KYIV - November 28, 2020. The 7th year of judicial reform, the constitutional crisis, staff shortage, significant challenges to the independence of the judiciary and many other critical issues were discussed at the two-day IX Judicial Forum of the Ukrainian Bar Association. During the largest legal event, representatives of all branches of government, leading national and international experts identified the current state of the judiciary and jointly formed the vector of its development for the future. Here are the main results of the discussions.
Hanne Juncker, Head of the Council of Europe's Department of Justice and Legal Cooperation, opened the event, noting that judicial reform is among the most difficult. Therefore, the joint development of professional solutions is crucial for its course.
In turn, the President of the Ukrainian Bar Association, Partner at VB PARTNERS Denys Bugay stressed that despite the unusual conditions and quarantine restrictions, the UBA will continue to hold such events regularly: “X Judicial Forum will take place this way or another and we will discuss the future of the judiciary, key issues and achievements. Nothing will stop us.”
As for the main vector of the Forum, its program coordinator, Chair of the UBA Committee on Procedural Law, Managing Partner of the LCF Legal Group Anna Ogrenchuk stressed that there is a categorical judgment - opposite assessments of previous steps to reform the judiciary:
“From my point of view, the successful completion of the reform requires the formation of a balanced and consistent vector of further action by all members of the legal community. Only in the interaction between all of us will we be able to find understanding - exactly what we lack.”
Judicial Reform, Year 7. Results and Forecasts
Almost the most painful issue of Ukraine today was discussed during the first session. Anna Ogrenchuk and Iryna Kushnir, Project Manager of the Council of Europe Project "Support to the Implementation of Judicial Reform in Ukraine" moderated the discussion.
Thus, the recommendations and conclusions of the Venice Commission on the development of judicial reform in Ukraine were analyzed by Gerhard Reisner, rapporteur of the Venice Commission, expert of the Council of Europe. The speaker stressed the critical importance of trust in judges and the immediate resolution of the integrity assessment of the High Council of Justice.
The expert review continued Juro Sessa, an expert of the Council of Europe, former President of the Advisory Council of European Judges (ACEJ), member of the CREC Bureau, President of the Supreme Court of Croatia. He stressed that the responsibility of a judge is inextricably linked to their independence: “One of the conclusions of the CCJE is that judges do not work for anyone. They serve only the law, so they should not receive any instructions, restrictions or interference in their activities by any body. "
Activities of the Supreme Court and the vision of the future judicial system from the Chair of the Supreme Court
Valentyna Danishevska, Chair of the Supreme Court, began her speech by congratulating the Ukrainian Bar Association on its 18th anniversary, thanking them for their fruitful cooperation and professional positions on the development of the judiciary.
“The judiciary needs resources, respect for its independence and peace”
Mrs. Danishevska devoted her report to an overview of the main achievements of the Supreme Court, the challenges facing it and outlined the vision of the further vector of the Court's movement. Regarding the necessary steps for the further vector of the system development, Ms. Danishevska singled out the need to adopt the draft law №3711 in order to form High Qualification Commission of Judges CCJ and solve the problem of staff shortage.
Communication with the judiciary and overcoming the crisis
Andrii Kostin, People's Deputy of Ukraine, Chair of the Verkhovna Rada Committee on Legal Policy, continued the discussion, emphasizing the importance of resuming the dialogue between the judiciary and the relevant committee. According to him, the situation with the proper provision of system resources is far from positive, and the main reason is the lack of mutual understanding between the Ministry of Finance and the State Judicial Administration. The speaker also supported Mrs. Danishevska's speech, emphasizing the priority of finalizing the draft law №3711 on the restoration of the HQCJ.
The next speaker agreed with the priority of adopting the mentioned law. The Chair of High Council of Justice Andriy Ovsienko spoke about the significant staff shortage, which is deepening every day.
“Cognition comes through comparison,” said Andriy Savchuk, a member of the UBA Committee on Procedural Law and a Partner at MORiS GROUP. The speaker reminded that the reform started at the same time as Ilon Mask's project. Since then, the latter has managed to build a spaceship, send people into space, return and make such flights regular. The expert stressed the urgent need to restore the HQCJ and the ethics commission with the participation of international experts. According to him, only these two steps will allow to implement as much as half of the judicial reform.
