Ukraine starts reform of judicial system

Baker&McKenzie, Kyiv, Ukraine
Thu, March 5, 2015

Recent developments  

From 28 March 2015 the powers ofthe Supreme Court will be enhanced and new rules will apply to the selectionand disciplining of judges, in what is the first step in an expected majoroverhaul of the judicial system in Ukraine.

The changes were introduced whenon 24 February 2015 the President of Ukraine signed the Law of Ukraine “OnEnsuring the Right to a Fair Trial” (the “Law”).

What the Law says

Powers of Supreme Court

The Law extends the powers of theSupreme Court of Ukraine and the grounds for review of court decisions by theSupreme Court. Parties may submit applications for review of cassation courtdecisions directly to the Supreme Court (currently the cassation courts decidewhether to forward such applications to the Supreme Court). The new grounds forreview include inconsistent application of procedural rules by the cassationcourts preventing further consideration of cases, lower courts not properlyapplying the rules on jurisdiction, as well as incompatibility of a cassationcourt’s decision with the legal positions of the Supreme Court. Legal positionsendorsed by the Supreme Court are binding for all public bodies including lowercourts, which can however deviate from those positions on reasonable grounds.

Appointment of judges

The Law increases therequirements for the professional qualifications of judges. The HighQualification Commission of Judges is responsible for the initial selection ofcandidates, who must then be approved by the High Council of Justice ofUkraine. The President of Ukraine appoints judges for an initial 5-year termupon the recommendations of the High Council of Justice of Ukraine.

Disciplinary sanctions for judges

The Law also amends the rules onprofessional misconduct by judges. Professional misconduct now encompassesgroundless refusal of access to justice, unmotivated rejection of parties’arguments in a court decision, failure to notify the law enforcementauthorities of influence on the judge by outside persons, etc. Only licensedattorneys admitted to the Bar can now file complaints against unlawful actionsof a judge on behalf of a legal entity. Disciplinary cases concerning judges ofthe local and appellate courts will be considered by the High QualificationCommission of Judges and the High Council of Justice will consider thoseinvolving judges of the higher courts and the Supreme Court. The  Law alsoextends the range of disciplinary sanctions applicable to judges, which nowinclude a warning, reprimand, temporary removal from office (up to six months),transfer of a judge to a court of lower instance or the High Council of Justicefiling a motion on complete removal from office (in cases of violation of thejudicial oath). 

Impact on Business

The extension of the powers ofthe Supreme Court of Ukraine and the grounds for review of court decisions bythe Supreme Court may delay consideration of court cases. On the other hand,the parties will have more procedural tools to deal with an inconsistent orprejudiced approach by lower courts through revision by the Supreme Court.

Conclusion

The Law is expected to be theinitial stage in a major overhaul of the Ukrainian judicial system. Inparticular, enhancing the powers of the Supreme Court will facilitateconsistency of court practice and improve the predictability of the whole legalsystem. Amendments to the rules on selection of, and sanctions for, judges areexpected to improve the professional attitude of judges.

Additional notes

ThisLEGAL ALERT is issued to inform Baker & McKenzie clients and otherinterested parties of legal developments that may affect or otherwise be ofinterest to them. The comments above do not constitute legal or other adviceand should not be regarded as a substitute for specific advice in individualcases.