Judicial reform – along with anti-corruption reforms – are among those most anticipated by business, foreign investors, and international lenders. Moreover, successful judicial reform is crucial for the broader spectrum of reforms in Ukraine because enacting reform oriented laws will achieve little if they will not be enforced and adjudicated in a fair and transparent manner.
On 30 September 2016, a legislative initiative regulating Ukraine’s judiciary (commonly referred to as “the Judicial Reform”) came into force. The initiative includes:
While it is premature to fully assess the effectiveness of this Judicial Reform (particularly since this is only the beginning of what is expected to be a multi-year process), the launch of the reform is perceived as a positive sign. Below we summarise six major aspects of the Judicial Reform:
1. Monopoly of licensed attorneys
Licensed attorneys receive an exclusive right to represent individuals and legal entities in courts. In the past the representation by a licensed attorney was only required in criminal cases.
2. Partial waiver of judicial immunity
The Judicial Reform waives absolute judicial immunity as a step towards ensuring accountability of judges on and off the bench. No approval for arresting a judge is required in case such judge is apprehended at the crime scene immediately after committing a crime. In all other cases judicial immunity may be waived by the High Council of Justice, which is expected to be a much faster and more effective procedure compared to applying for such waiver from Parliament (as previously required).
3. Reformed Court System
The Judicial Reform provides for the dissolution of Higher Specialised Courts and for the Supreme Court to partially assume their functions. Also, the Supreme Court will now include the Grand Chamber, the criminal court of cassation, the civil court of cassation, the commercial court of cassation, and the administrative court of cassation.
Although the Judicial Reform refers to a 3-tier structure for the Ukrainian judiciary, it appears that the previous 4-level system of judicial review has been retained.
4. Cleansing of the judiciary
This restructuring of the Ukrainian courts is anticipated to be a comprehensive cleansing of judicial ranks as it will result in the dismissal of all judges appointed prior to 30 September 2016, and appointment of new judges through what should be a competitive and transparent process. Also, the first time in Ukrainian history, eligibility to serve on the Supreme Court and courts of appeal will be opened not only to judges but also to legal practitioners and academics. However, it remains to be seen whether the newly appointed judges will be reform oriented individuals, or rather status quo judges.
5. New specialised courts
Two new courts are introduced: the Higher Court on Intellectual Property, and the Higher Anti-Corruption Court. It is not yet clear what their jurisdiction will encompass.
6. Constitutional complaint
The Judicial Reform introduces the new instrument of the constitutional complaint. A constitutional complaint may be filed with the Constitutional Court of Ukraine by an individual or legal entity who considers that a provision of law that was applied against them in a final judicial ruling contradicts the Constitution of Ukraine. The constitutional complaint can only be filed after all other relevant remedies are exhausted.
If you would like to receive further information in connection with the above, please contact Sergiy Gryshko.