Authors: Nataliia Sichevlyuk, legal advisor, and Yulia Poltorak, HACC case monitoring lawyer

Imagine that there is a dispute between you and your friend Mykola regarding the recognition of your ownership of the house. But while there is no court decision, you are worried that Mykola can sell this house, and then it will be much more difficult for you to return it. To prevent this from happening, you can secure a claim, that is, ask the court to seize the house. Then Mykola will not be able to dispose of the property until the dispute is resolved, and if the court decision is in your favor, you will be able to return the property and dispose of it in full.

Let’s take a look at how securing a claim works, and why this important institution is necessary. 

What is securing a claim, and why do we need it? 

The institute of securing a claim is a procedural action provided for by the current legislation of Ukraine, which allows a party to ensure its rights during the consideration of the case. In essence, this means that the court will take certain measures in advance to enforce its decision in the future (if it is in favor of the plaintiff). Securing a claim is useful precisely because it eliminates potential difficulties in the actual enforcement of court decisions. 

It should be remembered that on its own initiative, the court cannot take measures to secure the claim. That is, if a party to the case is interested in this, they must submit the relevant application before the filing the claim itself or at any stage of the case consideration.

What are the measures to secure the claim?

A party may apply to the court with a request to take specific measures that will ensure its rights. The list of kinds of securing the claim is not exhaustive, but in particular includes:

  •     seizure of property;
  •     prohibition to dispose of property;
  •     imposing a ban on certain actions;
  •     imposing an obligation to perform certain actions;
  •     prohibition of other persons to perform certain actions regarding the assets in question;
  •     suspension of the sale of seized property, etc. 

However, the possibility of applying measures to secure the claim is somewhat limited. For example, seizure cannot be imposed on items that quickly lose their value, salaries, pensions, scholarships, and other relief payments.

Such measures are temporary and are valid until the enforcement of the court decision, which ends the consideration of the case on the merits. In addition, they must be commensurate (that is, equal in volume) with the claims filed by the plaintiff. In addition, the Supreme Court stressed that when considering an application for securing a claim, the court should not only make sure that a dispute really arose between the parties and there was a real threat of non-fulfillment or impediment to the enforcement of a possible court decision, but also establish the compliance of the type of securing the claim that the plaintiff requests with the claims. 

How does it work in the anti-corruption field?

In this way, not only a person, but also state bodies can protect their rights. For example, securing a claim by the Ministry of Justice is an important tool in anti-corruption practice to protect the rights and interests of both the state and citizens. 

Securing a claim is especially relevant during the consideration of sanction cases, where sanctioned persons do not appear in criminal proceedings, and therefore their property is not seized. For example, the Ministry of Justice asked the court to prohibit registration actions against the property of Chernyak, former member of the State Duma of the Federal Assembly of the Russian Federation; the HACC satisfied this request. Another example is securing the claim against the property of Russian MP Aksakov.

In the case of sanctions, securing the claim helps “freeze” valuable property for Ukraine so that its owners, who may end up under sanctions, do not have time to hide it anywhere.

What is the counter-securing of a claim?

In essence, the counter-securing of a claim is a guarantee that the defendant’s losses from securing the claim will be reimbursed. Such a possibility exists so that there is a balance of rights and interests between the parties. The counter-securing of the claim differs significantly from the usual one in that it can be requested by the court. 

What does the Constitutional Court of Ukraine say about this?

The CCU indicates that the institution of securing the claim is provided for in the procedural laws of Ukraine in order to ensure the enforcement of the court decision. This makes it possible to protect violated, unrecognized, or contested rights, freedoms or interests.

In the same decision, the CCU also emphasizes the balance of the rights of the plaintiff and the defendant in securing the claim. In particular, for the plaintiff, this is the compliance of real measures with the requirements in the application. The court may require the plaintiff to secure their claim with a bail — for example, to pay money to the account, from which the potential losses of the defendant can then be reimbursed. For the defendant, this is compensation for damages and the right to appeal the court decision on securing the claim under the appellate procedure.

Thus, the institution of securing a claim is an important element of the judicial system, since it helps ensure the efficiency of legal proceedings, guarantees the enforcement of court decisions, and protects the rights and interests of the parties.