Ukraine Judicial Assistance

Disclaimer: The information in this circular relating to the legal requirements of specific foreign countries is provided for general information only and may not be totally accurate in a particular case. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel. This circular seeks only to provide information; it is not an opinion on any aspect of U.S., foreign, or international law. The U.S. Department of State does not intend by the contents of this circular to take a position on any aspect of any pending litigation.

Summary

Service of Process Civil and Commercial Matters

Ukraine Central Authority Hague Service Convention

Obtaining Evidence in Civil and Commercial Matters

Ukraine Central Authority Hague Evidence Convention

Taking Voluntary Depositions of Willing Witnesses

Ukraine Judicial Sovereignty

Travel to Ukraine to Take Deposition

Compulsion Civil and Commercial Matters

Ukrainian Law Regarding Compulsion

Criminal Matters

Authentication of Documents

Lists of Attorneys in Ukraine

Links

Summary: Judicial assistance between the United States and Ukraine is governed by the Vienna Convention on Consular Relations (VCCR), 21 UST 77, TIAS 6820, 596 U.N.T.S. 261, which entered into force for Ukraine February 27, 2001; the bilateral U.S.- U.S.S.R. Consular Convention of 1964, which entered into force July 13, 1968, 19 U.S.T. 5018, 1964 U.S.T. Lexis 65, the Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil and Commercial Matters, 20 UST 361; and, the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, 23 UST 2555.

Service of Process in Civil and Commercial Matters: Ukraine is a party to the Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters. Note: Ukraine objects to the methods of service provided for in Article 10, including service by mail (Article 10 (a) of the Convention.) Service by mail should not be attempted. See declarations and reservations made by Ukraine on its accession to the treaty. See, FTC v. Compagnie de Saint-Gobtain-Pont-A-Mousson, 636 F.2d 1300 (D.C. Cir. 1980) on the issue of service via international registered mail in a country party to the Hague Service Convention which objects to service by mail. See also letter from the Administrative Office of U.S. Courts published in the 2000 Digest of U.S. Practice in International Law available on the U.S. Department of State Law Digest page, which provided, “with respect to service on private parties, clerks should recall that the 1993 amendments to the Federal Rules of Civil Procedure amended the provisions for service upon an individual in a foreign country. Service by mail, to be addressed and dispatched by the clerk, is permitted by F.R.Civ.P. 4(f)(2)(C) "unless prohibited by the law of the foreign country." Accordingly, clerks should refrain from effecting service by mail addressed to those countries who have protested such service or who have entered reservations to mail service under Article 10(a) of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters.”

Persons requesting service of process of U.S. documents in Ukraine should transmit the USM-94 form, in duplicate, with translations of the documents to be served in the Ukrainian language directly to the Ukraine Central Authority. For general guidance about how to transmit requests for service of process, see our Hague Service Convention feature. See Ukraine response to the 2003 Questionnaire in preparation for the Special Commission on the Practical Operation of the Hague Service Convention. See our Service Under the Foreign Sovereign Immunities Act (FSIA) feature and FSIA Checklist for questions about service on a foreign state, agency or instrumentality.

Ukraine Central Authority for the Hague Service Convention: The Ukrainian Central Authority for the Hague Service Convention is: Ministry of Justice of Ukraine, Department of Criminal, Civil and Administrative Law, vol. Arhitektora Gorodetskoho 13, Kyiv, Ukraine 01001. Contact person: Deputy Director of the International Department Ms. Kateryna Shevchenko, tel: 38-044-279-5491; fax 38-044-279-5441. See the Hague Conference on Private International Law Internet webpage for up to date information about the Ukraine Central Authority.

Obtaining Evidence in Civil and Commercial Matters: Ukraine is a party to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. Ukraine objected to the application within its territory of the provisions of Chapter II of the Convention, except for Articles 15, 20, 21 and 22. See the Hague Conference on Private International Law Internet webpage for any declarations or reservations made by Ukraine when it acceded to the treaty. According to the Civil Procedure Code of Ukraine, a judge preparing a civil case to be heard in court has the right to perform pre-trial discovery. These activities include interrogation of the plaintiff(s), defendant(s) and relevant witnesses. It also includes requesting written documents and statements, requesting physical evidence, and instructing other courts to obtain evidence.

