: UPDATE: A Research Guide to Ukrainian Law
By Alexander Biryukov & Myroslava Kryvonos
Myroslava Kryvonos has been a librarian at the Legal Library of the Ukrainian Legal Foundation in Kyiv, Ukraine. In 2002 she received a grant from the Bureau of Educational and Cultural Affairs (ECA), U.S. Department of State under the Freedom Support Act (FSA) and completed a four months fellowship at the New York University Law Library. In 1971 she graduated from the Kyiv State University and holds the diploma of a specialist in the automatic processing of language information from this University.
Published April 2008
Note: In the system of state authority bodies the Parliament of Ukraine is named the Verkhovna Rada and the Government - the Cabinet of Ministers.
I. Introduction
III. The Autonomous Republic of Crimea
V. The Foundation and Division of State Power
VI. The Procuracy
VII. The Lawmaking
VIII. Ukrainian Legislation
IX. The Sources of Ukrainian Law and the Hierarchy of Legal Acts
X. The Main Areas of Ukrainian Legislation
XI. Legal Profession
XII. Legal Education and Science in Ukraine
XIII. Access to Legal Materials
XIV. Legal Citation
XV. Legal Publishers
XVI. Legal Services
XVII. Other Legal Related Sources
Ukraine is one of the largest countries in Europe. In sheer size, it is comparable to France. It is worth mentioning that the geographical center of Europe is situated in Ukraine.
Currently Ukraine is in the process of transformation from a command to a free-market economy and democracy. The law and legal system are also subject to deep and complex changes. Since its independence Ukraine has made good progress in the creation of new legislation, ensuring human rights and freedoms, and building new economic relations.
On its way to incorporate international legal standards in its domestic legislation and make it consistent with international norms Ukraine adopted in 1996 new Constitution and market-oriented laws.
Having become a member of the Council of Europe in 1995, Ukraine began to work toward improving its legislation in regards of human rights protection, and to implement legal and judicial reform.
The development of Ukrainian legal system has been significantly influenced by the declared European integration of the country. Ukraine is currently in the process of adapting its legislation to European norms and standards with a goal to acquire full membership to the European Union.
Nowadays, one the most important tasks are the country accession to the WTO and EU integration which requires the adoption of a number of appropriate laws.
The Orange Revolution of 2004 gave a new impulse not only for internal developments, but also for the democratization of other countries of the Region. The Year of 2005 was the first year of Mr Victor Yuschenko's presidency and Orange Government, and the year of big social hopes which unfortunately brought disappointments. That was also a year of losing possibilities. The Year of 2006 is featured with coming into force the latest changes to the Constitution, the Parliament elections, the first big contradictions between the President and the Cabinet of Ministries, and a practical absence of acting Constitutional Court.
Ukraine is a republic with a presidential form of government[ii]. But the new constitutional reform, which came into force on January 1, 2006, introduces the changes to the governmental structure from mixed presidential-parliamentary into a parliamentary-presidential form of government[iii]. The formation of the Verkhovna Rada was made on the basis of pure proportional system of national deputies election delegated by political parties with further existence of the President, the Verkhovna Rada, and the Cabinet of Ministries in a new legal environment. Observers say that those changes brought the dis-balance to the state power. Practically immediately the development of new changes to the Constitution was initiated that that made the existing Constitution a temporality document. Since that time the new Constitutional reform is on agenda again.
Ukraine is a unitary state[iv] with the Autonomous Republic of Crimea in its administrative structure. The Autonomous Republic of Crimea is an inseparable constituent part of Ukraine and decides on the issues ascribed to its competence within the limits of authority determined by the Constitution of Ukraine[v].
The Autonomous Republic of Crimea has its own Constitution that is adopted by the Verkhovna Rada of the Autonomous Republic and approved by the Verkhovna Rada of Ukraine. Normative legal acts of the Verkhovna Rada and decisions of the Council of Ministers of the Autonomous Republic of Crimea shall not contradict the Constitution and other laws of Ukraine.
When nonconformity of the normative legal acts of the Autonomous Republic of Crimea with the Constitution of Ukraine and other laws of Ukraine occurs, the President of Ukraine may suspend those normative legal acts with a simultaneous appeal to the Constitutional Court of Ukraine in regard to their constitutionality.
