Consumer protection in Ukraine: how to justify your position?
Analysis of judicial practice in cases related to consumer protection
Interaction between business and consumer always involves a potential opportunity of occurrence of disputes. There are many reasons for this: it can be quality of goods or different interpretation of rights by parties of relations. Ukrainian judicial practice of such disputes settlement is also quite extensive. One of the latest generalizations of this practice was provided by the letter of the Supreme Court of Ukraine dated 01.02.2013 in which the court pointed out who and how can protect his rights (more details) as well as mentioned nuances of position support process.
What is to be proved and how can it be achieved
In cases related to consumer protection it is necessary to prove the following:
- fact of purchase of service or good;
- provision of information about a good (service) and its content;
- information about good’s features and its compliance with consumer’s needs and regulatory requirements;
- use of goods;
- damage that was caused to life, health and/or property of a consumer.
Burden of proof lies with the consumer. He can prove it by means of receipt, check, ticket, coupon or payment document as well as by a written document (for example a contract). Regarding goods that have warranty this fact can be proved by technical specification or other document which substitutes it and specifies the date of sale.
If such documents were not provided after sale or lost, a consumer can prove the fact of purchase of a good by means of witnesses or other evidence. For example, when a good was purchased via the Internet, the fact of purchase can be proved by receipt as well as by a copy of internet shop’s website. At the same time the Supreme Court of Ukraine expressed the opinion that examination of such website has to be performed in accordance with rules provided by Article 188 of the Civil Code of Ukraine which regulates the procedure of examination of audio and video recordings.
It is possible to prove that a good has or doesn’t have defects by means of expertise. The Supreme Court of Ukraine reached the conclusion that a seller is the person interested in conduction of expertise since the burden of proof lies with him in such cases. According to Section 4 of Article 17 of the Law of Ukraine “On consumer protection” it is the seller who must organize expertise of a product at his own expense if it is required to find out causes of quality loss during warranty period.
The Supreme Court of Ukraine expressed the opinion that provision of report from service center which renders warranty services instead of expert report is not in conformity with the nature of expertise. Article 3 of the Law of Ukraine “On judicial expertise” provides that the expertise must be conducted based on principles of legality, independence, objectivity and completeness of examination. Report of service center is usually in non-compliance with these principles. Most of the times they can’t be considered expertise establishments and their reports are unable to be equal to expert reports which are required to be provided by the Law of Ukraine “On consumer protection”. That’s why reports of service centers cannot serve as admissible evidence which proves absence of defects of a good or that these defects were caused by consumer.
At the same time the Supreme Court of Ukraine agreed that the legislation does not provide any regulations about procedure and mechanisms of conduction of expertise for determination of causes which led to quality loss and fails to set the establishment which is responsible for conduction of expertise. Such situation results in abuses both on the side of consumers and on the side of sellers (manufacturers). The Supreme Court of Ukraine thinks that expertise can be performed by persons included in the State register of certified experts. Procedure of expertise conduction by them must be in compliance with methodical materials of judicial expertise conduction that are stored in a register which is accessible since May of 2011 on the official website of the Ministry of Justice of Ukraine.
Also, the letter of the Supreme Court of Ukraine includes information about peculiarities of consumer protection in cases of loan relationships, investments, using/ordering tour services, insurance services and some other cases.
This material was written by legal experts of law firm “Pravova Dopomoga”.
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