Political Points for 21 – 28 October 2019

Draft law submitted by the President does not solve the problem of overload of the Supreme Court

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1. CPLR expert opinion

On October 16, the Parliament passed the law “On Amending the Law of Ukraine “On Judicial System and Status of Judges” and some laws of Ukraine on the activity of judicial governance bodies” (draft law No. 1008, initiated by the President). Along with the positive changes (rebooting the High Qualifications Commission of Judges and verification of existing members of the High Council of Justice with the involvement of international experts) the law contains an unjustified requirement to halve the number of judges of the new Supreme Court (from 200 to 100). Having no objections against the need to dismiss some of this court’s judges due to the lack of integrity, the Centre’s experts believe that in the context of a significant burden on this court and in the absence of certain reduction procedures, this measure may have a negative effect on the users of court services and on the independence of judges with good faith reputation.

2. Respective authorities counter-point/argument

On October 25, the President introduced a draft law on amending the procedural codes in order to improve the review of judicial decisions under appeal and cassation procedures (No.2314).

Among other things, the draft law aims to reduce the burden on the Supreme Court. The draft law provides for additional restrictions on the admissibility of cassation complaints. The Supreme Court can open the cassation proceedings only if:

•  the Court of Appeal applied the law in the contested decision, by ignoring the position of the Supreme Court;
•  the complainant substantiates the need to deviate from the previously stated position of the Supreme Court;
•  there is no position of the Supreme Court on the application of the law in certain legal relationships;
•  the court’s decision is appealed based on the grounds provided for the mandatory cancellation of the decision;
•  the disciplinary authority brought to disciplinary responsibility the judges who were members of the panel of the Court of Appeal, which decided the case if their conduct was committed in connection with the consideration of such a case.

In civil and commercial matters, if the cost of the claim is 500 subsistence wages (more than UAH 1 million) or less, the Supreme Court will be able to open the cassation proceedings when it recognizes that the case is of fundamental importance for the law enforcement practice or for the society, or for the appellant or in some other situations.

3. CPLR assessment of the authorities counter-point

These provisions will not significantly reduce the number of cases in the new Supreme Court.

First, they do not relate to existing cases (including thousands of cases that have been transferred from previous Supreme and High Courts).

Second, in most cases in a cassation appeal, it is sufficient to refer to the absence of a legal opinion of the Supreme Court on a specific issue in order for the claim to be taken into consideration.

Third, the draft law introduces a new ground for cassation appeal (bringing judges of the Court of Appeal who made a decision to disciplinary responsibility in this regard).

Fourth, in any case in civil and commercial matters, if the cost of the claim is up to 500 subsistence wages, the Supreme Court must decide on the admissibility of the cassation instance, as the Court does today. This provision does not affect the administrative cases that are most prevalent in the Supreme Court.

4. Related legislation/instructions which require the authorities act in a certain manner

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5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The draft law contains a number of useful provisions (they are not analyzed here, as most of them are outside the scope of the purpose of the draft law), and it is therefore advisable to support it with further finalization.

At the same time, the implementation of the law will not significantly reduce the number of cases in the Supreme Court, and therefore will not prevent the problems stipulated by the Law “On Amending the Law of Ukraine “On Judicial System and Status of Judges” and certain laws of Ukraine regarding the activity of judicial governance bodies”. The urgency of reviewing the provisions introduced by this Law remains (regarding the reduction of the Supreme Court, the weak role of international experts, the possibility of appealing the decisions of the competition and ethics commissions to the politicized District Administrative Court of Kyiv instead of the Supreme Court).

Reduction of the Supreme Court may be a strategic goal to ensure consistent practice, but it requires strengthening the courts of appeal, improving the quality of their activity, and naturally reducing the number of cassation appeals and cases in the Supreme Court.