The expert’s opinion: Anton Liashchenko about the consequences of the judicial reform implementation
Also, with creation of the indicated specialized courts, we can make a conclusion that for protection of the rights, for example, on having a trade-mark, an inhabitant of Odessa Region will have to appeal to the court in Kiev, where, apparently, the Higher court on issues of an intellectual property will be situated, although, till now such cases were considered either by a local court (district), or by a county administrative court which was acting in every region (depending on the category and peculiarities of the case). Such situation is hardly called a convenience and care from the side of the state. Furthermore, at present in Ukraine the proceedings of anti-corruption cases and cases on issues of an intellectual property, comparing to the other categories of cases, are not so numerous, and it is doubtfully reasonable to establish the indicated courts in Ukraine at all.
Furthermore, it’s necessary to pay attention to the fact that till now Verkhovna Rada of Ukraine hasn’t made the corresponding changes in the processual legislation (the Civil Processual Code of Ukraine, Administrative Court Procedure Code, Criminal Procedure Code of Ukraine and other), in terms of the conducted judicial reform, including, for example, in connection with creation of the above indicated higher specialized courts on issues of an intellectual property and the Higher anti-corruption court. Also, up till now, the courts of the cassational instance in the processual legislation have been the Higher Administrative Court, Higher Specialized Court on consideration of civil and criminal cases, Higher Commercial Court of Ukraine. In case the corresponding norms will not be established in the nearest future, we’ll get the next judicial collision which will be difficult to resolve.
Also, one of the ‘cardinal’ changes in the judicial system reform is changing of names of the local common courts, in particular, instead of district, interdistrict, district in towns, town and town district courts, now will be local county courts which will have the same jurisdiction, as the courts with a previous name (in other words, in fact, it’s also only the ‘change of the sign-plate with the name’). Looking ahead, it should be right away noted that it’s not a ‘significant change’ in the local common courts introduced within the much-hyped judicial reform.
Furthermore, one of the significant changes distinguished by the authorities is an increase of the age qualifications for occupying of the position of a judge from 25 years to 30 years what, probably, will provide, occupying of the judge positions by the persons with a bigger life experience what, in its turn, will provide more qualitative judicial decisions. Alongside, in reality, before implementation of the judicial reform, very few cases of occupying the judge positions were registered with persons younger than 30 years of old. Furthermore, as practice shows, some persons in the age younger than 30 years may be much more qualified, than the 30-year- or even 40-year-old judges.
Also, among the obvious disadvantages of the above-mentioned Law of Ukraine “About judicial system and judge status” we can point out establishing of non-obligatory presence of a job seniority of a judge for occupying of a judge position in the Supreme Court of Ukraine, in particular, for occupying of the indicated position, it is enough to have an academic degree in the sphere of law and a seniority of the scientific work in the sphere of law of not less than 10 years or to have an experience of an attorney activity of not less than 10 years. The indicated norm may lead to occupying of judge positions of the Supreme Court by the persons who may be specialists in law, including, in the theory, but they may not have enough competence in consideration of judicial cases. It’s the same, if a person with a 10-year seniority of the scientific work in the sphere medicine would pretend on a surgeon position, although in practice he can work as a dentist. It’s interesting, whether our legislators who adopt the similar laws would come to such a ‘surgeon’?
Also, as it was announced by the authorities, the new judicial reform will stipulate occupying of the judge positions exceptionally on competition basis. The indicated norm is, certainly, a positive thing, however, the preceding Law of Ukraine “About judicial system and judge status” also suggested the order of occupying judge positions on competition basis, in particular, on the rate, though, it was no object for individual persons, the close relatives of the authoritative people, to occupy the corresponding positions. Consequently, the personnel quality will depend on the real performance of such norms.
Together with the above listed disadvantages, there is a number of positive factors too.
Thus, in particular, according to the new judicial reform, Verkhovna Rada lost the right to appoint and dismiss judges. Since the 30th of September 2016 the President of Ukraine has the right to appoint judges, if the Supreme Council of Justice introduces the corresponding submission. The right of release also belongs only to the Supreme Council of Justice.
Furthermore, according to Article 49 of Law of Ukraine “About judicial system and judge status”, a possibility of arresting the judge is foreseen, in case of commitment of any criminal or administrative right violation.
The indicated norm will undoubtedly contribute to responsibility of the judges for the committed right violation. There is a particular hope that, as a result of the indicated norm, some judges will stop feeling their ‘impunity’.
One more positive moment of the judicial reform may be excepting of the formulation ‘on the grounds of an oath violation’ from the list of the grounds for dismissal of a judge. The indicated formulation gave earlier a possibility to both the President of Ukraine, and Verkhovna Rada, to dismiss a judge from the occupied position on exceptionally formal basis, including, the procedure violation.
Consequently, the indicated judicial reform, although having a number of undoubtedly positive moments, in general will lead only to ‘changing of sign-boards’ and, in the whole, will hardly bring any cardinal changes into the current judicial system.
So, we can make here the only conclusion: the real changes in the court system in Ukraine are to be awaited still rather a long time, apparently, till that time when international organizations are finally fed up with giving the financial support to Ukraine without arranging real state reforms in our country.