Ukraine Central Authority for the Hague Evidence Convention: The Ukrainian Central Authority for the Hague Evidence Convention is: Department of Criminal, Civil and Administrative Law, vol. Arhitektora Gorodetskoho 13, Kyiv, Ukraine 01001. Contact person: Deputy Director of the International Department Ms. Kateryna Shevchenko, tel: 38-044-279-5491; fax 38-044-279-5441. See the Hague Conference on Private International Law Internet webpage for up to date information about the Ukrainian Central Authority for the Hague Evidence Convention.

Taking Depositions of Willing Witnesses: Ukrainian authorities have informed the U.S. Embassy that depositions of U.S. citizen willing witnesses are allowed without obtaining the permission of Ukrainian authorities. Permission from the Ukrainian Central Authority for the Hague Evidence Convention is required to take voluntary depositions of willing witnesses who are Ukrainian nationals or third country nationals. Telephone and video teleconference depositions from the United States of witnesses in Ukraine are also permitted with the same conditions. Depositions can take place at any location, including a hotel, office or the U.S. Embassy. Services of the U.S. consular officer must be scheduled in advance in connection with the taking oral depositions or depositions on written questions. If the services of a U.S. consular officer are required to administer oaths to the witnesses, stenographer and any interpreter outside the Embassy, additional fees are charged for such services. See 22 CFR 22.1 Schedule of Fees. For additional information, including details concerning consular fees, see Obtaining Evidence Abroad.

Depositions and Judicial Sovereignty: The deposition of a witness without interposition of Ukrainian authorities is not prohibited unless it abridges the rights or interests of Ukrainian citizens. If Ukrainian authorities become aware that the rights or interests of a Ukrainian citizen were violated, the person who was taking the deposition will not be allowed to enter Ukraine in the future.

Travel to Ukraine For Judicial Assistance Activities: Before traveling to Ukraine for judicial assistance related activities, see the Country Specific Information and any applicable Travel Alerts or Travel Warnings. It is also recommended that U.S. travelers register with the U.S. Embassy using our on-line registration system. If a U.S. federal, state or local official will participate in the deposition, contact the Office of American Citizens Services and Crisis Management, European Division (1-888-407-4747) for assistance in obtaining host country clearance for the travel of U.S. officials to conduct judicial assistance activities abroad. See note below regarding country clearance and criminal matters.

Compulsion of Evidence in Civil and Commercial Matters: For general guidance about how to transmit requests for evidence, see our Hague Evidence Convention feature. Compulsion of testimony or other evidence may be attempted under the Hague Evidence Convention by a court in the United States by transmitting a letter of request, with translations into the Ukrainian language, in duplicate, to the Ukrainian Central Authority for the Hague Evidence Convention. The Model Letter of Request for the Hague Evidence Convention should be used. See Ukraine response to the 2003 Questionnaire in preparation for the Special Commission on the Practical Operation of the Hague Evidence Convention.

Ukrainian Law on Compulsion of Evidence: The Constitution of Ukraine provides that a person cannot be compelled to testify against themselves or their immediate relatives. In other circumstances, the judge can request that a person be compelled to appear or testify. Article 385 of the Ukrainian Criminal Code provides for fines of up to 5100 Ukrainian hryvnya (approximately $1,000) or detention of up to six months for refusal to testify or provide evidence (except as mentioned in a preceding paragraph). Article 382 of the Ukrainian Criminal Code provides for fines of up to 17,000 Ukrainian hryvnya (approximately $3,300) or detention of up to five years with deprivation of certain rights for officials in Government positions who impede implementation of a court order or request.

Criminal Matters: U.S. federal or state prosecutors should also contact the Office of International Affairs, Criminal Division, Department of Justice at (202) 514-0015 for guidance about the U.S. – Ukraine bilateral Mutual Legal Assistance in Criminal Matters treaty. The Treaty provides for a broad range of cooperation in criminal matters in connection with the investigation, prosecution and prevention of offenses, and in criminal proceedings related to criminal matters. Therefore, criminal matters pending in U.S. courts are executed according to this treaty. Requests under MLAT are made and received for the United States by the U.S. Department of Justice and for Ukraine by the Office of Prosecutor General and the Ministry of Justice. The Criminal Procedure Code of Ukraine does not provide guidance regarding voluntary deposition of witnesses in criminal cases. Ukrainian authorities have informed the U.S. Embassy that no procedural acts by third parties in criminal cases are permitted in Ukraine outside the MLAT, i.e., only Ukrainian authorities can depose witnesses in criminal cases. Therefore it either the MLAT or letters rogatory with subsequent deposition of witnesses by the Ukrainian court are the sole methods of obtaining testimony in criminal matters. No permission will be granted for a deposition of even willing witnesses in criminal cases outside this process. According to the “Treaty between the United States of America and Ukraine on Mutual Legal Assistance in Criminal Matters”, service of criminal process on behalf of the prosecution must be done through the Ministry of Justice or through the Office of the Prosecutor General.

