Recognition and execution of Ukrainian judicial documents in Italy and opposition and review of the same.

Actions in Italy against the recognition of unfavorable sentences issued in Ukraine.

​

Very often this firm receives assignments to carry out adequate defense both in Ukraine and in Italy for unfavorable decisions of Ukrainian courts. The most significant cases are of infringement of the right of defense or the application of legislation contrary to and incompatible with the Italian one. 

One of the most discussed topics in the field of Italian/Ukrainian integrated and comparative law is the value of a Ukrainian sentence which orders maintenance based on the marital contract in Ukraine or on the custody of children in a manner dissonant with international law, the major international treaties and ECtHR rulings. It is obvious that what is being discussed represents a constant debate between jurists who are experts in these issues, which pits those in favor of registering the sentence in Italy with the possibility of being challenged before the ordinary Italian court for the revision of the conditions established in the sentence and those who believe conversely, that it is also possible to challenge registration in Italy for conflict with public order.

This firm, after years of experience in the field of relations with the recognition in Italy of Ukrainian sentences, although leaning towards the first hypothesis expressed above, believes that it is necessary to challenge the unjust Ukrainian sentences for which recognition in Italy is requested, first and foremost before the competent court of appeal and, only if the court appealed does not agree with the objections raised, before the competent Italian court. In other words, no stone should be left unturned. 

In the opinion of the lawyer. Benedetto, it seems more logical that the procedure should be addressed to the court for review, since the act from a purely formal point of view is not apparently contrary to public order, but only intrinsically, since it bases its decision and issuing of effects on legal assumptions incompatible with the Italian legal system.  On the other hand, more and more courts of appeal are not limited to a superficial (formal) evaluation, but if adequately stimulated they enter into the merits of the Ukrainian decision.

Article 64 of law 218/95, relating to the recognition of foreign sentences, provides that the foreign sentence, therefore also one issued by a court of Ukraine, is recognized in Italy when:

to) the judge who pronounced it could hear the case according to the principles of jurisdictional jurisdiction specific to the Italian legal system. Therefore, this point is respected by the Ukrainian legal system regarding sentences (ed);

b) the document initiating the proceedings was brought to the attention of the defendant in accordance with the provisions of the law of the place where the trial took place and the essential rights of the defense were not violated.  This point too, except for issues to be assessed on a case-by-case basis, can be considered to be respected in the vast majority of cases by the courts of Ukraine (ed);

c) the parties entered an appearance in court according to the law of the place where the trial took place or the default was declared in accordance with that law. The problem is solved, since with the new law that came into force in 2018, technical defense with a lawyer qualified for the legal profession is mandatory in Ukraine, therefore it is taken for granted that the Italian user has defended himself with a regularly practicing professional (ed. );

d) it has become final according to the law of the place where it was pronounced;

And) it is not contrary to another sentence pronounced by an Italian judge which has become final;

f) there is no pending trial before an Italian judge for the same subject and between the same parties, which began before the foreign trial;

g) its provisions do not produce effects contrary to public order.

This is the crux of many requests for recognition and enforcement of Ukrainian sentences.

 

The changes to the conditions of divorce in Italy established by the Ukrainian ruling: maintenance and custody of children in Ukraine.

The marriage celebrated abroad by the parents of the minor offspring, therefore, must be considered valid in Italy, even if not transcribed, pursuant to art. 19 of the Presidential Decree of 3 November 200 n. 396, and the same applies to the divorce sentence issued by a court in Ukraine, which, even if not transcribed, must be considered valid and automatically recognized in Italy pursuant to art. 61 L. 218/1995, the principles listed above exist.

Having said this, there is the right of the appellant in Italy to obtain the modification of the provision made by the Ukrainian court, with regard to the revision of the maintenance contribution and also for minor children. Furthermore, the Italian court, charged with the modification of the conditions of divorce, child custody and maintenance issued in Ukraine, has the power to rule not only on the personal relationships between the spouses but also on incidental issues connected to them, including those in food matters also with regard to relationships with children.

Finally, the Italian judge can evaluate, pursuant to articles. 337 quinquies of the Civil Code and 5 and 6 L. 898/70, prerequisites and circumstances already existing at the time of the foreign decision which have not been considered according to foreign legislation or the subsequent change in circumstances, for the purposes of the requested revision, with consequent application of Italian law to the case in point .

​

The principle of non-contradiction to Italian internal public order, for the purposes of transcribing civil status documents and sentences issued in Ukraine: the problem of the marital contract and custody of children in Ukraine.

One of the debated problems is the validity of a sentence ordering maintenance, custody of minor children or the assignment of assets between the spouses which must be carried out in Italy and based explicitly on a marital contract.  In the opinion of this firm, public order is not affected by the marriage contract, but, as an institution unknown to the Italian legal system, unlike the Ukrainian one, it should be disapplied. In other words, not only are the general principles of the Italian legal system violated, but also those of the right of defense. In fact, in the case of a marital agreement, it is impossible to articulate a legal defense detached from the contract itself before the Ukrainian judge. It should not be forgotten that respect for the right of defense is the main prerequisite for the recognition of a Ukrainian act in Italy. 

It should be noted that the marriage contract and/or prenuptial agreement in Ukraine is not recognized in Italian law.

The art. 18 of the Presidential Decree n. 396/2000, entitled "cases of non-registrability", provides that documents drawn up abroad cannot be registered if they are contrary to public order. With regard to foreign sentences, art. 1, paragraph 1, letter g), of Law no. 218/1995, provides for its recognition in Italy, without the need to resort to any proceedings, when its provisions do not produce effects contrary to public order.

And again the articles. 65 and 66 of the same Law n. 218/1995, concerning the recognition of foreign provisions respectively, of voluntary jurisdiction and concerning the capacity of persons as well as the existence of relationships or personality rights, equally pronounce themselves in recognizing their validity as long as they are not contrary to public order. These are the regulatory sources which, with particular reference to civil status documents and sentences pronounced abroad, recall the principle of non-contradiction to public order, in the absence of which it is impossible to make the effects of those documents effective.

There is therefore a problem which can only be addressed on a case-by-case basis, as it is practically impossible to list all the elements and factors which, for each type of act or sentence of any nature, can be included among those which constitute contrary to public order.

Public order is formed by that set of principles, which can be deduced from the Constitutional Charter or, in any case, even if they do not find a place in it, founding the entire legal structure as they are immanent to the most important legal institutions which result from the set of mandatory rules provided by the character of fundamentality which distinguishes them from the broader genre of mandatory norms, such as to characterize the attitude of the legal system itself in a specific historical moment and to form the cornerstone of the ethical, social and economic structure of the national community, giving it a well-identified and unmistakable physiognomy.

Principles that must be respected "always", even if the relationship is subject to a foreign law, constituting the "general" limit to the application of said law consequent to the normal functioning of the rules of private international law and having the function of avoiding the insertion into domestic law of legal values, foreign ones in fact, in contrast with the fundamental principles of our system. Undoubtedly, in addition to the marriage contract, it can be considered that, for example, ordering custody of minors to the sole Ukrainian mother for exclusively nationalistic reasons is contrary to public order.

Obviously, each case must be evaluated analytically on its own by jurists who are experts in the sector and with a strong awareness of integrated Italian, EU and Ukrainian law. 

​