The people are the bearers of sovereignty and the only source of power in Ukraine. The people exercise power directly and through bodies of state power and local self-government. The right to determine and change the constitutional order in Ukraine belongs exclusively to the people and shall not be usurped by the State, its bodies or officials[vi].
The expression of the will of the people is exercised through elections, referendums and other political forms of democracy. Citizens of Ukraine, who have attained the age of eighteen on the day of the elections and referendums, have the right to vote at the elections and referendums[vii].
The state power in Ukraine is exercised in accordance with the principles of its division into legislative, executive and judicial branches[viii]. This division, however, is still being developed.
Legislative Power
The sole body of legislative power in Ukraine is the Verkhovna Rada. Its constitutional composition contains 450 National Deputies elected for a five-year term.
The Parliament has exclusive rights to:
After constitutional reform the Verkhovna Rada has broader powers, particularly in forming the Government. A new player appeared in the course of latest Constitutional changes - Parliament fractions coalition. There were two coalitions - Anti-crisis and Democratic ones, which were formed since the latest changes to Constitution came into force.
The violation of the provisions of the Constitution regarding formation of the coalition became the legal basis for issuing a decree by the President on Resignation of the Verkhovna Rada in April 2007 and appointment new parliamentary elections. The Anti-crisis coalition recruited national deputies to join individually the coalition that was legally formed by three Parliament fractions in order to receive qualification majority in 300 votes.
The Executive Power
According to the Constitution of Ukraine, the President of Ukraine is the head of State and acts in its name.
The President:
After January 1, 2006 some powers of the President are transferred to the Verkhovna Rada and the Cabinet of Ministers.
The Cabinet of Ministers of Ukraine is the highest body in the system of state agencies that form the executive branch of power and includes the Prime Minister, the First Vice Prime Minister, Vice Prime Ministers and Ministers.
According to the changes to the Constitution in forces the Prime Minister is appointed by the Parliament of Ukraine and is responsible for the formation of the Government.
The Cabinet of Ministers:
At the end of 2006 the Verkhovna Rada adopted the new Law on the Cabinet of Ministries of Ukraine that invoked critics as is not in line with the Constitution. The President used his right to veto but the Verkhovna Rada of Ukraine overruled it.
The main ministries are as follows:
Since 2005 there were four Cabinets of Ministries: the Cabinets of Ministries of Yulia Timoshenko, Yuriy Yekhanurov, Victor Yanukovich and again Yulia Timoshenko.
The executive power in oblasts (24 administrative units), districts, and in the cities of Kyiv and Sevastopol is executed by local state administrations. They ensure on their respective territory fulfillment of the laws and other normative acts, and legal order[xi].
The Judicial System
Justice in Ukraine is administered exclusively by courts. According to the Constitution, courts constitute a self-sufficient authority functioning independently of other bodies or officials. The jurisdiction of courts extends to all relations that arise in the State. Judicial proceedings are performed by the Constitutional Court of Ukraine and courts of general jurisdiction[xii].
The Constitutional Court of Ukraine is the sole body of constitutional jurisdiction. It decides on the issues of conformity of laws and other legal acts of the Verkhovna Rada, acts of the President and the Cabinet of Ministers with the Constitution and provides the official interpretation of the Constitution and laws.
The Constitutional Court is composed of eighteen judges. The President of Ukraine, the Verkhovna Rada of Ukraine and the Congress of Judges of Ukraine each appoint six judges to it.
The Constitutional Court adopts decisions that are mandatory for execution throughout the territory of the country, are final and shall not be appealed. Laws and other legal acts, or their separate provisions, that are deemed to be unconstitutional, lose legal force.
The system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialization. In accordance with the Constitution and the Law On the Judicial System of Ukraine as amended, it includes local courts, courts of appeal, the specialized courts with their highest judicial bodies, and the Supreme Court of Ukraine. These courts administer civil, criminal, administrative and commercial matters.
The Supreme Court is the highest judicial body in the system of courts of general jurisdiction.
The following types of courts belong to the courts of general jurisdiction:
· local courts,
· courts of appeal,
· the Supreme Court of Ukraine as a cassation court (Court of Review), and
· higher specialized courts.