Country Clearance for Depositions in Criminal Matters: In criminal cases, permission for the taking of depositions on behalf of the prosecution must be obtained from the Ukraine’s Prosecutor General’s office if the case is at the pre-trial stage, and from the Ministry of Justice of Ukraine if the case is at the trial stage. This is done through the MLAT treaty process from Ministry of Justice to Ministry of Justice. NOTE: The benefits accorded by an MLAT with respect to the facilitation of communications, evidence gathering and other judicial procedures are generally limited to government parties involved in the prosecution of a case. In most instances, private counsel must make judicial assistance requests through the letters rogatory procedure, i.e., outside the MLAT process.

Defense Requests: The U.S. Department of State expects criminal defendants, or their defense counsel, who wish to request judicial assistance in obtaining evidence or in effecting service of documents abroad in connection with criminal matters to make such requests pursuant to letters rogatory in accordance with Article 5(j) of the VCCR. Defense requests for compulsion of evidence in criminal matters may be prepared in the form of a letter rogatory See 22 CFR 22.1 regarding current consular fees. For general guidance about preparation and transmittal of such requests, see our Letters Rogatory feature. Letters rogatory must be sent through diplomatic channels, in duplicate. The letter and documents must be translated into Ukrainian. The Ukrainian Embassy in the United States need not authenticate letters rogatory. Triple certification of letters rogatory is not required. There are no special requirements for the format or type of information contained in a letter rogatory. Decisions of foreign courts or arbitration courts can be submitted for execution in Ukraine only if they have been issued less than three years before submission. Letters rogatory for compulsion of evidence should be transmitted to the U.S. Department of State, Bureau of Consular Affairs, Overseas Citizens Services, Office of American Citizens Services and Crisis Management, Africa Division, CA/OCS/ACS/AF, 1-888-407-4747. . Mailing address: SA-29, 4^th Floor, 2201 C Street N.W., Washington, D.C. 20520. Express mail address: 2100 Pennsylvania Avenue N.W., Washington, D.C. 20037. The letter rogatory will be transmitted from the Department of State to the U.S. Embassy, which will forward the request under cover of a diplomatic note to the Ukrainian Ministry of Foreign Affairs.

Authentication of Documents: Ukraine is a party to the Hague Convention Abolishing the Requirement for Legalization of Foreign Public Documents which entered into force for Ukraine December 22, 2003. See the Hague Conference Apostille page authorities section for current information about the Ukraine authority competent to issues apostilles. For information about authentication of documents for use abroad see our web page notarial and authentication feature. See also the U.S. Department of State Authentications Office webpage. See also Embassy of Ukraine, Washington, D.C. Apostille page. The apostille is not used in criminal evidence matters or extraditions.

Lists of Attorneys in Ukraine: See the U.S. Embassy in Kyiv’s List of Attorneys. See also Retaining a Foreign Attorney.

Other Links:

U.S. Government Links
U.S. Department of State Intercountry Adoption Ukraine
Ukraine Background Notes
Ukraine Country Specific Information
Library of Congress Guide to Law Online – Ukraine
World Fact Book - Ukraine

NGO Webpages
Washburn School of Law – Ukraine Law Links
BRAMA Ukrainian Laws and Legal Matters
University of Pittsburgh School of Law – Ukraine Law links
Ukrainian Family Code

Ukraine Webpages
Constitution of Ukraine
Constitutional Courts of Ukraine
Higher Arbitration Court of Ukraine
Supreme Court of Ukraine
Ministry of Justice - Ukraine; Portal of Ukrainian Government MOJ
Ministry of Foreign Affairs - Ukraine

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