“The Supreme Court recused itself from fulfilling its constitutional duties in the case of Concord Bank – retired judgeThe panel of judges of the Cassation Administrative Court of the Supreme Court recused itself from considering the case of Concord
Bank. The judges did not determine the jurisdiction for the shareholders’ lawsuit, which deprives them of access to justice.
”, — write: unn.ua
ContextEarlier, the first and appellate courts ruled the decision of the National Bank of Ukraine to revoke Concord Bank’s license illegal 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 deprivation 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,” reported Olena Sosedka on her Facebook page.
In paragraph 56 of the resolution, the panel of judges explicitly stated that no court in Ukraine is empowered to consider claims of 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 peculiarities of the legal regulation of the disputed legal relations, the claim of a former shareholder of an insolvent bank (in this case, a liquidated bank) is not subject to consideration either under administrative or commercial legal proceedings, and by the subjective composition of the participants in the legal relations, it does not fall under the jurisdiction of a civil court. That is, such claims are not subject to consideration by any court
Details”The Supreme Court focused only on the issue of the absence of court jurisdiction. However, I believe that this is a flawed practice. According to Article 124 of the Constitution of Ukraine, the jurisdiction of courts extends to all legal relations arising in the state. This means that any dispute or legal situation arising within Ukraine can be considered by a court,” Nevyadomskyi noted.
He added that, according to current legislation, when making a decision on the absence of a certain jurisdiction in a case, the court is obliged to indicate the proper jurisdiction.
“Therefore, it is obvious that the Supreme Court recused itself from fulfilling its constitutional duty to resolve the existing dispute,” the retired judge noted.
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 actually deprives citizens and legal entities of the constitutional right to appeal to court. I can’t even believe that such a thing could be written in a decision,” noted former Deputy Prosecutor General, lawyer Oleksiy Baganets.
A similar opinion is held by the former deputy head of the State Bureau of Investigation, lawyer Oleksandr Babikov. He is convinced that by such a decision, the panel of judges deliberately deprived the shareholders of Concord Bank of access to justice.
“Such an approach is a conscious 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,” he emphasized.
Dmytro Kasyanenko, a lawyer at Kasyanenko & Partners Law Firm, also points to the violation of the constitutional rights of Concord’s shareholders. “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,” the lawyer noted.
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. But the bank liquidation process is strictly regulated by law and can generally last up to three years.