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| Article title | Reforms of the Constitutional and Legal Framework of Ukraine’s Judiciary System in the Context of the Constitutional Reform of 2016 and International and European Requirements | ||
| Authors |
Doctor of History, Professor, (Kyiv, Ukraine) ORCID iD: https://orcid.org/0000-0003-3381-9840 ryduk37@ukr.net
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| Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) | ||
| Issue | 11/2019 | ||
| Сторінки | [293-315] | ||
| DOI | https://doi.org/10.33498/louu-2019-11-293 | ||
| Annotation | In Ukraine, the regulatory framework for the functioning of the judiciary system is the newly revised Constitution of Ukraine, and other updated and newly adopted laws related to the constitutional reform of 2016, particularly, to issues of justice. The major challenges of the judicial reform in Ukraine have already become the focal point for scholars and scientists. The purpose of the article is to make a comprehensive analysis of the main updated provisions of the Constitution and laws of Ukraine relating to the new judiciary system, the types of general jurisdiction courts, the composition of courts of new levels, and their powers ensuing from their place in the court system, in the context of today’s constitutional reform in Ukraine and international standards. International requirements to the system of judiciary are set out in a number of international and European documents. According to these documents, amendments were made to the Constitution and the Law of Ukraine “On the Judicial System and the Status of Judges”, new laws were adopted. Our country’s judiciary system has undergone significant changes both in content and in form. Its content has been filled with provisions which largely correspond to international standards, as noted by the Organization for Security and Cooperation in Europe (OSCE). The principles underlying the judiciary system have been expanded. Following the repeated insistence by the European Commission for Democracy through Law (Venice Commission), the transition has been made from a four-level judiciary system (local, appellate courts, higher specialized courts, the Supreme Court of Ukraine) to a three-level system (local courts, courts of appeal, the Supreme Court). The revised Law of Ukraine “On the Judicial System and the Status of Judges” eliminated the higher specialized courts and expanded the structure of the Supreme Court which now comprises the cassation courts that consider cases of the categories previously referred to the terms of reference of the higher specialized courts which existed within the framework of civil, criminal, administrative and economic law. This position of the Parliament of Ukraine was approved by the OSCE. For consideration of cases of certain categories, in the judiciary system the Supreme Anti-Corruption Court has been established, on a competitive basis, and operates now, and the competitive selection to the Supreme Court for Intellectual Property and its Chamber of Appeal is underway. Their authority is to consider cases referred to their jurisdiction by procedural law. The article describes the procedure of their establishment as the first- and appellate-level courts which consider cases of separate categories, as well as the structure and the specific features with which they are formed. The author emphasizes the importance of establishment of the Supreme Anti-Corruption Court, and the special role played in its establishment by the Public Council of International Experts. One of the most essential elements of the judicial reform is the liquidation of the Supreme Court of Ukraine and the establishment of the new Supreme Court. Amendments to the Constitution of Ukraine improved its structure and updated the content of operation. Today, the Supreme Court is the only court of cassation. It remains the highest court in the judicial system of Ukraine which ensures the consistency and unity of court practice, and this was positively assessed by the OSCE. The powers of the Supreme Court have been expanded, a new composition has been formed in terms of quantity and quality, and there is the intent of its further update according to the amendments of October 16, 2019; the Court’s structure has changed radically, the role of its Plenum has been enhanced, etc. In order to depoliticize and eliminate pressure on the judiciary and in accordance with the recommendations of the Venice Commission, the entity establishing and liquidating courts has been changed (currently, it is the Verkhovna Rada, not the President of Ukraine). While endorsing the positive elements of the reforms of the judiciary system, the OSCE noted in its Opinion of June 30, 2017 that some provisions of the Law on the Judicial System and the Status of Judges should be revised or further improved. The Commission emphasized the need to create detailed procedural legislation which would regulate the functioning of the new judiciary system. The author notes that in the course of judicial reform, many problems have arisen: qualification assessment of the candidates for the position of judge is slow and not always transparent, the newly established local courts and courts of appeal are sorely lacking judicial staff, the case load of judges increases and this leads to the declining efficiency and quality with which cases are considered, and negatively affects the principle of citizens’ access to justice. The author believes that amendments to the laws of Ukraine on the judicial system and the status of judges and the Supreme Council of Justice of October 16, 2019 will be conductive to improvement of the composition of the Supreme Court and judicial administration, etc.
