LEGAL ACHIEVEMENTS IN THE JUDICIAL SPHERE IN UKRAINE
IN 2012
The most important factor for effective functioning of the judicial system is the appropriate legislative consolidation of its basics.
During 2012 certain legislative changes in the judicial sphere of Ukraine have been happened, whereof I would like to inform you briefly today.
Let me state, that the analysis of legislative practice in the judicial system of Ukraine during this period shows that the main course of Ukraine is the protection of human rights and freedoms, improving of judicial procedures, strengthening the guarantees of judicial independence, gaining the international experience and the provisions of the relevant international legal documents in this sphere.
Special attention attracts the adoption of the new Criminal Procedure Code of Ukraine (entered into force on 19 November 2012) which determined the priority of the state in the field of criminal justice.
- One of the most principal novels of the Code is the introduction of the new position - the investigating judge, which should become the key figure in the criminal process, especially at the stage of pre-trial investigation. However majority of the processual issues shall be resolved not by an investigator or a prosecutor, but by the investigating judge common with a defendant part. All investigation actions linked with restriction of the rights and freedoms of citizens shall be under control of the investigating judge.
- For the first time in criminal proceedings provided an opportunity to enter into a conciliation agreement between the victim and the suspect or accused person and the plea bargain between the prosecutor and the suspect or accused person.
- The counsel for the defense in criminal proceedings shall be a lawyer registered in the proper manner in the Unified Register of Advocates of Ukraine.
- A stage of criminal proceedings initiation is cancelled. The Code provides the Unified Register of pre-trial investigations.
The Code introduces a "Miranda rule", requiring a law enforcement officers immediately inform the arrested person on his rights and explain grounds for detention.
The introduction of such definition as "criminal misdemeanor" either favors the humanization of the criminal process in Ukraine.
The Code as well provides certain aspects of pre-trial investigation and simplified proceedings in criminal misconduct.
In order to reform the legal profession in accordance with international democratic standards the Verkhovna Rada of Ukraine on July 5, 2012 adopted the new Law of Ukraine "On Advocacy and Legal Practice".
According to this Law the organizational and practices issues of the Bar of Ukraine is carried on the principles of the rule of law, legality, independence, confidentiality and avoidance of conflicts of interest.
At the same time the Bar is independent from state authorities, local governments or officials.
The law expands existing types of advocacy, professional rights and guarantees of legal profession, specified the content of attorney-client privilege and its effective legal protection mechanisms.
The law establishes that attorney request shall be obligatory. A refusal to provide the information on the attorney's request, untimely or incomplete submission of the information or unreliable information, entails the responsibility according to law, except in cases of failure to provide information with restricted access.
The Law empowered the Bar Council of Ukraine to manage the Unified Register of Advocates of Ukraine in order to collect, store, keep and provide reliable information as to the amount and personnel of advocates in Ukraine. Foreign attorneys in accordance with this Law called to the bar in Ukraine. The law also addresses the issues of disciplinary liability of advocates in Ukraine and specific aspects of the status of foreign attorneys.
The Law assigned wide functions of advocate’s self-government based on the principles of eligibility, transparency and enforceability of the resolutions of the advocate’s self-government bodies.
The highest body of advocate self-government in Ukraine is Congress of Advocates. In the periods between Congresses its functions shall perform the Bar Council of Ukraine.
In order to realize the tasks of advocates’ self-government National Association of Advocates of Ukraine has been established, it also performs non-state and non-profit professional organization that unites all advocates of Ukraine.
During 2012 the procedure for the appointment and election of judges was adjusted by the legislator
It has to mentioned that the adoption of the Law of Ukraine "On the Judiciary and Status of Judges" on 7 July 2010 marked the completion of formal legal stage of judicial reform.
Our State accomplished a great legislative work before the adoption of this Law; in fact since the mid-2000-s we were implementing European standards. It is really hard to evaluate the assistance that Ukraine received from the European Commission "For Democracy through Law" (The Venice Commission) in this process.