Higher judicial bodies of specialized courts are the Higher Economic Court of Ukraine and Higher Administrative Court of Ukraine. The system of administrative courts is still under creation. It is going be 27 circuit courts and appellate courts with total number of 281 judges.
Currently there are about 700 courts with around 6,000 judges in Ukraine.
The court proceedings are administered in Ukraine according to the Civil Procedural Code of Ukraine, Economic Procedural Code of Ukraine and the Code of Administrative Adjudication of Ukraine depending on jurisdiction.
The creation of extraordinary and special courts is not permitted.
Currently the reform of judicial system is going on. The National Commission for the Strengthening of Democracy and Rule of Law established according to the Presidential Decree dated 5 July 2005 plays the key role in it. A new draft of the Law on Judiciary and Status of Judges developed by mentioned institution is under discussion.
In 2007 the Extraordinary VIII Congress of Judges was held resulted in a number of important decisions among which was a Petition addressed to all judges to pursue judicial reform and to be more active in these processes through increasing judicial self-governance.
The Law on Access to Court Decisions adopted on 22 December 2005 supposed to play a special role in making judiciary more open. According to this law all court decisions are posted on the Internet at the address: www.reyestr.court.gov.ua. The State Judicial Administration of Ukraine is an Administrator of the state registry. Implementation of this law provisions is still under way - up to now not all local courts regularly post their decisions of the Internet.
The Constitution envisages that the Procuracy of Ukraine constitutes a unified system, the main goals of which are the representation of interests of individuals and the State in courts and the supervision of laws implementation by state bodies. In addition, the Procuracy has the power to conduct pre-trial investigation in a number of cases[xiii].
The Procuracy of Ukraine is headed by the Procurator General, who is appointed to office with the consent of the Verkhovna Rada, and dismissed from office by the President of Ukraine. The organization and operational procedure for the bodies of the Procuracy are determined by the law of Ukraine On Procuracy adopted on November 5, 1991.
The legal community in Ukraine quite actively discusses the place and the role of Procuracy within the system of state bodies.
The right to adopt laws in Ukraine belongs to the Verkhovna Rada. They have the highest legal force in the state. The Article 92 of the Constitution points out the areas where the relations are governed exclusively by the laws of Ukraine.
According to the Constitution of Ukraine as amended, the President of Ukraine, National Deputies of Ukraine and the Cabinet of Ministries of Ukraine have the rights of the legislative initiative[xiv].
The law adopted by the Verkhovna Rada goes to the President for signing. The President signs or returns it with his/her propositions for repeated consideration. The Verkhovna Rada may overrule the President's veto by ¾ voters of the National Deputies list.
The law comes into force ten days after its official publication, if not otherwise stipulated in the law itself.
Ukrainian legal system by its nature belongs to the Romano-Germanic legal family (the continental law system). This means that it is based on a pandect system, where the main legislation sources are codified laws. It also has a well structured hierarchy of normative acts.
Normative legal acts in Ukraine have different legal validity depending on the law-making subject and the state body which issues it.
The year 2003 was marked by the completion of the civil legislation reform - the new Civil Code that is based on the market principles was adopted on January 16, 2003 and came into force from January 1, 2004. Furthermore, the Economic Code was adopted along with the Civil Code, which also regulates private relations and defines the role of the State in the business. It is worth mentioning that the Economic Code reflects the Soviet-type rules and regulates the private relations in the other way than the Civil Code does and therefore contradicts with the provisions of the new Civil Code[xv].
The principal source of Ukrainian law is the Constitution, having the highest legal force. The rule of law is recognized by the Constitution. Appeals to the court in defense of the constitutional rights and freedoms of individuals are guaranteed directly by the Constitution.
The provisions of the Constitution of Ukraine are norms of a direct effect. Laws and other normative legal acts should be adopted on its basis and conform to it.
Codified Laws
As Ukrainian legal system is code-based there are a number of codified laws in the main spheres of national legislation. Among such codes the main ones are the following: the Civil Code, the Economic Code, the Criminal Code, the Land Code, the Family Code, the Customs Code, the Code of Civil Procedure, the Code of Criminal Procedure, the Labor Code, the Air Code, etc.