On the independence of the courts and the dialogue between judges and lawyers
The mentioned problems of the judiciary and guarantees of its independence were discussed in more detail at the second session moderated by Natalia Bohatska, Chair of the South-Western Commercial Court of Appeal, Chair of the Association of Judges of Commercial Courts of Ukraine and Oleksandra Matviychuk, Chair of the Booard of Civil Liberties Center, NGO.
Challenges for Judges' Independence & HCJ Activities
Thus, Diana Kovacheva, an international expert of the Council of Europe project, analyzed the HCJ's annual reports on the state of judicial independence in Ukraine. Bohdan Lvov, Deputy Chair of the Supreme Court, Chair Commercial Court of Cassation within the Supreme Court, returning to the problem of shortage of judges, noted that it is too late to talk about the staff shortage, because now it is a catastrophic personnel situation.
Vira Mykhaylenko, a judge of the High Anti-Corruption Court, shared her thoughts on the level of dialogue between the judges and the defense.
As for the work of the HCJ, Denys Bugay noted that the changes that took place several years ago offered HCJ serious tools to defend the independence of judges. Are they used effectively enough? No. The speaker welcomed the work of the HCJ on the annual reports on the state of independence, and stressed that the work still needs to be deepened. In particular, such reports should be presented in a simpler and more convenient form. Most importantly, we need more communication of these facts among the legal community and society: “Well, in the end, there are already several reports, but no results.”
At the end of the session, Stanislav Maksymyshyn, First Deputy Head of the Judicial Protection Service, highlighted the tasks and functions of the department, spoke about the results of its work and future development strategy, and Svitlana Matvienko, Head of the Laboratory of Legislative Initiatives, stressed the need for legal education in Ukraine to form a public understanding of the main legal aspects.
Current practice of the Supreme Court
The final session of the first day of the Judicial Forum became the most practical. The discussion was moderated by Vsevolod Knyazev, Secretary of the Supreme Court and Serhiy Boyarchukov, Managing Partner of Alekseev, Boyarchukov & Partners Law Firm.
Dmytro Tretyakov, Head of the Filtration Section of the ECtHR Secretariat, spoke about the principle of res judicata in various cases of the ECtHR. He also highlighted the issue of the right to appeal a final judgment by a person who was not involved in the case, within the framework of international standards and national practice.
The next speaker, Dmytro Hudyma, a judge of the Supreme Court, systematized the approaches of the Supreme Court to the methods of protection in different types of legal relations and determining the (in)effectiveness of each of them. The judge also cited the conclusions of the Grand Chamber of the Supreme Court on methods of protection in corporate, lease, credit, mortgage and other legal relations, described some substantive legal means of protection and singled out the category of non-legal disputes that are not subject to litigation.
His colleague, Ivan Mishchenko, a judge of the Supreme Court of Cassation, spoke about the relationship between the principles of legality and adversarial proceedings.
In turn, Natalia Blazhkivska, a judge of the Administrative Court of Cassation within the Supreme Court, considered the issue of retrospective application of the decisions of the Constitutional Court of Ukraine, and Natalia Vasylenko, Deputy Head of the Department of Representation of State Interests in Court of the Prosecutor General's Office, spoke about the representation of the interests of the state in court by the prosecutor, outlining effective ways of protection in individual lawsuits.
At the end of the first day of the forum, Volodymyr Vashchenko, Partner atf VB PARTNERS, considered the recent practice of the Supreme Court in sanction disputes and the problem of adversarial proceedings.
Read more about the first day of the Forum by the link.
The second day of the IX Judicial Forum was opened by Lilith Danegyan-Bossler, Head of the Justice Sector Reform Division of the Department of Justice and Legal Cooperation of the Council of Europe, and Denys Bugay, President of the Ukrainian Bar Association.
The quality of legislation and its impact on Ukraine's investment attractiveness
The first session was moderated by Iryna Kushnir, Project Manager of the Council of Europe Project "Support to Judicial Reform in Ukraine" and Lyudmyla Buimister, Member of Parliament of Ukraine of the 9th convocation.
Claire Brown, Head of the Sector in the Enforcement Division of the ECtHR Directorate General for Human Rights and the Rule of Law of the Council of Europe, spoke about the importance of the enforcement system, noting the need for maximum transparency in the process. She gave examples of ECtHR cases concerning the investment climate in the context of the judiciary and noted the need for proper regulation of state interference in private life.
