criminal Matters”

December 3-4, 2019 in the city. Bonn (Germany) hosted the International Conference of Memorandum Group of Judges' Associations on “International Cooperation in Civil and Criminal Matters”. Judges from Germany, Ukraine, Georgia, Armenia, Kazakhstan, Uzbekistan, Poland and Moldova took part in the conference. The Association of Judges of Ukraine participated in the conference: President of the Association of Judges of Ukraine, Judge of the Supreme Specialized Court of Ukraine for Civil and Criminal Cases Yevtushenko Olena Ivanivna and Judge of the Kyiv Court of Appeal Tetiana Volodymyrivna.The official opening of the conference took place in the Land Court of Kyiv Bonn. The speech was made by: the chairman of the German Union of Judges Jens Gnize and the chairman of the Land Court of the city. Bonn Dr. Stefan Weizmann.The main topics discussed at the conference are international cooperation in civil and criminal matters, namely: recognition and enforcement of judicial decisions and interaction with foreign countries on extradition, including the European arrest warrant. President of the Association of Suitors Yevtushenko of Ukraine Olena Ivanovna delivered a report on the topic: “Recognition and execution of decisions of foreign courts”. Rosik Tatiana Volodymyrivna delivered a report on the topic: “Criminal prosecution and combating cybercrime in Ukraine”. The aim of the conference is to deepen international cooperation between associations of judges.

President of the Association of Judges of Ukraine
Yevtushenko Olena Ivanivna

Recognition and enforcement of decisions of foreign courts

Olena Yevtushenko, Judge of the High Specialized Court of Ukraine for Civil and Criminal Cases
President of the Association of Judges of Ukraine
Honored Lawyer Ukraine
Candidate of Juridical Sciences

Dear colleagues!

Let me once again congratulate and thank the organizers of the conference for the opportunity to share their observations on the recognition and enforcement of decisions of foreign courts.

The relevance of the issues discussed today is certainly evidenced by the clarity of the composition of the conference participants.

I would like to begin my speech by stating the indisputable fact that in recent decades we have all witnessed global changes in the world environment, processes of expansion of foreign economic and cultural ties deepening between different countries.

As the processes of economic integration between states intensify, borders are erased, the migration processes of the population, including labor, expand, in the end, simply facilitate and increase the travel of citizens of different countries abroad, the importance of the relevant norms of private international law will undoubtedly increase.

Speaking about the institution of recognition and enforcement of foreign court decisions as an integral part of the international civil process, it should be noted its special specificity due to the uniqueness of the object of regulation — civil relations complicated by a foreign element.

“Enforcement of judgments issued by foreign courts is one of the most complex problems of private international law.”

It is well known that one of the manifestations of state sovereignty is the inadmissibility of foreign interference in jurisdictional activities.

It is obvious that the state allows itself the possibility of distributing in its territory the jurisdiction of a foreign judicial act exactly as far as it imagines, it corresponds to the priorities and values of the society whose interests it represents.

As a rule, a jurisdictional act has legal force only in the territory of the relevant state. The extension of the legal force of a judicial or non-judicial act to the territory of another sovereign State is possible only on the basis of equality and reciprocity in accordance with international agreements.

The existence of such agreements expands the competence of the jurisdictional bodies, strengthening the legal significance of the acts adopted by them, contributes to the strengthening of international relations.

Recognition in the territory of a State of a decision of the courts of another State means giving it the same legal force as the decisions of the courts of that State that have entered into legal force.

These rulings acquire the properties of irrefutability, exclusivity, and judgments on condemnation — also of feasibility. They are mandatory for officials and state authorities of a given state.

As you know, today in the world there are two main systems of recognition and execution of foreign court decisions.

The first is the system of exequatur, according to which a foreign decision is recognized and enforced after the courts of the country where enforcement is requested have been given coercive force by issuing the relevant decree (exequatur).

The decision of a foreign court after obtaining an exequatur acquires the same legal force as the decision of its own court, it is usually carried out in the same order as the decision of its own court.

National legislations have different approaches to issues of possible revision of adopted decisions.

In some countries, for example, in Belgium, the court that decides on enforcement subjects a foreign decision to a full audit in terms of the correctness of the consideration of the case on the merits, that is, from the legal and factual side; in others, for example, in Germany, such a complete check is not provided.

In most countries, the exequatur is issued only for the execution of the decree, sometimes (for example, in Italy) - and for the recognition of the decree.

An exequatur is issued subject to certain conditions; reciprocity, requirements that the defendant be properly informed of the trial, and the like.