Laws
Only the Verkhovna Rada is entitled to issue normative acts in the form of laws. They are the highest normative acts in Ukraine.
The number of laws increases constantly, which creates the problem of contradictions between them. The imperfectness of Ukrainian legislation lies in its instability, overregulation, complexity of norms etc.
Secondary Legislation
The next layer of Ukrainian legislation is secondary legislation. Different normative acts in the form of decrees, resolutions, orders etc. issued by the President, the Cabinet of Ministers, the National Bank, ministries and other state agencies are adopted on the basis and in realization of the general provisions of laws.
The President of Ukraine issues decrees (ukazy) and directives (rozporiadzhennia).
The Cabinet of Ministers of Ukraine, within the limits of its competence, issues resolutions (postanovy) and directives (rozporiadzhennia). All the documents produced by the highest state bodies are mandatory for execution by every person on the territory of Ukraine.
In pursuance of the laws of Ukraine, the ministries, state agencies and committees issue resolutions, directives, regulations, instructions and orders that concern their specific sphere of competence.
All these normative legal acts and international treaties of Ukraine are registered at the Ministry of Justice of Ukraine.
Local state administrations and bodies of local self-government issue resolutions, orders, decisions etc. to ensure the observance of laws and freedoms of citizens, and the implementation of development programs and regional budgets.
Ukraine carries out foreign policy activity. It is a member to different international organizations and agreements. Ukraine was one of the founding members of the United Nations. International treaties come into force on the consent of the Verkhovna Rada of Ukraine to be binding. Since that moment they become an important part of the national legislation. The conclusion of international treaties that contravene the Constitution of Ukraine is possible only after introducing relevant amendments to the Constitution[xvi].
The acts of the official interpretation as well as court decisions are not formally the source of laws but they are taken into consideration when a certain case is administered in lower courts.
The Ukrainian legislative system is based on the systematically organized legal rules (norms) which are combined to constitute different legal areas - spheres of regulation.
In accordance with the system applied in Ukraine, large law areas are defined in the national legislation.
Constitutional Law
Constitutional law comprises the norms devoted to the political and state system, human rights, freedoms and duties of citizens, legal status of the Verkhovna Rada, the President, the Cabinet of Ministers, other central state bodies and local authorities, the Procuracy, the judiciary, territorial structure, state symbols etc. The main source of constitutional law is the Constitution.
Administrative Law
Administrative law combines the legal rules that deal with relations between the state bodies and persons. It is quite a new area of legal regulation.
The newest invention is the system of the administrative courts, which are governed by rules set up in the Code of Administrative Adjudication of Ukraine.
Criminal Law
Criminal law includes the legal rules defining crimes, forms of guilt, punishment, discharge or mitigation. The Criminal Code of Ukraine came into force from September 1, 2001.
The main change in the new Criminal Code is the replacement of the death penalty by perpetual imprisonment. It also envisages such new types of punishment such as public work, arrest, deprivation of liberty, and official restrictions for persons on military service.
Economic crimes in Ukraine are defined in a separate chapter "Crimes in Economic Sphere" of the Criminal Code of Ukraine.
Procedural Criminal Law
Procedural criminal law relates to the commencement of criminal proceedings, investigation, and court examination in criminal cases. The Criminal Procedural Code administers these procedures. The draft of the new Criminal Procedural Code is waiting for its review and adoption at the Verkhovna Rada already for several years.
Civil Procedure
Civil procedure includes the legal rules governing the procedure of the court consideration and solving the disputes and the enforcement of writs. This legal field is governed by the Civil Procedural Code of Ukraine.
Competition Regulation
Competition legislation of Ukraine is based on two main laws.
The Law of Ukraine On Protection of Economic Competition of 2001 sets forth the unified rules of competition and defines the measures for the restriction of monopolism in the field of business.
The Law of Ukraine On Protection from Unfair Competition adopted in 1996 establishes the fundamentals for the protection of business participants and consumers against unfair competition.
Financial Law
Financial law regulates issues of the state budget, banking, tax system etc. and its object of regulation includes money, securities and other financial instruments.
Formation of the financial system of Ukraine is in a permanent progress. The Budget Code was passed at the Verkhovna Rada in 2001.