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| Keywords | Constitution of Ukraine; reforming; constitutional and legal framework; system; judiciary system; international and European standards | ||
| References |
Bibliography
Authored books 1. Khotynska-Nor O, Teoriia i praktyka sudovoi reformy v Ukraini [Theory and Practice of the Judicial Reform in Ukraine] (Alerta, Pravova yednist 2016) (in Ukrainian).
2. Kuibida R ta inshi, Formuvannia novoho Verkhovnoho Sudu: kliuchovi uroky [Forming of the New Supreme Court: Key Lessons] 3. Sudova reforma v Ukraini: realii ta perspektyvy: materialy naukovo-praktychnoi konferentsii 18 lystopada 2016 r. [Judicial Reform in Ukraine: Realities and Prospects: Materials of Scientific and Practical Conference of 18.11.2016] (Instytut zakonodavstva Verkhovnoi Rady Ukrainy 2017) (in Ukrainian).
Edited books 4. Maliarenko V, ‘Sudoustrii’ [‘System of Judiciary’] v Shemshuchenko Yu holov red, Yurydychna entsyklopediia [Encyclopedia of Law], t 5 (Vyd-vo “Ukrainska entsyklopediia” imeni M P Bazhana 2003) 717-8.
Journal articles 5. ‘Konstytutsiinyi protses: potochnyi rezultat, ryzyky i perspektyvy: Analitychna dopovid Tsentru Razumkova’ [‘The Constitutional Process: Current Result, Risks and Prospects: Analytical Report by the Razumkov Center’] (2016) 5-6 Natsionalna bezpeka i oborona 3-52 (in Ukrainian). 6. ‘Utverdzhennia yevropeiskoi modeli sudochynstva i verkhovenstva prava – priorytety sudovoi reformy ta vidnovlennia suspilnoi doviry do sudiv v Ukraini: interviu uchasnykiv forumu – zhurnalu “Pravo Ukrainy”’ [‘Establishment of the European Judicial Model and the Rule of Law – Priorities of the Judicial Reform and Rebuilding of Public Trust in Courts of Law in Ukraine: Interview by Participants of the Forum – Journal “Law of Ukraine”] (2014) 11 Pravo Ukrainy 74-135 (in Ukrainian). 7. Horodovenko V, ‘Realizatsiia pryntsypu verkhovenstva prava u tsyvilnomu sudochynstvi v umovakh reformuvannia pravosuddia’ [‘Implementation of the Rule of Law Principle in Civil Court Procedure in the Context of Reforms of Justice’] (2018) 3 Pravo Ukrainy 65-78 (in Ukrainian). 8. Krusian A, ‘Konstytutsiina yustytsiia ta konstytutsiini peretvorennia v Ukraini’ [‘Constitutional Justice and Constitutional Transformations in Ukraine’] (2016) 1 Ukrainskyi chasopys konstytutsiinoho prava 31-6 (in Ukrainian). 9. Moskvych L, ‘Dovira do sudu: stan ta instrumenty vplyvu’ [‘Trust in the Court of Law: Current Situation and Instruments of Influence’] (2018) 3 Pravo Ukrainy 9-25 (in Ukrainian). 10. Prylutskyi S, ‘Sud yak pershoosnova predmeta sudovoho prava Ukrainy’ [‘Court as the Key Pillar of the Subject Matter of Judicial Law in Ukraine’] (2018) 3 Pravo Ukrainy 26-51 (in Ukrainian). 11. Shcherbaniuk O, ‘Indyvidualna konstytutsiina skarha yak zasib zabezpechennia konstytutsiinoi demokratii’ [‘Individual Constitutional Complaint as a Means of Ensuring Constitutional Democracy’] (2018) 12 Pravo Ukrainy 77-91 (in Ukrainian). 12. Shemshuchenko Yu, ‘Sudova reforma v Ukraini u svitli yevropeiskoho dosvidu: konstytutsiinyi aspekt’ [‘Judicial Reform in Ukraine in the Light of the European Experience: the Constitutional Aspect’] [2016] 6(33) Chasopys tsyvilnoho i kryminalnoho sudochynstva 48-9 (in Ukrainian).