The second is the Anglo-American system of common law, according to which a foreign court decision as such is not enforced, but serves only as the basis for a new trial. In this consideration, it creates a presumption in favor of the winning party; the opposing party may refute the presumption. A foreign court decision generates a redistribution of burdensome evidence under this system.

The principles of recognition and enforcement of foreign court decisions are traditionally enshrined in legislative acts. In addition to the Constitution of Ukraine, which establishes the basic principles of civil proceedings.

The civil procedural law of Ukraine (Section VI) enshrines the principle of conventional exequatur, according to which foreign court decisions are appointed and enforced by the courts of Ukraine only in cases where recognition and enforcement of such decisions are provided for by international treaties.

It should be noted that the absence of an international treaty in itself cannot serve as a basis for refusing consideration by the court of the interested party's application for recognition and enforcement of the decisions of a foreign court.

Decisions of foreign courts that do not require enforcement shall be recognized without any further proceedings unless the interested party objects to this effect.

Ukraine recognizes those that do not require, due to their content, the decision of foreign courts regarding the status of a citizen of the state whose court adopted the decision; on the dissolution or invalidation of a marriage between a citizen of Ukraine and a foreign citizen, if at the time of consideration of the case at least one of the spouses lived outside Ukraine, as well as by marriage between citizens of Ukraine, if both spouses at the time of the case lived outside Ukraine; in other cases stipulated by federal law.

We will note that in international practice for such categories of court decisions absolute action is established and their legal consequences are not limited around the persons who participated in the case (their executors).

Recognition and execution of award decisions is carried out according to the general rule within the framework of a special legal procedure, which considers the application (petition) of the debtor and the objection of the debtor (exequatur system).

An international treaty may provide for other rules. Thus, the Agreement on the Procedure for Resolving Disputes Related to the Implementation of Economic Activities of March 20, 1992 (Kyiv Agreement) stipulates that decisions made by the competent courts of one State — a CIS participant, shall be enforced in the territory of other CIS States by bodies appointed by the court or determined by the legislation of this State (Art. 7).

In Ukraine, the enforcement of the decision is carried out by the bodies of the Executive Service of Bailiffs at the request of the interested party, to which a copy of the decision is attached; an official document stating that the decision has entered into legal force, if this is not visible from the text of the decision itself; evidence of notification of another parties to the process (as a result of which the decision was made); executive document.

A decision of a court of a foreign state, which can be enforced in Ukraine, is a court decision made on the merits of a dispute or case: decisions of courts of general jurisdiction in civil cases, judgments in cases concerning compensation for damage caused by a crime, decisions in cases of economic disputes, other matters related to the implementation of entrepreneurial and other economic activities.

Thus, judicial practice goes along the path of impossibility of enforcing definitions other than decisions of courts of foreign states adopted by them before or after consideration of the dispute on the merits, including definitions on securing a claim.

The application (petition) for recognition and enforcement of the decision of a foreign court is submitted by the party in the dispute in favor of which the decision was made to the court of Ukraine.

The territorial jurisdiction of this category of cases is determined by the location or residence of the debtor, or, if unknown, by the location of the debtor's property.

Requirements for the content of the application (petition) for recognition and enforcement of the decision of a foreign court are determined by the norms of national procedural legislation.

Consideration of the application for recognition and enforcement of the decision of a foreign court is carried out by the judge alone for a period not exceeding one month, two months (in the court of general jurisdiction) in a court session called by the parties.

A person who has filed an application for recognition and enforcement of a foreign court decision has the right to refuse the stated requirement to adopt a determination that completes the consideration of such an application; in this case, the proceedings are terminated.

In the process of considering a case, the Ukrainian court cannot review the decision of a foreign court on the merits, but only establishes the presence or absence of grounds for recognizing and enforcing the decision of a foreign court, provided for by procedural legislation and norms of international treaties.

That is why the subject of proof in the case includes facts indicating the presence or absence of grounds for refusing recognition and enforcement of a foreign court decision.

As a general rule, the distribution of duties on evidence is carried out as follows. The claimant must provide the court with evidence that a foreign court has made a decision in his favor;

• a decision by law of the state in whose territory it is adopted has entered into legal force;
• the party against whom the decision was made was informed in a timely and proper manner of the time and place of the proceedings.

Accordingly, the debtor proves the existence of grounds for refusing to recognize and enforce a foreign court decision.

The list of grounds for refusal to recognize and enforce a foreign court decision is determined by the norms of procedural legislation, as well as international treaties with the participation of Ukraine.

