On October 14, 2022, the judge of the court chamber for consideration of cases related to land relations and property rights of the Commercial Court of Cassation as part of the Supreme Court, Vitaly Urkevych, gave a lecture "Evidence and proof in the economic process in the conditions of martial law in the practice of the Supreme Court" as part of a legal workshop organized by the legal journal "Law of Ukraine" and the legal portal "Ratio Decidendi".
The Speaker reminded that the collection of evidence in economic cases is not the duty of the court, except for cases defined by the Code of Criminal Procedure of Ukraine. According to Part 1 of Art. 73 of this Code, evidence is any data on the basis of which the court establishes the presence or absence of circumstances (facts) that justify the claims and objections of the parties to the case, and other circumstances that are important for the resolution of the case. These data are established, in particular, on the basis of written, material and electronic evidence in accordance with part 2 of the above norm (resolution of the Supreme Court of the Supreme Court of June 10, 2019 in case No. 903/581/18). This resolution also states that the evidence that the parties to the case provide to the court must meet the criteria defined in Articles 76–79 of the Civil Procedure Code of Ukraine (as amended at the time of the case):
– ownership (resolution of the Supreme Court of the Supreme Administrative Court of November 15, 2019 in case No. 909/887/18);
– admissibility (resolution of the Supreme Administrative Court of Ukraine dated December 5, 2018 in case No. 916/1813/16);
– authenticity (the resolution of the KGS of the Supreme Court of October 21, 2020 in case No. 925/594/18);
– sufficiency.
At the same time, Vitaliy Urkevich noted that now the concept of "sufficiency of evidence" has been replaced by a relatively new standard of proof for the business process – the reliability of evidence (Article 79 of the Code of Criminal Procedure of Ukraine, set out in the new version according to the Law of Ukraine dated September 20, 2019 No. 132-IX, which entered into force on October 17, 2019). The new edition of this article stipulates that:
1) the existence of a circumstance that a party refers to as the basis of its claims or objections is considered proven if the evidence provided to confirm such a circumstance is more likely than the evidence provided to refute it;
2) the court decides the question of the reliability of the evidence to establish the circumstances relevant to the case in accordance with its internal conviction.
The standard of proving the reliability of the evidence, as opposed to the sufficiency of the evidence, emphasizes the need for the court to compare the evidence provided by the plaintiff and the defendant (the decision of the Supreme Court of Justice of the Supreme Court of June 25, 2020 in case No. 924/233/18). That is, according to the judge of the KGS of the Supreme Court, with the introduction of the new standard of proof, it is necessary to provide not enough evidence to confirm a certain circumstance, namely, the amount of them that can outweigh the arguments of the opposite side of the court process.
The speaker emphasized that the Supreme Court, during the cassation review of court decisions, repeatedly referred to the category of the standard of proof in general and noted that the principle of adversariality ensures the completeness of the investigation of the circumstances of the case. This principle provides for placing the burden of proof on the parties. In addition, it does not determine the court's obligation to consider the fact that the party claims to be proven and established. Such a circumstance must be proven in such a way as to satisfy, as a rule, the standard of the preponderance of more weighty evidence, that is, when the conclusion about the existence of the asserted circumstance, taking into account the evidence provided, seems more probable than the opposite (resolution of the Supreme Court of the Supreme Court of October 2, 2018 in case No. 910/18036 /17, dated October 23, 2019 in case No. 917/1307/18, dated November 18, 2019 in case No. 902/761/18 and dated December 4, 2019 in case No. 917/2101/17).
In addition, on the example of court cases, the lecturer analyzed certain types of evidence in the economic process:
– written evidence (resolutions of the KGS of the Supreme Court of February 19, 2020 in case No. 915/411/19 and of March 19, 2019 in case No. 925/1027/15);
– electronic evidence (the resolution of the joint chamber of the Supreme Court of Ukraine dated July 15, 2022 in case No. 914/1003/21 and the resolution of the Supreme Court of Ukraine of November 27, 2018 in case No. 914/12505/17, dated March 16, 2020 in case No. 910/1162/19, dated October 13, 2021 in case No. 923/1379/20, dated August 3, 2022 in case No. 910/5408/21);
– the conclusion of the forensic examination (expert) (resolutions of the Supreme Court of Justice of February 12, 2020 in case No. 910/21067/17, of February 12, 2019 in case No. 914/908/18 and of August 21, 2019 in case No. 910/4292 /13).
Separately, the judge focused on the procedures for the submission of evidence by the participants in the case and the demand for evidence by the court (resolutions of the Supreme Court of Justice of July 4, 2019 in case No. 908/1932/18, dated March 5, 2020 in case No. 910/1584/19, dated April 14, 2019 in case No. 910/6381/18 and from August 7, 2019 in case No. 910/29116/14), as well as on the acceptance of evidence by the appellate court (resolutions of the Supreme Court of Justice of July 28, 2020 in case No. 904/2104/19, dated July 23, 2019 in case No. 917/2034/17 and dated May 28, 2019 in case No. 925/859/16).
Regarding the evaluation by the court of evidence in the economic process, Vitaliy Urkevich noted that the evidence submitted to the economic court is subject to evaluation in accordance with Art. 86 of the Civil Procedure Code of Ukraine (as amended at the time of the case), according to which the court evaluates the evidence based on its internal conviction, which is based on a comprehensive, complete, objective and direct examination of the evidence available in the case. According to the speaker, the court assesses the propriety, admissibility, and credibility of each piece of evidence separately, as well as the sufficiency and interrelationship of the pieces of evidence as a whole. The court assesses both the evidence collected in the case in general and each piece of evidence contained in the case, motivates the rejection or consideration of each piece of evidence (Decision of the Supreme Court of the Supreme Court of December 14, 2018 in case No. 914/809/18). The court is also obliged to observe the principle of evaluation of evidence. According to this principle, the court, on the basis of a comprehensive, complete and objective consideration of the case, analyzes and evaluates the evidence (both individually and in their totality) in relation to each other, unity and contradiction. Such an assessment should be aimed at establishing the credibility or absence of circumstances that substantiate the arguments and objections of the parties (resolution of the Supreme Court of the Supreme Court of January 28, 2020 in case No. 910/6981/19).
During the lecture, the judge, among other things, analyzed current judicial practice regarding:
– of well-known circumstances (the decision of the Supreme Court of the Supreme Court of Ukraine dated June 19, 2018 in case No. 922/3946/16);
– prejudicial circumstances (resolutions of the Supreme Administrative Court of Ukraine dated January 28, 2020 in case No. 917/31335/18 and dated March 20, 2020 in case No. 910/2360/19);
– newly discovered circumstances (resolution of the Supreme Administrative Court of Ukraine dated March 10, 2020 in case No. 921/96/18);
– evaluation by the economic court of the conclusion of the forensic examination (expert) (resolution of the Supreme Court of the Supreme Court of January 23, 2020 in case No. 918/36/19);
– court evaluations of evidence regarding the validity of the reasons for missing procedural terms in the conditions of martial law (resolutions of the KGS of the Supreme Court of August 10, 2022 in case No. 904/5314/20 (904/764/21), of August 30, 2022 in case No. 17-14 -01/1494 (925/83/21), dated September 1, 2022 in case No. 904/8456/21, dated September 7, 2022 in case No. 911/2130/21 and dated June 9, 2022 in case No. 922/ 313/20 (922/3069/21).
You can learn more about Vitaly Urkevich's presentation at the link: https://bit.ly/3MBFG4R .