CONCLUSION on the draft Law of Ukraine No. 2314)

CONCLUSION
of the Centre of Policy and Legal Reform
on the draft Law of Ukraine
«On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Ukraine on Administrative Procedure to improve the review of court decisions in appeal and cassation procedures» (No. 2314)

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On October 25, 2019, the President of Ukraine Volodymyr Zelensky submitted to the Verkhovna Rada of Ukraine a draft law "On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Ukraine on Administrative Procedure to Improve the Review of Court Decisions in Appeal and Cassation Procedures" No. 2314.

The draft law has the following motivation:

“the procedure for admission of court decisions to cassation provided by the procedural law does not contribute to the Supreme Court's fulfillment of its main task – ensuring the consistency and unity of judicial practice…

…the proposed system of admission of court decisions to cassation will not only ensure the formation of a unified judicial practice, but will over time significantly reduce the quantitative burden on this court.

The draft law also improves a number of rules in order to prevent the abuse of procedural rights by the participants of the case and to optimize the procedure for considering cases.”

In order to address these issues, the draft law proposes:

• to install additional “filters” for admission of cases to the cassation instance;
• to establish the obligation of the appeal and cassation instances to submit the case to the competent court of first instance in the event of the proceedings being closed due to the fact that the case must be heard under the rules of another type of judicial procedure;
• to narrow the possibilities for courts to take measures to secure a claim;
• to authorize the court hearing the case to decide independently on the motion to dismiss the judge if the application is received no later than three days before the scheduled hearing;
• to introduce some other clarifications to certain procedural provisions.

Summary of the Conclusion

In general, the draft law contains positive novels.

It is necessary to support:

• the intention to reduce the burden on the cassation instance;
• the imposition of an obligation on the court of appeal or cassation to refer the case to a competent court of first instance, if the case is to be heard under other rules of justice;
• establishing a rule to prevent abuse of the right of dismissal of a judge.

At the same time, we propose to finalize the draft law in the following areas:

• the rules of admissibility of cassation complaints in different types of judicial proceedings should be simplified and unified (in the draft law these rules are formulated too confusingly and casuistically);
• the practice of bringing judges of the courts of appeal to disciplinary responsibility as a ground for cassation appeal should be abandoned. It is advisable to determine the abuse of judges when deciding whether to rule on exceptional circumstances in the event of confirmation of such abuse not only by a court order but also by a decision of a disciplinary body;
• instead of narrowing the possibilities of the courts to take action to enforce a lawsuit, the preference should be given to disciplinary and even criminal justice measures to combat abuse by judges;
• in the case of competition between the rules of commercial litigation on exclusive jurisdiction in real estate disputes, the preference should be given to the rule of considering the case at the location of the real estate, and not of the defendant – the special subject.

Provisions of the draft will only apply to new cassation appeals filed after this law enters into force. This is a correct way, as the law should not be given a retroactive effect. However, the draft law will not allow in the near future to address the problem of overloading of the Supreme Court as a cassation instance (due to the large number of remaining cases), and therefore does not give an opportunity to substantiate the need for a significant reduction of its composition now.

Moreover, the draft law would exacerbate this problem. The following figures can illustrate the large scale of remaining cases: if the Supreme Court had stopped accepting new cassation appeals, the current Grand Chamber would need approximately two to three months to review the remainder of the cases, the Administrative Court of Cassation – nine months, the Economic Court of Cassation – two months, the Criminal Court of Cassation – seven months, the Civil Court of Cassation – ten months.

A detailed analysis of the provisions of the draft law is given in Ukrainian.