So, for example, in accordance with Art. 55 of the Conventions on Legal Aid and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993, the recognition and enforcement of foreign judgments is refused in cases where:

(a) in accordance with the law of the State in whose territory the decision is made, it has not entered into legal force and is not enforceable (except in cases where the decision is enforceable before it enters into force);

(b) the defendant did not participate in the proceedings as a result of the fact that he or his authorized representative was not served a summons to the court in a timely and proper manner;

c) on an identical claim on the territory of Ukraine, a decision that has already entered into legal force, or there is a recognized decision of a court of a third state, or if the court of Ukraine has previously initiated proceedings in this case;

d) the case falls within the exclusive competence of the courts of Ukraine;

e) there is no document confirming the agreement of the parties in a case of contractual jurisdiction;

e) the limitation period of compulsory execution, provided for by the legislation of Ukraine, has expired.

These rules apply to decisions made by the courts of Armenia, Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Turkmenistan, Uzbekistan and Russia.

Grounds for refusal to recognize and enforce foreign court decisions are divided into two groups.

The first group includes the grounds aimed at protecting the interests of the person against whom the decision is made. In this case, recognition and enforcement of a foreign court decision will be denied if:

• the party against whom the decision was adopted was deprived of the opportunity to participate in the proceedings due to the fact that it was not given timely and proper notice of the time and place of the case, or for other reasons it could not provide its explanations to the court;
• a decision under the law of the State in whose territory it was adopted has not entered into legal force or is not enforceable, or the limitation period for the issuance of a foreign court order for enforcement has already expired;
• there is a decision of a court of Ukraine that has entered into force, adopted on an identical claim, or a case on an identical claim is pending in Ukraine, the proceedings for which are open for initiating proceedings in a foreign court.

The second group of grounds is aimed at protecting the interests of society and the state.

Accordingly, the recognition and enforcement of decisions may be refused in cases where:

• consideration of the case in accordance with an international treaty or law is the exclusive competence of the courts of Ukraine;
• the adoption of a decision may damage the sovereignty of Ukraine, threaten its security or contradict the public order of Ukraine.

The Institute of Public Order protects the Ukrainian legal system from the implementation of measures that contradict its foundations.

By means of a declaration of public order, the State shall not allow the execution of a decree on its territory if, as a result, actions are carried out that are either expressly prohibited by law, or threaten its sovereignty and security, are in conflict with the principles of morality, morality, public policy and public interests.

The law does not establish a list of violations of public order, the qualification of certain circumstances in this capacity should be carried out in the process of considering a particular case.

In judicial practice at different times, observance of legality in the administration of justice, the obligation of judicial acts of the Russian court, the inadmissibility of arbitrary interference of anyone in private affairs, the need for unhindered exercise of civil rights, equality of participants, inviolability of property are recognized as components of public order. compliance, freedom of contract, compliance with measures of civil liability in relation to the offense.

Obviously, they can be used as a reference when deciding a relevant question.

Based on the results of the consideration of the case on the recognition and enforcement of a foreign decision, the court issues a decision in the form of a determination according to the rules established for the decision.

It should indicate the established factual circumstances of the case; the evidence on which the court's conclusions about the circumstances of the case are based, and the arguments in favor of the final judgment in the case; the grounds on which the court rejected certain evidence, accepted or rejected the substantiation of its claims and objections the arguments of the persons involved in the case; the laws and other normative legal acts that the court was guided by in adopting the determination, and the reasons why the court did not apply the laws and other normative legal acts referred to by the persons involved in the case.

Enforcement of a decision of a foreign court is carried out on the basis of a writ of execution issued by the court that considered the case for its recognition and enforcement; a different procedure may be established by international treaties.

Currently, in Ukraine, including in judicial practice, the question is increasingly raised about the possibility of expanding the range of decisions of foreign courts recognized and enforced, due to the admissibility of execution and in the presence of reciprocity (in the absence of an international treaty).

This decision shows Ukraine's desire to develop international economic and legal cooperation.

This is also in line with the interests of foreign economic operators.

By executing foreign rulings, we get the opportunity to execute the decisions of our courts abroad on reciprocal terms.

Thank you for your attention!

‍

Criminal prosecution and counteraction
Cybercrime in Ukraine

Speaker
judge of Kyiv Court of Appeal (Ukraine)
Rosick T.

