New Law on Judiciary and Status of Judges
The new Law of Ukraine "On Judiciary and Status of Judges" (hereinafter – the "Law") came into force on 30 July 2010. Adoption of this law is another step in the dramatic changes of the Ukrainian judiciary which started with the Law of Ukraine "On Prevention of Abuse of the Right to Appeal" of 13 May 2010.
There are different opinions about the new law, with some commentators asserting that the main purpose of the law is consolidation of political control over the Ukrainian judiciary. One of the staunchest opponents of this Law is the Head of the Supreme Court of Ukraine, who asked the President, to no avail, to veto the Law. Yet despite the misgivings skeptics have about the new Law, the Law does introduce certain positive changes in the organization of Ukraine's judicial system and in the quality of the procedural laws.
Creation of a New High Specialized Court and Change in the Status of the Supreme Court
The Law creates a new higher court in the system of courts of general jurisdiction, the High Specialized Court for Civil and Criminal Cases. This court will assume most of the existing competence of the Supreme Court's Chambers on Civil, Criminal and Military Cases and will have the status similar to the existing high specialized courts in commercial and administrative cases. In other words, the new specialized court will become the ultimate court of appeal for most civil and criminal cases from the common courts.
The powers of the Supreme Court were further reduced as it now lost the right to:
1) Allow the appeals and open appeal proceedings
The previous law restricted the Supreme Court's discretion in allowing appeals to a few grounds of which the most significant was (and still remains) a divergent interpretation and application of the same provision of law by the high specialized courts in similar cases. Yet in practice the Court had rarely followed these restrictions failing to produce any meaningful criteria in exercising of what has became a fairly broad discretion in allowing appeals. This right has now been taken away from the Supreme Court and given to the high specialized courts that may confirm or deny the availability of the grounds for bringing the case to the Supreme Court of Ukraine. This provision is likely to mean the high courts' de facto veto over whether the Supreme Court can hear a particular case.
2) Order re-hearing of the case by the first instance court upon setting aside the decision of the high specialized court
The Supreme Court extensively used this power in the past adding yet another litigation round to the case that could eventually end up running two, three or even more rounds of re-hearing in each of the 4 court instances (3 instances if the civil or criminal case was concerned). Under the new Law if re-hearing of the case is ordered by the Supreme Court it should be limited to the high specialized court only.
3) Terminate the proceedings upon setting aside the decision of the high specialized court
By exercising this right in the past the Supreme Court could effectively make a final decision in favor of the appealing party because termination of the proceedings resulted in a survival of the decision taken by the lower court. The Supreme Court can no longer decide a case with finality and is now required to order a re-hearing of the case by the high specialized court.
4) Hear the cases in 3 separate chambers on the civil and criminal cases, on the commercial cases and on the administrative cases
All judges of the Supreme Court (whose number currently exceeds 50 people) will now sit together and hear the cases irrespective of their nature in a single chamber. The number of the Supreme Court judges must gradually be reduced to 20 as some judges will retire and others will elect to move to one of the high specialized courts that have now apparently become more powerful centers of the judicial influence than they were before.
For the First Time in Ukrainian Legal History Supreme Court Judgments Officially Become Precedents and a Source of Law
The described measures pursue the obvious purpose of shifting the powers to finally resolve the specific case from the Supreme Court to the high specialized courts. Instead the Supreme Court received another tool of influence which goes beyond the limits of the specific case and has a potential to shape the development of the law in general. The status of the Supreme Court's decision was upgraded from being binding only on the parties involved in a specific case to a source of law that all judges and administrative authorities in Ukraine must follow. This novelty makes Ukrainian legal system closer to the precedent-based systems of law. Ukraine now officially recognizes the Supreme Court decision resolving a concrete dispute as a source of law. The strategic importance of this new principle should not be underestimated.
Simplified and Expedited Procedures
As a practical matter, removal of the Supreme Court from involvement in most specific cases may prove to be beneficial for the litigants who may now be able to obtain a definitive and final court judgment sooner. On balance, the abridged powers of the Supreme Court will result in shorter time needed for the case to reach a final court decision as fewer cases will be heard in the forth instance and none will be ordered for retrial.
Many of the other changes introduced by the new law appear to be aimed at simplification and streamlining of court procedures.
One example of this simplification is that in administrative courts subpoenas can be sent by email and fax. Of course, the other side of this simplification is that under certain circumstances this simplification could be used to undermine the rights of the parties because they would have less time to prepare for judicial proceedings.
The Law also provides for the introduction of an automatic system of documents circulation and distribution of cases between judges in all courts. The idea behind this project is that the automatic system is supposed to make it harder to manipulate and misplace documents in court files. If introduced properly, it is also supposed to eliminate or limit the discretion of chief judges in distribution of cases between judges.
A number of changes in the procedural codes are likely to result in shortened trial and appeal procedures. For example, under the new rules the maximum time allowed for the consideration of the case in the high specialized courts or in the Supreme Court was cut from two months to just one month. Where the maximum time of review was not determined at all (this was the case with the Supreme Court review of the civil and criminal cases), it is now set to be a unified one month period. The rule applicable to all types of proceedings under the new Law is that each high specialized court has 15 days to decide whether the appeal can be heard by the Supreme Court.
These and other changes may result in substantially shorter times for final resolution of many cases.
Changes in the Appointment and Dismissal of Judges
The Law introduces a procedure for the appointment of judges which could potentially add transparency and selectivity to the current procedure. Some of the positive changes in this respect include an anonymous test which candidates for the first judicial appointment would have to take, and a publication of judicial vacancies on the web. The new Law makes appointment of judges for life easier. Previously, the Parliament appointed judges for life on recommendation of its Committee for Judiciary. This recommendation was not easy to receive and it could take many months. The new Law attempts to simplify this process and provides that the Parliament does not need recommendation from its committees to hear the motion for the appointment of judges for life. In addition, the Law goes even further requiring the Parliament to repeatedly vote for the appointment of a judge where the candidate failed to receive support as a result of the first voting.
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