In particular The Venice Commission adopted the conclusion on the Judiciary and Status of Judges of Ukraine on 16 – 17 March 2007, which recommended combining two drafts of laws into one. In this conclusion it was also mentioned that the appointment of judges is the key issue in judicial independence field in any system and noted the importance of the High Qualification Commission of Judges as a separate authority in Ukraine.
In early 2010 the activation of the work took place towards judicial reform, as a result the revised draft Law of Ukraine "On the Judiciary and Status of Judges" was presented to the Venice Commission, taking into consideration comments concerning the composition of the High Qualification Commission of Judges.
On the 15– 16 October 2010 the Venice Commission adopted a joint conclusion concerning the Law of Ukraine "On the Judiciary and Status of Judges", and in it (p. 126) The Commission has consistently held position on the admissibility of the existence of a separate authority within the judicial system as the High Qualification Commission of Judges; in that conclusion the recommendations on the composition, authorities and powers of the new State body were given.
Taking into consideration the above mentioned the President of Ukraine initiated the completion of the formal legal judiciary reform stage and the 7 July 2010 the Law of Ukraine "On the Judiciary and Status of Judges" was adopted, which established the High Qualification Commission of Judges of Ukraine as a separate permanent authority in the judicial system.
As it was mentioned, the characteristics of the High Qualification Commission of Judges of Ukraine corresponds international standards and the same law empowers the High Qualification Commission of Judges of Ukraine on a wide range of issues related to functioning of the judicial system of our country, in particular:
- Selection of the candidates for judges, verifying their requirements in compliance with the law, evaluating the level of knowledge, training candidates (specialized training), review of the qualification level and providing recommendations for candidates on positions on a competitive basis;
- Judicial appointment with no time limit;
- Issues on promotion of judges (transfers to another court, including the change of an instance and specialization);
- Disciplinary proceedings upon judges of local and appeal courts;
- Coordination and supervision on training of judges (improvement of qualification) by the National School of Judges of Ukraine (institution with special status, formed by the High Qualification Commission of Judges of Ukraine).
During two years and a half the High Qualification Commission of Judges of Ukraine in full scope and in high level performance manner fulfils the functions established by the law.
For example: The Law of Ukraine "On the Judiciary and Status of Judges" radically changed the existing system of recruitment to a judiciary appointment and exactly the High Qualification Commission of Ukraine brought the system into operation, having already 3 national Overhead panels on the principles of equality, transparency, publicity, and competitiveness and on the basis of the priority level of knowledge and skills of persons laying a claim for judiciary office.
In 2013, the High Qualification Commission of Judges provided the last stage of the appointment of judges – special training for the candidates.
The objective of bringing the judicial system of Ukraine to the best international standards, strengthening the authority and prestige of the judicial profession, strengthening the independence of judges all this determines the need in highly professional judges, trained in the proper manner to engage this responsible and honorable position.
The High Qualification Commission of Judges of Ukraine joint with the National School of Judges of Ukraine took important steps forwards these objectives in the organization and special training for the candidates.
Accordingly in our country training of future judges entirely within the court system.
Since the establishment the High Qualification Commission of Judges systematically implements the function of recommendation for judicial appointment with no time limit and conducts disciplinary practice for judges of local and appeal courts.
The High Council of Justice also acts in the frameworks of the Law of Ukraine "On the Judiciary and Status of Judges" and functions according to the special law of Ukraine "On the High Council of Justice".
Then, on the 5 –th of June 2012, the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Strengthening the Guarantees of Judicial Independence" was adopted.
This act amended the Law of Ukraine "On the Judicial System and Status of Judges" and the Law of Ukraine "On the Regulations of the Verkhovna Rada of Ukraine", which resolved some issues relating to the judicial appointment and judicial appointment with no time limit.