In the age of information technology, it is impossible to feel safe in cyberspace. With the development of technology, the number of crimes in this area is rapidly increasing, and therefore it can be confidently asserted that it is “cybercrimes” in the 21st century that will be among the most numerous.

In Ukraine, as in the whole world, tens of thousands of crimes are committed every year using information and communication technologies, software, software and hardware, other technical and technological means and equipment. Every day, people and companies steal personal data, funds from accounts, collect a lot of confidential and commercial information, block activities, etc. However, the success of preventing such crimes, exposing them and bringing perpetrators to justice is currently quite rare when compared to the number of such offences.

Every year, cybercrime causes great harm to states and individuals. At the 73rd session of the UN General Assembly, Secretary-General Antonio Gutterres estimated the annual losses from cybercrime in the world at $1.5 trillion. Unfortunately, the predictions of cybersecurity experts are disappointing. In the future, the number of crimes and losses from cyberattacks will only increase, because usually offenders are at least one step ahead of the mechanisms that public authorities and private individuals have to prevent and detect such crimes.

Ukraine, like all countries of the world, faces challenges in the field of cybersecurity every day. In the past few years alone, government agencies have been repeatedly attacked from cyberspace. One of these attacks was the launch on June 27, 2017 of a variety of Petya virus, which caused disruption of the operation of Ukrainian state-owned enterprises, institutions, banks, media and others. As a result of the attack, the activities of such enterprises as Boryspil Airport, Chernobyl, Ukrtelecom, Ukrposhta, Oschadbank, Ukrzaliznytsia and many other large enterprises were blocked. The information systems of the Ministry of Infrastructure, the Cabinet of Ministers, the websites of the Lviv City Council, the Kyiv City State Administration, the cyber police and the special communications service of Ukraine were also infected.

In Ukraine, at the legislative level, relevant laws and regulations are adopted that regulate relations in this area. As of the beginning of 2019, the legal basis of cyber security of Ukraine includes the following regulatory legal acts: the Constitution of Ukraine, the Criminal Code of Ukraine, the laws of Ukraine “On the basic principles of cybersecurity of Ukraine”, “On information”, “On the protection of information in information and telecommunications systems”, “On the basics of national security” and other laws, the Doctrine of Information Security of Ukraine, the Council of Europe Convention on Cybercrime and other international treaties, the consent to which is given by the Verkhovna Rada of Ukraine.

According to Ukrainian legislation, cybersecurity is the protection of vital interests of a person and citizen, society and the state in the process of using cyberspace, which ensures the sustainable development of the information society and digital communication environment, timely detection, prevention and neutralization of real and potential threats to the national security of Ukraine in cyberspace (Art. 5 Part 1 of Art. 1 of the Law of Ukraine “On the basic principles of ensuring cybersecurity of Ukraine”). In a global sense, cybersecurity is the implementation of measures to protect networks, software products and systems from digital attacks.

According to the Convention on Cybercrime, which has been part of Ukrainian legislation since 11.10.2005, cybercrimes are conditionally divided into four types. The first type includes violations against the confidentiality, integrity and availability of computer data and systems. This type of cybercrime includes all crimes directed against computer systems and data (for example, intentional access to a computer system or parts thereof; intentional damage, destruction, deterioration, alteration or concealment of computer information; intentional commission without the right to do so, manufacture, sale, purchase for use, distribution, or provision for other use of devices, including computer programs).

The second type of cybercrime includes offenses related to computers. Such crimes are characterized by a deliberate act that results in the loss of another person's property by any introduction, alteration, destruction or concealment of computer data or any interference with the functioning of a computer system, with the fraudulent or dishonest purpose of obtaining, without having the right to do so, economic advantages for oneself or another person.

The third type of cybercrime covers offenses related to content (content), consisting in the commission of deliberate illegal actions to produce, offer or provide access, distribution of child pornography, as well as possession of such files in its system.

The fourth type is intentional actions related to the violation of copyright and related rights, in accordance with the requirements of the Berne Convention on the Protection of Literary and Artistic Works, the Agreement on Trade Aspects of Intellectual Property Rights and the WIPO Copyright Agreement, as well as the national legislation of Ukraine.

There are also other classifications of cybercrime, but the one proposed by the convention is the most popular.

In Ukraine, cybersecurity policy is entrusted to a number of state bodies, namely the State Service of Special Communications and Information Protection of Ukraine, the National Police of Ukraine, the Security Service of Ukraine, the Ministry of Defense of Ukraine and the General Staff of the Armed Forces of Ukraine, intelligence agencies, the National Bank of Ukraine. In each of these bodies, the corresponding units operate.

