On 29 June 2016 the Law of Ukraine "On Amendments to the Constitution of Ukraine on Justice" (hereinafter "Law on Justice") was officially published and shall become effective on 30 September 2016, except for provisions regarding the possibility of recognition by Ukraine of the International Criminal Court jurisdiction on terms defined in the Rome Statute, which shall enter into force three years after publication of this law. Furthermore, 16 July 2016 is marked by publication of the Law of Ukraine "On Judicial System and Status of Judges" (hereinafter "Law on Judicial System"), laid out in the new edition and aimed at implementation of the changes introduced by the Law on Justice. Judicial reform involves the following conceptual changes:
Changes in the court system
The Law on Judicial System implements three-tier judicial system, which will include local courts, courts of appeal and the Supreme Court, carrying out the functions of cassation. In order to consider specific categories of cases, high specialized courts will function within the judicial system. The Supreme Court will consist of the Supreme Court Grand Chamber, the Administrative Court of Cassation, the Commercial Court of Cassation, the Criminal Court of Cassation, and the Civil Court of Cassation. Restructuring of the Supreme Court must be completed within six months from the date of entry into force of the Law on Judicial System.
Given the specificity of certain categories of cases, the reform introduces the High Court on Intellectual Property and the High Anti-Corruption Court that will act as first instance courts hearing specific categories of cases assigned to their jurisdiction and shall be created within 12 months from the date when the law becomes effective.
Furthermore, additional specialization is introduced at the level of cassation review. Thus, in the Administrative court of cassation the separate chambers will be created for consideration of cases concerning taxes and other mandatory payments, protection of social rights, electoral process and the referendum, as well as protection of citizens' political rights, and within the Commercial Court of Cassation separate chambers will be created for hearings on cases on bankruptcy, protection of intellectual property rights, cases related to antitrust and competition laws, and for corporate disputes, corporate rights and securities.
New procedure for appointment, dismissal and responsibility of judges
Within the framework of judicial reform the minimum age of judges has been raised to 30 years, and a maximum of 65 years has been introduced. The procedure of appointing judges on the basis of public competition and qualification assessment was also described in the new legislation. Such appointment shall be performed by the President upon the proposal of the High Council of Justice (formerly the permanent election of judges was carried out by the Parliament). To ensure the independence of judges, they are appointed for indefinite period of time. However, in order to prevent abuse, established grounds for dismissal were extended and the scope of immunity was narrowed. Thus, the judge may not be held liable for their judgment, while committing a crime or disciplinary offence will trigger the liability on common grounds.
The exhaustive list of grounds for dismissal of judges covers, in particular, such grounds as a significant disciplinary misconduct committed by a judge, gross or systematic negligence of their duties, which is incompatible with the status of a judge or reveals their discrepancy of a post, as well as a violation of the duty of the judge to confirm the legality of the source of origin of funds. The High Council of Justice (formed from the High Council of Justitia) was granted the authority, inter alia, to dismiss judges from office, to approve arrest of a judge or his/her detention, and take a decision on temporary suspension of the judge from exercising justice. In addition, during the two-year transition period, the President will be empowered to transfer all the judges from one court to another, and the relevant authority of the High Council of Justice in this sphere will be deferred.
Notably, the Law on Justice provides that the powers of the judges previously appointed for a period of five years shall terminate in the end of the term for which they were appointed. Subsequently, such judges can be appointed under general established procedure. Judges, previously elected for indefinite period shall continue exercising their powers. However, the Law on Justice provides for the assessment of compliance for all the judges. Identification of the judge's unsuitability for his/her role based on criteria of competence, professional ethics or integrity, resulting from such assessment, or a refusal from assessment, constitute valid grounds for dismissal of judges from office.
Introduction of additional requirements for the judges
The Law on Judicial System establishes the duty of the judge to confirm the legality of the source of origin of funds in the course of evaluation of judge's suitability to the position or during disciplinary proceedings initiated in the circumstances causing doubts of legality of the source of origin of the funds or integrity of the conduct of the judge. Moreover, the judge is now obliged to submit a Declaration of Judge's Integrity and a Declaration of Judge's Related Persons, which shall be open to public access and published on the official website of the High Qualification Commission of Judges of Ukraine.
In addition, there is a profound check of the Declarations of each judge at least once in five years, or at special request of the High Qualification Commission of Judges of Ukraine or High Council of Justice.
A constitutional complaint
The reform introduced eligibility for all citizens and legal entities to file the constitutional complaint to the Constitutional Court regarding compliance with the Constitution of Ukraine (constitutionality) of the law, where the complainant believes that the law of Ukraine, applied in the final decision of the case they were involved in, contradicts the Constitution of Ukraine. A constitutional complaint may be filed exclusively when all other domestic remedies have been exhausted.
For further information please contact Asters' Managing Partner Oleksiy Didkovskiy
and Counsel Yaroslav Petrov.