Judges deviated from the Supreme Court's own practice when considering the case of Concord Bank – ex-judge

The decisions of the Supreme Court in the cases of “Misto Bank” and “Concord”, which are in the process of liquidation, demonstrated opposing approaches to the application of the same legal norms. While in the case of “Misto Bank” the judges considered the case on its merits and denied the shareholders’ claim, two days later in the “Concord” case, the proceedings were closed without even considering the merits. Retired judge Oleksandr Sytnykov, in a comment to UNN, noted that in this way the judges deviated from their own practice. 

ContextOn July 28, 2025, the Supreme Court, in written proceedings, considered the case of “Misto Bank” and sided with the NBU and the DGF, while acknowledging that the shareholders’ claim met the requirements of Article 266-1 of the Code of Administrative Procedure. Two days later, on July 30, the same panel of judges in a similar case of “Concord”, without assessing the case on its merits, reached the opposite conclusion – the bank shareholders’ claim does not meet the requirements of Article 266-1 of the CAP. In both cases, the same legal norm was applied, but its interpretation turned out to be diametrically different. In the case of “Concord”, the court stated that satisfying the claim would not restore the shareholder’s rights and contradicts the law, effectively depriving him of the right to a hearing in any court, while in the case of “Misto Bank”, the court considered the claim to comply with the requirements of the law. This is despite the fact that in both cases, the shareholders of banks undergoing liquidation demanded the cancellation of the National Bank’s decisions to withdraw financial institutions from the market.

It should be noted that the same judge, Semen Stetsenko, participated in the consideration of both cases. In the “Concord” case, which was considered after the “Misto Bank” case, he was also the reporting judge.

According to Olena Sosedka, co-founder of JSC “AKB “Concord”, such inconsistency and disregard for the Supreme Court’s own practice indicate the panel’s bias.

DetailsAccording to retired judge Oleksandr Sytnykov, the decisions in these two cases have different characters. But in the “Concord” case, which was considered two days later, the judges deviated from their practice. The “Misto Bank” case was considered on its merits, and the shareholders were denied their claims, and the decisions of the lower courts were overturned. In the situation with “Concord”, the judges did not even consider the case on its merits, but immediately closed the proceedings, applying the norms of special legislation. At the same time, according to the retired judge, there is no such ground for closing proceedings in a case in the Code of Administrative Procedure under which the proceedings in the “Concord” case were closed.

Perhaps, in the first case, the Supreme Court did not pay attention to these circumstances, hence such a situation. It is strange that it was issued by different panels, but these panels had the same judge. And the judge who made the decision on “Misto Bank” did not express a separate opinion when signing the decision. And when he was already the rapporteur on his case, he applied a completely different legal position.

The retired judge noted that such a misinterpretation of legislative norms in the practice of the Supreme Court has been observed for a long time.

Indeed, they made completely opposite decisions

At the same time, the retired judge drew attention to the fact that the state, starting from 2019, has been trying to limit bank shareholders’ access to justice. In particular, the procedure for proving was changed, and the possibility of appealing to court was limited.

By the way, it is interesting that in the “Concord” case, there (in the Supreme Court’s decision – ed.) a directive of the European Union is also indicated as a source of law. And here it is still questionable for us, we are only associated members of the European Union, so directives do not fully apply to us. Here there are also violations, we will say, of norms on social law and on the work and legality of applying directives. That is, in principle, I would say that there is inconsistency in the actions of the Supreme Court, and this is obvious inconsistency.

In general, according to the retired judge, misinterpretations of legal norms do not contribute to the unity of judicial practice, so the Grand Chamber of the Supreme Court should put an end to such situations. “Because two equivalent decisions exist now. And therefore, the judge has a question of how to proceed next time: to consider the case on its merits, or to close it, as it was closed in the second case (of “Concord” bank – ed.). Two equivalent decisions. If, for example, Stetsenko, the rapporteur, had sent his case to the chamber, or had written a separate opinion in that decision, then the consistency of his actions would have been clearer,” Sytnykov summarized.

AddDespite 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.