190 separate opinions in the Supreme Court's Grand Chamber cast doubt on the predictability of judicial practice – lawyers

The predictability of judicial practice, jurisdictional disputes, cassation filters, enforcement of decisions against the state, the burden of proof, features of written proceedings, and guarantees of advocacy remain some of the key challenges of administrative justice.

As noted by the Chairwoman of the National Association of Advocates of Ukraine, the Council of Advocates of Ukraine, Lidiya Izovitova, the task is not to oppose lawyers and judges, but to find ways to improve the judiciary and develop possible legislative changes. She emphasized that a number of issues have a systemic nature and require a comprehensive solution.

The first such issue is the predictability of judicial practice. Last year, the Grand Chamber of the Supreme Court adopted about 300 decisions, to which 190 separate opinions were expressed. This indicates that even the judges of the Grand Chamber may have a different position than the one stated in the decision. For lawyers and clients, this means that a position prepared taking into account stable judicial practice may lose relevance during the case consideration. The UNBA mentioned "hidden" conclusions as a separate problem. This refers to situations when the court formally states that it shares the legal position of the Supreme Court but actually takes a different approach. Because of this, even in a case where a lawyer relies on a known legal position, there remains a risk of its non-application.

The second issue is jurisdictional disputes. The Grand Chamber consistently emphasizes that the essence of the right and the nature of legal relations are decisive, not the subject of authority as a party in the process. At the same time, the number of cases in which the issue of incorrectly determined jurisdiction is resolved indicates that this issue remains difficult both for courts and for lawyers. According to the Chairwoman of the UNBA, Council of Advocates, an error in determining jurisdiction at the beginning of the case is costly for clients because the consideration may be delayed for years.

Speaking about cassation filters, the UNBA acknowledged that access to the Supreme Court and cassation review is an extraordinary procedure. At the same time, in administrative disputes where the state or an authority is a party, it is unacceptable that minor social and pension cases are effectively closed to cassation. For a person with a small pension (unlike the state), even 1,000 UAH is a significant amount.

The fourth issue named by the Chairwoman of the UNBA, Council of Advocates, is the problem of enforcement of court decisions against the state, since satisfying the claims by the court is only half the way. Achieving enforcement is difficult, fines for non-enforcement are insignificant, and criminal proceedings are initiated selectively.

The UNBA separately addressed the burden of proof. They noted that the administrative process declares a heightened standard of protection for the plaintiff, and the authority must prove the legality of its decision. However, in tax and customs cases, this burden is often effectively shifted to the plaintiff. The problem is exacerbated by the fact that a lawyer cannot always obtain the necessary documents through lawyer's requests, as authorities refer to limited access or secrecy. Even when the court requests evidence, it may arrive slowly or not on time.

Today, almost every second case is considered in writing. This saves court resources, but lawyers lose the opportunity to orally convey their position and its nuances to the court. Therefore, according to the Chairwoman of the UNBA, Council of Advocates, if the plaintiff insists on general proceedings, such motions should be granted.

In conclusion, the association emphasized guarantees of advocacy activity. According to Izovitova, lawyers cannot always fully protect the guarantees defined by the law on advocacy, the Code of Administrative Procedure, and other acts. She stressed that when a lawyer has the opportunity to present a position not only in writing but also orally, it matters for the reasonableness of the decision and the protection of the client.

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