According to the head of the Department of Cyberpolice, every year the number of cybercrimes in Ukraine increases by an average of 2.5 thousand. According to a report on the website of this law enforcement agency, in 2018, employees of the Cyber Police Department were involved in the investigation of more than 11,000 criminal proceedings committed in the field of high information technologies.

The main articles of the Criminal Code of Ukraine, according to which cybercrimes in Ukraine are investigated:

— Art. 176 “Violation of copyright and related rights”;

— Art. 190 “Fraud”;

- Art. 361 “Unauthorised interference in the operation of electronic computers (computers), automated systems, computer networks or telecommunication networks”;

- Art. 361^-1“Creation for the purpose of using, distributing or marketing malicious software or technical means, as well as their distribution or marketing”;

- Art. 361^-2“Unauthorized sale or distribution of information with restricted access stored in electronic computers (computers), automated systems, computer networks or media of such information”;

- Art. 362 “Stealing, appropriating, extorting, or possessing computer information by fraud or abuse of office”;

— Art. 363 “Violation of the rules of operation of automated electronic computing systems”;

- Art. 363^{! 1}“Obstruction of the operation of electronic computers (computers), automated systems, computer networks or telecommunication networks by the mass distribution of telecommunications messages”.

The Unified State Register of Court Decisions contains a certain number of court decisions made on the basis of the results of consideration of criminal proceedings. The register contains the verdicts under these articles, as well as the decisions of the investigating judges on criminal proceedings, which are currently under the proceedings of the pre-trial investigation bodies. Therefore, it can be argued that Ukraine is fighting cybercrime.

The analysis of judicial practice shows that cybercrimes such as unauthorized interference in the operation of automated systems, fraud using electronic computer technology, distribution of pornographic video products in cyberspace and other illegal operations using electronic computing are common in Ukraine today. construction equipment.

That is, cyberterrorism has not yet acquired a significant scale in Ukraine, but recent negative trends indicate the need to move the legal regulation of the fight against cybercrime to the next stage.

As for examples of domestic judicial practice:

Shnovchenkivskyi district court of the city. On March 21, 2018, the case of unauthorized interference in the operation of automated systems, in particular an ATM, was considered in Kyiv. The attackers installed two unauthorized devices, which have the conditional name “ATM overlay” and are intended for hidden placement at the ATM in order to obtain information from the magnetic tapes of users' bank cards and make a video recording of their operations on the digital keyboard of the ATM, which led to penetration the introduction into the automated system of the specified ATM and the leakage of information of 45 clients of the above-mentioned banking institution, which contained information from magnetic tapes of cards and pincodes of bank customers.

Cases of fraud using electronic computer technology are common today. Thus, on May 22, 2019, the May Day District Court of the city of Chernivtsi issued a verdict on the commission of a number of actions aimed at preparing and implementing fraud for selfish motives. The attacker posted on the Internet\ an announcement about renting a room, knowing for sure that she did not have housing at the specified address and she did not intend to rent a room. The person informed the victim knowingly false information, and received a sum of money as a deposit. In this case, the crime was qualified under Article 190 of the Criminal Code of Ukraine. In this case, the legislator did not separate fraud with the help of electronic computing, but in this case, the fact of seizing someone else's property by deception plays a fundamental role. Therefore, despite the existing signs of cybercrime, such offenses should be classified as fraud.

The next example is the verdict of the Lenin District Court of the city of Kropyvnytskyi. The offender was charged with distributing pornographic video products through the website “http://vk.com” despite the fact that this crime was qualified under Articles 300 and 301 of the Criminal Code of Ukraine, namely the import, manufacture, sale and distribution of pornographic objects and works promoting the cult of violence and cruelty, racial, national or religious intolerance and discrimination, this offense still has clear signs of cybercrime, because its perpetration is linked to the World Wide Web.

Therefore, despite the fact that some of the offenses that contain signs of cybercrimes do not qualify as recent, the legislator still carries out at the proper level the legal regulation of those threats that are relevant today. At the same time, recent trends indicate that in the future the existing mechanism needs significant improvement in the light of recent challenges. So, at the present stage, the legal regulation of the fight against cybercrime in Ukraine can be characterized by the following features:

1) ratification of international legal acts;

2) Ukraine's course towards European integration predisposes the need to further bring domestic legislation into line with European standards;

3) the emergence of a tendency to increase the threat of cyberterrorism in Ukraine;

4) proper legal regulation of cyber threats, which are currently the most common in Ukraine.

‍