The Secretary of the Grand Chamber of the Supreme Court outlined priorities for the development of the judiciary of Ukraine in 2021-2022

On 1 March 2021 the Council of Europe project “Support for judicial institutions and processes to strengthen access to justice in Ukraine” (Project) commenced its work.

Vsevolod Kniazev, Secretary of the Grand Chamber of the Supreme Court took part in the round table that was held in order to launch the Project.

Vsevolod Knyazev welcomed launching by the Council of Europe of the new Project and underlined the important role of international partners, their assistance and support in realization of judicial reform in Ukraine.

"We are grateful to the Council of Europe Project for its fair finding of existing problems in Ukraine's judiciary and hope for its advisory and expert support. For its part, the Supreme Court will consider in its practice the Project’s recommendations, in the hope for the same from the lawmaker on the points of law development", said the Secretary of the Grand Chamber of the Supreme Court.

Vsevolod Kniazev focused on challenges and outlined the priorities for the judiciary’s development in Ukraine in 2021-2022.

According to him, a task to get rid of the problem of court underfunding is a top priority. "It is necessary to think in what way the system of financing the courts of the first and appellate instances should be reformed so that the judiciary doesn’t depend on the executive power. If the funding of the judiciary is not restored and the relevant legislative changes are not adopted, no further reforms can be discussed then”, outlined the speaker.

He pointed to the issue of establishing the High Qualification Commission of Judges of Ukraine that is still unresolved, and in this respect, to the staff shortages in the courts and uncompleted assessment of judges for the first and appellate instances, and expressed hope for their urgent settlement following the laws amending.

The introduction of procedural filters in the court of cassation, according to the speaker, has not brought the expected benefits. "On the one hand, we didn’t facilitate the work of cassation judges, and on the other, we haven’t got a full-fledged cassation review. Moreover, there are sensitive categories of cases, which actually do not reach the court of cassation (e. g. alimony recovery, pension, protection of honor and dignity, etc.). Therefore, in resolving this issue, it is necessary to consider international experience: it should be the solely discretion of the Supreme Court to choose which cases to accept and develop the relevant case law", said V. Kniazev.

It is necessary to move on towards the laws development to ensure the coherent case law. In this respect, the Supreme Court with the support of its international partners, has recently developed and presented a search system to find the relevant SC’s case law that will soon be launched for the first and appellate instance courts and then for the lawyers and citizens.

The implementation of the international obligations that Ukraine has undertaken by signing a Memorandum with the International Monetary Fund, notably as concerns establishment of the HCJ and HQCU, requires specification and discussion. "It is necessary to look for such compromises where in the process of establishment of the HCJ as a constitutional body the state sovereignty should be preserved. Precisely, because the constitutional body shall be formed by Ukrainian citizens in a representative and democratic way. On the other hand, it is extremely important that international experts should participate in these processes. Firstly, it will reduce the level of corruption risks when these institutions are being established. Secondly, it will give them more public trust”, underlined the Secretary of the Grand Chamber of the SC.

In addition, transferring of a certain category of cases from the jurisdiction of the Kyiv Circuit Administrative Court to the Supreme Court, as it also stated in the Memorandum, will burden the Grand Chamber of the Supreme Court as an appeal instance for these cases.

"This requires improvement. It could probably be achieved by distinguishing cases, which will be heard by the Supreme Court in the first instance and by the Grand Chamber of the Supreme Court in appeal instance. And also by transferring some categories of cases to be heard by the Sixth Administrative Court of Appeal, and then to the Administrative Cassation Court of the Supreme Court”, suggested Vsevolod Kniazev.

Furthermore, it is also necessary to address an issue of representation and self-representation of the government agencies in the courts and remove existing conflict of the oaths of a public official and a defense lawyer as his/her representative in the court. "Self-representation is not sufficiently regulated by law as of today. The Supreme Court is not capable to correct fully this situation through its practice. In addition, there are serious debates among the judges of the Supreme Court in respect of whether such a practice would be correct in the context of insufficient legal regulation", said the speaker.

The idea to use the ADR (judicial and extra-judicial mediation), which will unburden the courts of first and appellate instances is still of particular importance.

Finally, in focus of the speaker there was an issue of disciplinary liability of judges and, in particular, execution by Ukraine of the ECtHR’s judgment in the case of “Oleksandr Volkov v. Ukraine”. In this context, the Secretary of the GC SC drew his attention to the fact of existing of the rules on disciplinary sanctions for breaches of judicial ethics directly contradicting the Council of Europe’s standards.

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The Project will be implemented in 2021-2022 and financed by the CoE directly. The main beneficiaries of the Project are the Supreme Court, the Committee on Legal Policy of the Verkhovna Rada of Ukraine, the Ministry of Justice of Ukraine, the High Council of Justice, the Free Legal Aid Coordination Center, and the National School of Judges of Ukraine.

The Project’s priorities are: to provide Ukraine with an expert support for reforming of legislation, governing the functioning of judiciary and access to justice, and providing free legal aid; to support the Supreme Court and courts of lower instances in ensuring access to justice, coherent case law, and compliance with legal certainty in line with the Council of Europe standards; to support the development of the free legal aid system, including with regard to the quality of its services in civil and administrative cases.