"Choosing an inappropriate and/or ineffective method of defense is an independent and self-sufficient reason for rejecting the claim", - this legal conclusion was reached for the first time by the Supreme Court of Justice in the resolution dated 31.10.2018 in case 367/6105/16-ts and it was and continues to be applied courts of various instances, including the courts of cassation, which also made efforts to form a legal position regarding the protection of the right.
It is worth emphasizing that the courts apply this conclusion even when the plaintiff has chosen a method of protecting his violated rights, which is not only provided for by law or contract, but has also been used repeatedly in specific disputed legal relations. Justifying it by the fact that the chosen method of protection is ineffective because it is not suitable for a specific plaintiff or there is another method that, in the opinion of the court, is more appropriate.
There are also cases when the case was initiated several years ago, the decision in the case was made in favor of the plaintiff, and due to different interpretations of legal norms, the court of cassation refuses the plaintiff to satisfy the claim, indicating that it would be correct to file a lawsuit with a different subject. And there is no guarantee that this legal opinion will not change within a year or more.
Considering that such uncertainty de facto deprives the applicants of the right to a fair trial and indicates a violation of paragraph 1 of Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms, the Government has developed a draft law with registration No. 9127 of March 20, 2023, which, among other things, is proposed to be supplemented Art. 5 of the Code of Criminal Procedure and the Code of Civil Procedure of Ukraine, as well as the Civil Code of Ukraine with the following content: "The plaintiff can choose a method of protection provided for by law or contract, or another method that does not contradict the law. The court cannot refuse to satisfy the claim on the grounds that the plaintiff has chosen an ineffective method of defense, if such a method is provided for by law or contract."
Based on the content of the addendum, the adoption of the specified act can have a positive effect on the protection of human rights in Ukraine and will ensure the implementation of the norms of the Convention. More importantly, it will also reduce the length and number of legal proceedings to restore the rights of individuals who have been violated.
Violetta Fedorko, lawyer at Dynasty Law & Investment