In turn, Rasim Babanli, Head of the Analytical and Legal Department of the Supreme Court, Ph.D. told about four constitutional submissions of the Supreme Court, sent for consideration to the Constitutional Court of Ukraine during the current year. They concern the following aspects: judicial reform, quarantine restrictions, constitutional immunity of the President of Ukraine and a moratorium on the execution of court decisions.
Ivan Bondarchuk, Counsel to LCF Legal Group, considered the issue of investment attractiveness. According to him, the corresponding index of Ukraine for the first half of this year is 2.51 on a 5-point scale.
In turn, Stanislav Tarasov, Business Development Manager at Ukraine Scatec Solar reminded that investment activities presume cooperation between the government and the industry aimed at partnership. He stressed that any instability leads to reputational risks, and if the legislation changes, the investor will not feel the stability, because it must provide for this in the country's development strategy.
On the moratorium on recovery from the public sector of the economy
The moderator of the second session, Oleg Goretsky, managing partner of Goretsky & Partners, reminded that there are about 4,000 state-owned enterprises in Ukraine, and very often the state uses a mechanism called “moratorium” to protect their interests. Unfortunately, according to the speaker, it mainly violates the interests and rights of other parties.
Pavlo Pushkar, Head of the Enforcement Division of the ECtHR's Directorate General for Human Rights and the Rule of Law of the Council of Europe, supported his thesis, noting that the moratorium is essentially a kind of ban on going to court, appealing against decisions and actions of the authorities. Therefore, in world practice, such a mechanism is rarely used.
In turn, Taras Tarasenko, People's Deputy of Ukraine of the ninth convocation, noted that for certain state-owned enterprises the mechanism is still necessary to control their work. According to him, later, provided the situation in their activities equalizes, such a mechanism will lose its relevance.
Valeria Kolomiets, Deputy Minister of Justice of Ukraine, added that the moratorium on the bankruptcy of state-owned enterprises is used as a fire extinguisher for crisis issues, despite the violation of human rights and the interests of the state:
“Inefficiency of state-owned enterprises is the responsibility of the executive branch, but we have accumulated a lot of strategic issues for the legislature. That is why we need a platform for the development and implementation of joint projects to address them,” said the speaker.
In turn, the partner of LCF Legal Group, arbitration manager Olena Volyanska commented on the moratorium on recovery from JSC “Ukrzaliznytsia” on the obligations of SE “Donetsk Railway”.
About Alternative Dispute Resolution & Arbitration
Deputy Minister of Justice of Ukraine Oleksandr Banchuk commence the final discussion of the forum.
Regarding the draft law №3411 on restoring confidence in the arbitration system, the speaker noted that very tough and unambiguous steps are proposed to implement this initiative. There is already a decision of the Legal Policy Committee to support the government bill.
In turn, Taras Shepel, Chair of the Arbitration Chamber of Ukraine, Chairman of the Arbitration Court at the CCI of Ukraine, Member of the Board of the DEJURE Foundation, highlighted the ways to restore confidence in the arbitration courts and the role of the Arbitration Chamber in this.
President of the Ukrainian Academy of Mediation Luiza Romanadze spoke about the peculiarities of the introduction of mediation in Ukraine and expectations from the new bill of the Cabinet o Ministers on mediation regulation, noting that Ukraine is on the verge of a turning point.
Halyna Yeremenko, head and lecturer of the Ukrainian Mediation Center, also agreed with the speaker, emphasizing that the Ukrainian market is constantly changing, and mediation is becoming an increasingly popular phenomenon every day. In turn, Larysa Shvetsova, a member of the High Council of Justice, noted that currently most judges are in favor of using alternative ways of resolving conflicts, because it will help the parties get the desired result. In addition, mediation will help significantly relieve the courts.
Then the discussion joined Yuna Potemkina, head of alternative dispute resolution group, senior associate at Asters, expert of the working group on drafting a law on mediation. The key thing, according to Ms. Potemkina, is to pay attention to 1. The framework nature of the law. 2. Consolidation of only the basic provisions on the mediation procedure. 3. The principle of extension of the Law "On Mediation" to all types of disputes except for the restrictions provided by law. 4. Minimum state regulation.
For more information about the second day of the forum, please follow the link (in Ukrainian).