Oleksandr Vovk: Partner, Director of the legal department of JSC Colares,
Specially for “Legal Practice”
Ukraine has such trend, each newly elected President implements judicial reform in Ukraine through titanic efforts. Of course, behind every reform are announced loud slogans, concerning the importance for every citizen of their conception of reforming the judiciary in Ukraine. Every authority that introduced another judicial reform closely did not notice the norm of part 4 of Article 124 of the Constitution of Ukraine, according to which the people directly participate in the implementation of justice through people's assessors and jurors. This principle enshrined in the Constitution could be a concrete manifestation of the democracy of our state and consists in involving not only professional judges but also representatives of the people in the administration of justice. All forms of involving representatives of the people before the administration of justice are the implementation of the principles of collective trial of cases, which is aimed at guaranteeing the impartiality and fairness of justice for all. However, the principles of the manifestation of Ukraine's democracy are enshrined in its main law and still remain only declarative principles on paper.
Three are again three tiers
In 2015-2018, the new government in Ukraine introduced a further reform of the judicial system, as a result, which again neglected the content of Article 124 of the Constitution of Ukraine. Although according to Article 5 of the Constitution the people is the bearer of sovereignty and the only source of power in Ukraine. But, as stated by the first President of Ukraine L.M. Kravchuk “We have what we have”. So let's briefly understand what the system of judicial system of Ukraine is today and how it has changed. To date, a new concept of the judiciary has been built in Ukraine. There was a transition to a 3-tiered system of courts, that is, until recently, there was a 4-tiered judicial system in Ukraine. There were courts of the first (local) and second instance (appellate), which considered the cases on the merits, with the study of circumstances and evidence. If necessary, the court decision was reviewed in one of the 3 highest specialized courts: economic, administrative and civil and criminal cases. There was also the fourth instance, the Supreme Court of Ukraine, which was treated in exceptional circumstances. Ukraine has now moved into a clear-cut, 3-tiered judicial system in most counties of the world.
The new Supreme Court consists of cassation courts: administrative, economic, civil and criminal. In addition, they created the Grand Chamber of the Supreme Court, which ensures the unity of judicial practice, that is, establishes unified, predictable, understandable and equal decisions for all judges and considers socially significant cases. In the process of reform, the Higher Anti-Corruption Court was created, whose analogues have not yet been in place in the country.
The new Supreme Court and the new Procedural Code, which have been changed and approved, actually introduce the principle of a quasi-precedent - it is meant when the decisions of the main court will become a benchmark for the courts of previous instances. Thus, the new process should ensure the stability, unity and predictability of legal positions in all jurisdictions, and a person, coming to court, will already understand what might be the decision in a case with similar circumstances.
The new concept of the judicial system provides for the replacement of all local general courts by district courts. Provisions of part 1 of Article 21 of the Law of Ukraine “On Judicial System and Status of Judges” provides that local general courts are district courts, which are formed in one or several regions or districts in cities, or in the city, or in the district (areas), and city (cities). The final and transitional provisions of the law provide that district, inter-district, district in cities, city, city-district courts continue to exercise their powers before the activities of local district courts. That is, on the basis of 2-3 district courts one district court will be created, in which 9-12 judges will work. Legislators note that the issue of the work of courts in the transitional period will not remain unresolved, as at this time district courts will actually be maintained (territorially and structurally), cases considered and will be considered. The merger will take place only legally.
In my opinion, the issue of the feasibility of the establishment of district courts in place of the district and higher anti-corruption courts remains open. But did Ukraine really have a true judicial reform that can satisfy the society's need for an honest and fair court. Today there are no answers to these questions.
There is currently no clear and transparent mechanism for filling new district courts with judges. It is noted that some of the judges will be transferred to positions, and the other part - selected by passing the relevant competition. Similarly, it is not unequivocal to create an anticorruption court, because in a normal country every court and every judge must be anti-corruption. I think these questions remained ambiguous and rather controversial, so the time will show the effectiveness of the work of such courts.
I often discuss with my friends-employees of the judicial system of Ukraine the topic of the best court system in the world and the optimum judicial system for Ukraine. The issue of the judiciary is widely discussed in a variety of forms and in the media. Practically during each discussion of judicial reform in Ukraine, the issue of corruption of Ukrainian courts is always at hand. Workers of Justice are not groundlessly indignant that all judges are equated with one measure, and in the Ukrainian mass media the word “court” almost became synonymous with the word “corruption”. Colleagues ask the question: “Is the problem in Ukraine only in non-honest courts? Did corruption overcome in State Monopolies, Customs, etc.? And indeed literally in every branch, corruption is not less in every sphere, and in some places and much more than in our courts. However, I am convinced that the most important is the task of overcoming corruption in the judicial system and making our courts absolutely independent of the power branch. After all, if in the opinion of a person violated its legal rights, and then only the court and only the court will be able to protect it. And if there is a truly independent and fair court in the state, then it does not matter who violated the rights of a person, an influential official or a wealthy businessman, a fair court will always make an exclusively legal decision.
Personally, I am convinced that the priority of the society's request to overcome corruption in Ukraine will be satisfied only when the Laws for all work in Ukraine, and the two basic principles of a rule-of-law state: “the presumption of innocence” and “inevitability of punishment” will be promptly fulfilled by all state institutions. When every high official, small officer, businessman, prosecutor, doctor, or judge will know about the immediate inevitability of punishment then corruption will be overcome. When every citizen of Ukraine will remember the inevitability of punishment, then Laws and regulations will be enforced. The problems with speeding on roads, improper parking of cars, construction of non-high-quality roads, pollution of the environment, etc will be automatically solved. After all, all our citizens, regardless of their social status, when they come for example, in the United States always strictly comply with all their rules and laws, because they know about the inevitability of punishment for their violation. So while the top Ukrainian leadership will not find the political will to really overcome corruption in the state, until then, no matter what we introduced the judicial system or reformed the police and the prosecutor's office, society will continue to demand from the authorities a real fight against corruption and justice for all.
For the rest, I would like to say that despite the ambiguity of the whole judicial reform, the prospects of the Supreme Court of Ukraine, the creation of a three-tiered judicial system, the introduction of the principle of a quasi-precedent and an electronic court can still be considered positive. Time will show.