Conference papers 13. ‘Suchasni vyklyky ta aktualni problemy sudovoi reformy v Ukraini: materialy II Mizhnarodnoi naukovo-praktychnoi konferentsii’ [‘Modern Challenges and Topical Issues of the Judicial Reform in Ukraine: Materials of the Second International Scientific and Practical Conference’] (Shcherbaniuk O holova redkol, 2018) (in Ukrainian).
Newspapers 14. ‘U nas unikalnyi shans – provesty vsi neobkhidni reformy’ [‘We Have a Unique Chance – to Make All of the Necessary Reforms’] Holos Ukrainy (3 veresnia 2019) 1-2 (in Ukrainian). 15. Selivanov A ta inshi, ‘Vidkrytyi lyst – Zvernennia osoblyvoho suspilnoho znachennia’ [‘Open Letter – Appeal of Special Public Importance’] Holos Ukrainy (29 serpnia 2019) 7 (in Ukrainian). 16. Selivanov A, ‘Sudova vlada maie proity reformu ponovlennia svoho avtorytetu i doviry’ [‘The Judiciary Should Undergo a Reform to Rebuild the Credibility and Trust in It’] Holos Ukrainy (7 lystopada 2017) 4 (in Ukrainian).
Websites
17. ‘Dniprovskyi apeliatsiinyi sud napravyv do VKKSU ta VRP zvernennia z pryvodu aktualnoi problemy – nestachi suddivskykh kadriv v apeliatsiinomu sudi’ [‘Dnipro Court of Appeal Submitted an Appeal to the High Qualification Commission of Judges of Ukraine and the High Judicial Council Regarding the Topical Issue – the Lack of Judicial Staff at the Court of Appeal’]
18. ‘Novyi Verkhovnyi sud na try chetverti skladatymetsia iz suddiv – rezultaty konkursu’ [‘The New Supreme Court by Three Quarters Will Consist of Judges – Competition Results’] (Unian, 28.07.2017)
19. ‘Oholosheno konkurs na zainiattia vakantnykh posad suddiv apeliatsiinykh sudiv: Vyshcha kvalifikatsiina komisiia suddiv Ukrainy’ [‘Competition for Vacant Positions of Appellate Court Judges Has Been Announced: High Qualification Commission of Judges of Ukraine’]
20. ‘Spilna zaiava shchodo sytuatsii v sudovii systemi holiv VS, VRP, VKKSU, RSU, DSA Ukrainy, rektora NShSU’ [‘Joint Statement on the Situation in the Judicial System Regarding Chairmen of the Supreme Court, the High Judicial Council, the High Qualification Commission of Judges of Ukraine, the Council of Judges of Ukraine, the State Judicial Administration of Ukraine, and Rector of the National School of Judges of Ukraine’]
21. ‘Stosovno sytuatsii navkolo konkursu na posadu suddi mistsevoho sudu’ [‘On the Situation around the Competition for the Position of Local Court Judge’] (Vyshcha kvalifikatsiina komisiia suddiv)
22. ‘VKKS nazvala 39 peremozhtsiv na posady do antykorsudu’ [‘High Qualification Commission of Judges of Ukraine Named 39 Winners to Hold Positions at the Anti-Corruption Court’] (Ukrainska pravda, 06.03.2019)
23. Tkachuk O, ‘Plenum VS maie vyslovytysia shchodo nestachi suddivskykh kadriv u sudakh ta problem, shcho poviazani iz kvalifotsiniuvanniam’ [‘The Plenum of the Supreme Court Should Express Its Position Regarding the Lack of Judicial Staff in Courts and the Problems Associated with Qualification Assessment’]
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