The Supreme Court of Ukraine is undergoing yet another major change in connection with the adoption of a new law on the judicial system. They relate to its structure, powers and the formation of the judiciary.
Legislative changes
Previously, the court carried out the tasks of the cassation instance and was the highest link in the country's judicial system. Over time, the country organized higher specialized courts: economic and administrative.
The Supreme Court of Ukraine had the right to review the decisions of these courts, this system was called double cassation and was criticized.
This system was in effect until 2010, when a new law was adopted and the judicial system was rebuilt.
New position
In 2010, it was decided to organize a new higher specialized court, which would deal with criminal and civil cases. This was considered the completion of previous reforms.
VSSU was engaged in:
- consideration of civil and criminal cases in cassation;
- generalization of practice (review of the consideration of specific disputes in a particular area of ββlaw);
- adoption of decisions of the Plenums with general recommendations for resolving disputes: they express an understanding of specific norms of the law without reference to certain cases.
The Supreme Court of Ukraine has only two tasks left:
- make decisions in the same cases with different application of the same rules of law;
- consider cases in connection with decisions of international courts that have recognized a country's failure to fulfill international obligations (most often the ECHR).
How did the court work in the first case? For example, the cassation instance in one case agrees that the issuance of a loan without a license invalidates the transaction, and in the other case it does not.
The applicant lodges a complaint, where he asks to cancel the decision in his case and attach copies of the decisions in similar cases. The court, considering the complaint and the attached materials, could indicate which interpretation of the rule of law is correct or give a new clarification.
The decision of the Supreme Court of Ukraine on such disputes is considered mandatory for judges and authorities.
The results of the plenary sessions and generalization of practice in comparison with the above decisions were and have only a recommendatory character. Thus, a step has been taken in the country to create case law. Some lawyers found the innovation a good one, others did not.
2016 Reform and New Powers
The Supreme Court of Ukraine, in addition to maintaining its status of the highest instance, received all the powers of the Supreme Commercial Court and retained those that it had since 2010.
According to the 2016 law, it performs the following tasks:
- plays the role of a cassation instance;
- considers cases in the first and appeal instances in cases stipulated by laws;
- generalizes practice;
- gives conclusions on bills that affect the judicial system (its organization, status, enforcement of judicial acts, etc.);
- gives an opinion on the existence of a crime in the actions of the President;
- applies to the Constitutional Court for clarification of the Constitution and assessment of the constitutionality of other laws;
- considers, as before, applications for review of judicial acts in connection with the unequal application of laws in similar cases.
New court organization
The decision of the Supreme Court of Ukraine will now be replaced by acts of higher specialized courts: economic and administrative. As soon as the required number of judges is recruited, these institutions will cease their work.
In the new court are:
- large chamber;
- courts of cassation (administrative, civil, economic and criminal). Each court is divided into chambers according to specialization.
What does the big chamber do?
- revises decisions of the cassation instances in cases and in the manner prescribed by law;
- analyzes the application of the legislation by the courts;
- considers on appeal the cases for which one of the cassation courts has acted as the first instance.
What other cases are envisaged for the Supreme Court of Ukraine? The law on the judicial system made reference to other laws, which is quite clear. It is impossible to spell out all possible options in one law, so that in the future it is possible to clarify the competence of the institution.
Judges from each court of cassation of 5 people are elected to the large chamber, and the Chairperson of the Supreme Court is ex officio composed of her.
The court will fully begin to work in accordance with the new law as soon as its formation from the existing higher courts and the current Supreme Court is completed.
Plenums of the court
All judges without exception participate in the plenum. Competency includes:
- election of the chairman of the court, his deputy;
- appeal to the Constitutional Court;
- giving opinions on bills affecting the court;
- solving other issues provided by law.
With the adoption of the new law, the plenums of the Supreme Court in Ukraine are fully related only to issues of an organizational nature, and the administration of justice is not affected, as was the case with the adoption of thematic decisions on the application of legislation in practice.
Impact on practice
Lawyers, working on cases, try to monitor the practice of applying the law by the courts, especially the Supreme Court. And Ukraine is no exception in this regard.
How is the practice of the Supreme Court of Ukraine studied? It is enough to take several cases of the same type and identify the approaches that the court applied in their decision. Of course, each business has its own nuances. However, the study of practice makes it much easier to clarify the prospects of a particular category: how the law is understood, what evidence is sufficient, and what mistakes are made by courts or lawyers.
Regardless of the practice of the court, it has a tremendous impact on judges.
But one question remains open. Previously, only decisions on cases opened due to the unequal application of the law were binding. The decisions of the Plenums or generalizations of practice have always been recommendatory in nature. Judges often use them to substantiate their decision, but also often ignore references to them in complaints and other documents of the applicants and the parties.
It is not clear to the end, but, apparently, in the future only certain decisions of the Supreme Court of Ukraine will remain binding.
The role of ECtHR decisions
The Supreme Courts, acting as a cassation instance, are the last link of the judicial system within the country. Their decisions are final and cannot be appealed, but international law provides a special mechanism that gives a chance to initiate a review of a case.
In recent decades, European citizens have the opportunity to apply to the ECHR.
Its task is to study the decisions of the courts with a view to their compliance with the Convention on Human Rights, and not their revision. Judicial acts of the ECHR oblige the Supreme Court to review the case in the light of national legislation.
Court management
The Supreme or Supreme Court of Ukraine independently decides who will head it. All judges gather and a secret ballot is held. The judge with the most votes becomes the chairman. The judge-secretary of the court or his individual chamber is also chosen.
Similarly, chairpersons and secretaries of cassation courts that are part of the Supreme Court are elected.
In each court, as mentioned above, chambers are formed whose membership is based on the specialization of judges. Each chamber chooses for itself a judge-secretary who is responsible for resolving organizational issues. Elections are held by secret ballot system.
At the moment, the chairman of the Supreme Court is Yaroslav Romanyuk. Due to the fact that part of the judges will be replaced, it is highly likely that he will leave his post. The same applies to the clerks of the judicial chambers who head them.
The election of court leaders by judges is considered a guarantee of the independence of the court from politicians and their short-term interests. Of course, it does not always work, but, nevertheless, has a positive effect.