“Supreme Court’s decision in “Concord” case contradicts Constitution and Human Rights Convention – lawyerThe Supreme Court’s decision in the case of “Concord” bank effectively deprives shareholders of the right to access justice.
Lawyers believe that this contradicts the Constitution of Ukraine and the European Convention on Human Rights, creating a
dangerous precedent.
”, — write: unn.ua
ContextEarlier, the courts of first and appellate instances recognized as illegal the decision of the National Bank of Ukraine to revoke the license of “Concord” bank and ordered its cancellation. The NBU and the Deposit Guarantee Fund for Individuals disagreed with these decisions and filed a cassation appeal. They demanded the cancellation of the court decisions and the closure of the proceedings.
Friends, the Supreme Court overturned two previous court decisions, by which we proved the illegality of the NBU’s actions regarding the revocation of “Concord” bank’s license. After 7 months of waiting for cassation, we received a decision that not only contradicts the law but also common sense. We were not even summoned to court. The consideration took place in written proceedings – without hearings, without arguments, without the participation of the parties
In paragraph 56 of the resolution, the panel of judges explicitly stated that no court in Ukraine is authorized to consider lawsuits filed by shareholders of banks undergoing liquidation regarding unlawful actions or decisions of the National Bank of Ukraine.
In this resolution, the Cassation Administrative Court within the Supreme Court set forth a legal conclusion that, according to the specifics of the legal regulation of the disputed legal relations, the claims of a former shareholder of an insolvent bank (in this case, a liquidated bank) are not subject to consideration either under administrative or commercial legal proceedings, and by the subjective composition of the participants in the legal relations, they do not fall under the jurisdiction of a civil court. That is, such claims are not subject to consideration by any court
DetailsDmytro Kasianenko, a lawyer at “Kasianenko and Partners” Law Firm, commented to UNN that the wording used by the Supreme Court in its decision regarding the “Concord” case indicates that the bank’s shareholders will not receive proper access to justice.
The wording “such claims are not subject to consideration by any court” means that regardless of the circumstances, arguments, or evidence, a person will not gain access to justice. This contradicts Article 55 of the Constitution of Ukraine, which guarantees everyone the right to judicial protection, as well as Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms
At the same time, according to him, the problem of unprotected rights of bank shareholders undergoing liquidation is systemic and is related to the peculiarities of legal regulation of financial institutions’ withdrawal from the market and the powers of the Deposit Guarantee Fund for Individuals.
Shareholders are not considered creditors, so their claims for capital or compensation for losses are not included in the liquidation estate and are not subject to consideration in the procedure administered by the DGF. At the same time, a direct prohibition on considering such disputes by any court turns the right to protection into a formality. This can be qualified as a legal conflict bordering on direct deprivation of the right to a fair trial
According to him, in accordance with the practice of the European Court of Human Rights (cases Zubac v. Croatia, Bellet v. France, Kreuz v. Poland), restrictions on access to court must be proportionate and justified, and the complete absence of jurisdiction for a certain category of disputes is a violation of the Convention.
Kasianenko added that in such a situation, the only theoretically possible instruments remain a lawsuit for damages caused by the actions of state authorities, or international investment arbitration involving a foreign shareholder.
However, if national courts consistently refuse to consider such claims, this will become grounds for a constitutional complaint and an appeal to the ECHR as the only effective mechanism for restoring violated rights
AddLawyers interviewed by UNN agree that the Supreme Court’s decision in the “Concord” case deprives the bank’s shareholders of access to justice.
The published legal position of the Supreme Court effectively deprives citizens and legal entities of their constitutional right to appeal to court. I can’t even believe that such a thing could be written in a decision
Former Deputy Head of the State Bureau of Investigation, lawyer Oleksandr Babikov, holds a similar opinion. He is convinced that with this decision, the panel of judges deliberately deprived the shareholders of “Concord” bank of access to justice.
Such an approach is a deliberate violation of the guaranteed right to access to justice and a fair trial. Every person has the right to have disputed legal relations resolved by an impartial court. Any other approach is merely an attempt by the state to avoid fulfilling its obligations to administer justice
RecallDespite the war in Ukraine, the process of withdrawing banks from the market has not stopped. Thus, since February 24, 2022, liquidation has been initiated for 8 banks. In 2023, for the first time in Ukraine, not only bankrupt banks but also profitable institutions fell under liquidation and license revocation – this refers to “Concord” bank. As Olena Sosedka stated, at the time the regulator announced the decision to liquidate the bank, the financial institution had enough highly liquid assets to make all necessary payments within 2-3 weeks. However, the bank liquidation process is strictly regulated by law and can generally last up to three years.