The main laws in the sphere of banking regulation include the Laws of Ukraine On National Bank of Ukraine (1999) and On Banks and Banking (2000).
Securities legislation combines several laws. The main normative act that covers almost every field of securities circulation in Ukraine is the Law of Ukraine On Securities and Stock Market of 2006.
The Law of Ukraine On State Regulation of Securities Market in Ukraine of 1996 determines the framework of state regulation and control over the securities trading. The Law of Ukraine On National Depositary System and Peculiarities of Electronic Securities Circulation in Ukraine adopted 1997 sets forth the peculiarities of issuance and circulation of non-documentary securities and the infrastructure of its organization[xvii].
Insurance services are regulated by the Law of Ukraine On Insurance of 1996 (the latest version of 2001).
Civil Law
Civil law comprises provisions governing the ownership and non-property, and intellectual property rights, contracts, torts, etc.
The main act in this field of legislation is the newly adopted Civil Code. It contains six books and practically establishes a new for Ukraine system of norms to govern private relations. Taking into account the constitutional approaches to the human being and its inalienable rights, it also fixes the individual non-property rights of a person and governs relations which enforce these rights.
The other subjects of the new Civil Code are as follows: obligations, contract law, inheritance law, legal entities concept and other. The Code introduces new types of business contracts into the legal practice: factoring, franchising, and rent service or inherited contracts etc.
Matrimonial Law
Matrimonial law relates to the grounds of marriage, its solemnization and dissolution, personal ownership and non-property rights and duties of the spouses, relations between parents and children, adoption issues etc. Such rules are incorporated into the new Family Code adopted in 2002.
Law of Property
In addition to the Constitution of Ukraine, the following laws regulate the matters of property and ownership in Ukraine: the Civil Code of Ukraine of 2003 and the Land Code of Ukraine of 2001.
The Economic Code of Ukraine mimics the old Soviet-based system of regulation for property rights.
The legislation of Ukraine recognizes the following kinds of property ownership: private, community and state property. All these forms of ownership are of equal strength.
Land Property
The use and protection of landowners' rights are regulated by the Land Code of Ukraine of 2001. It is based on the principles of private ownership of land.
Intellectual Property
The intellectual property rights' protection is guaranteed by the Laws of Ukraine On Copyright and Related Rights (1993), On Distribution of Copies of Audiovisual Products and Phonograms (2000, as amended) and some others.
The Law of Ukraine On Protection of Trademarks and Service Marks of 1993 sets forth the framework for the marks of goods and services protection.
The Criminal Code of Ukraine also provides for criminal liability for the violation of the copyright and related rights.
Commercial Law
Commercial law regulates contracts-based relations and deals with conflicts between legal entities, individuals and/or a state. Economic Procedural Code envisages that commercial courts administer actions filed by the business participants regarding protection of their rights and interests.
Company Law
Several laws complementing the Civil Code and Economic Code regulate the different forms of business in Ukraine. The Law of Ukraine On Business Associations of 1991, as amended, establishes the legal forms of business associations. They are joint-stock, limited liability, additional liability, full liability, and differentiated liability companies.
The Law of Ukraine On Cooperation of 2003 determines the peculiarities of such kind of business associations as cooperatives.
Bankruptcy Legislation
The reform of bankruptcy legislation in Ukraine was finished by adoption in 1999 of the Law On Restoration of Debtor's Solvency or Declaring Debtor Bankrupt. This new bankruptcy law is based on a new concept that is much more known in Western countries. But the reform of this area of the legislation is still under way[xviii]. The Verkhovna Rada of Ukraine adopted 27 laws amending this law.
Legislation on Pledge
Pledge relationships are governed by the Law of Ukraine On Pledge of 1992, as amended. According to this law the subject matter of a pledge are property and property rights, which may become the pledgor's ownership after a pledge agreement is concluded.
Investment Legislation
Investment activity in Ukraine is governed by two basic laws that form this specific sphere of the legislation.
The Law of Ukraine On Investment Activity, which was adopted in 1991, sets forth the general principles of investing in Ukraine including the forms of investments.
The Law of Ukraine On Regime of Foreign Investing of 1996 provides with specifics of investing in Ukraine by foreign persons and international institutions.