This Law provides, inter alia, that the President of Ukraine, the Verkhovna Rada of Ukraine adopts a decision on the appointment and election of judges exclusively within the submissions of the High Council of Justice and the High Qualification Commission of Judges of Ukraine, thus avoiding political influence on the process of election of judges.
Likewise, the Law restricts the right of prosecutors to initiate the bringing judges to disciplinary liability or discharge them.
The Law provides that if the prosecutor involved in the case, prosecutors authorities are allowed to appeal to the High Qualification Commission of Judges or to the High Council of Justice concerning improper conduct of the judge only if such a court case is not in the court of any jurisdiction, or if the procedure set statutory terms of submission of the appeal and cassation complaints has expired.
In order to improve mechanisms for ensuring rights of individuals for retrial, the Parliament of Ukraine on the 24–th of May, 2012 adopted the Law of Ukraine " On Amending Certain Legislative Acts of Ukraine for Ensuring Rights of Individuals for Retrial″.
The Law establishes the possibility of an application for a retrial on the basis of establishing by an international judicial institution which jurisdiction is recognized by Ukraine, violation of Ukraine's international obligations in solving the case even if the copy of such decision is absent, but subject to the addition to the applicant's application for the recovery of copies such decision to the body which is responsible for implementing the decisions of international judicial institution.
We can’t avoid attention the Law of Ukraine "On guarantees of the State concerning the execution of the court decisions," adopted by the Verkhovna Rada of Ukraine on the 5 June, 2012.
This Law establishes a government guarantee on the implementation of judgments and court decisions, the Law of Ukraine "On Enforcement Proceedings", and specific of the implementation.
According to the provisions of this Law, the State guarantees the performance of the court decision on the recovery of assets and liabilities to perform certain actions with regard to the property, on which an obligator is: government agency, state enterprise, institution, organization, entity, enforcement of property which is prohibited by the law.
Execution of court decisions concerning the recovery of funds, for which a debtor is a state authority shall be hold by the State Treasury Service of Ukraine within the relevant budget allocations by debiting the accounts of the state authority, and in case of an absence of the specified public authority related appointments - with funds provided by budget program to ensure compliance with court decisions.
The claimant by the court decision for the recovery of funds from the state agency shall appeal to the State Treasury Service of Ukraine in the terms established by the Law of Ukraine "On Enforcement Proceedings," with a statement on the execution of the court decision.
An enforcement of court decisions for the recovery of funds from a state agency or legal entity shall be hold in order determined by the Law of Ukraine "On Enforcement Proceedings", taking into account the specifications provided by this Law.
The Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on the participation in the hearing by videoconference" adopted on the 4 of July, 2012 by the Verkhovna Rada of Ukraine will increase efficiency of the cases trial.
Such participation is based on the court decision based at the request of the participant of the process or on its own initiative.
The Law also stipulates the utilization of technical facilities and technologies in court proceedings should be implemented in such a way as to ensure the proper quality of picture and sound, the ability of the participants of process to hear and see the hearing process, ask questions and get answers, implement other procedural rights and obligations.
Finally, let me mention that in 2012 at the first time in Ukraine with the assistance of the Swiss Agency for Development and Cooperation the all-Ukrainian public action "Empowering the public confidence in the judiciary" was held.
During the presentation, "Monitoring of judicial independence condition in Ukraine - 2012" the expert opinion was announced: issues linked with the independence, transparency and fairness of the proceedings, according to the results of opinion poll more than 56% of respondents were fully satisfied, almost 23% - in part, and 11, 5% - found it difficult to assess.
At the same time the USAID project “Fair Justice” made the research assessing the level of satisfaction of individuals participated in court proceedings since 2008.
According to the Project information based on the first opinion poll the level of satisfaction of individuals with functioning of courts was 58%.
Follow-up survey showed level - 78%, and the results of the third and fourth surveys gave rate - 81%. The latest poll rating was held in 2012.
Therefore let me state that judicial reform in Ukraine shows positive results, the level of satisfaction of individuals with functioning of courts and the level of trust of population to judicial system of Ukraine increased.