Labor Law
Labor law includes the legal rules combined in the Labor Code of 2001 that governs the matters of the labor contracts, working hours, holidays and rest days, safety at the working place, wages, sick leave, social protection, the labor disputes resolution, as well as basics of trade union activity.
Taxation Legislation
Ukrainian system of taxation is governed by the Law of Ukraine On the Taxation System of 1991, as amended. This Law defines the taxation principles applied in Ukraine and provides for a list of taxes and other compulsory payments to the state and local budgets.
Legal profession combines legal practitioners and scholars, members of the judiciary, the bar and the procuracy officers, criminal trial lawyers, notaries, jurists and counsels (legal advisors of private, public, state and municipal enterprises, establishments and organizations) etc.
The Academy of Legal Sciences was established in 1993. It is a national scientific organization, which carries out the fundamental investigations, and coordinates, organizes and fulfils applied works in the field of state and law. The academicians and known scientists are the members of the Academy.
The Union of Lawyers of Ukraine carries out lawmaking, scientific, methodological, educational and informative activities with the aim of promoting the lawyers of Ukraine in their professional and social interests protection, their public activities and participation in the state policy development.
The Ukrainian Bar Association unites lawyers from all spheres of legal profession with the aim of protecting their professional and other common interests, developing the legal profession, and developing a rule-of-law state in Ukraine.
The Union of Advocates of Ukraine is an independent and self-governed civic all-Ukrainian organization of Ukrainian advocates. It is aimed at promoting the role and authority of the Bar in this society and the state, the true independence and self-regulation of the Bar and promotion of the democratic state building in Ukraine.
The Ukrainian Association of Prosecutors has a purpose to protect legal rights and interests of its members who worked/work in the Procuracy and support of the Procuracy and prosecutors' positive image in Ukraine and abroad, promotion of the implementation of the Procuracy's tasks.
The Ukrainian Notarial Chamber is a civic organization which supports its members in their professional activities, makes efforts to improve notary system and participates in the law-making processes.
The Ukrainian branch of the European Law Students' Association - ELSA Ukraine is comprised of students and recent graduates of the Ukrainian law education establishments who are interested in law and have demonstrated commitment to international issues.
Requirements to the contents, scope and level of the educational and professional training in Ukraine are determined by the Law of Ukraine On Education of 1991. The Law establishes a four level system of high education and defines qualification's requirements for junior specialists and bachelor degree holders (basic higher education), specialists and master degree holders (complete higher education). The educational system, its legislative base, educational establishments and issues on the education of foreigners in Ukraine are presented on this website, created by the Ministry of Education and Science of Ukraine with the support of other institutions.
Legal education is built in accordance with these principles and is provided for by the state and private colleges and universities. The system of legal education includes high legal education, postgraduate education, Candidate's and Doctor's Degree education.
As the legal professions becomes very prestigious and much in demand, a large network of specialized educational institutions and faculties was established in Ukraine during last years. Traditionally, universities include law faculties or affiliated specialized institutes/colleges, for example:
· Kyiv National Taras Shevchenko National University Law Faculty;
· National University of Kyiv-Mohyla Academy Faculty of Law;
· Lviv National University Law Faculty;
· Law Faculty of the University of Economics and Law "KROK";
· International Solomon University Faculty of Law;
· Kyiv International University Law Faculty;
· Vernadskiy Tavricheskiy National University Law Faculty (Simferopol, Autonomous Republic of Crimea);
· Donetsk National University Faculty of Economics and Law;
· Kyiv National Economic University Law Faculty;
· Faculty of Economics, Management and Law of the Kyiv National University of Trade and Economics;
· Law Institute at the Inter-regional Academy of Personnel Management
In Ukraine different academies and institutes are also established for training their students to work in particular legal areas or for raising the level of lawyers' skills:
· Kyiv Law University of the National Academy of Sciences of Ukraine trains specialists for state and law-enforcement agencies, and for scientific and market economy spheres;
· The Bar Academy of Ukraine trains barristers and improves their qualifications, and does researches in the sphere of bar activities;
· The National State Tax Service Academy of Ukraine is a base educational institution of the State tax service of Ukraine;
· The Institute of International Relations of Kyiv Taras Shevchenko University is the leading centre of training specialists in the field of international law;
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