Results of the plenary session of the Supreme Court: Vice President of the Supreme Court elected, task forces for the strategic development of the Supreme Court established and opinion on draft laws on the improvement of the SC Grand Chamber adopted

Today, 6 October 2023, the Supreme Court held a regular plenary session, during which the Supreme Court judges, after considering the proposal of the President of the Supreme Court Stanislav Kravchenko, elected by secret ballot Oleksandr Mamalui, judge of the Commercial Cassation Court, as Vice President of the Supreme Court for a term of four years.

Also, in order to ensure the effective operation and strategic development of the Supreme Court, the SC Plenum, after hearing and discussing the report of the Secretary of the SC Plenum Dmytro Luspenyk, decided to establish working groups on the following issues:

1) strategy for ensuring the uniformity of case law;

2) standards for the structure of a court decision;

3) communication strategy and transparency of the court's activities;

4) anti-corruption programme;

5) basic principles of judicial management (effective management of the Supreme Court's activities).

Another important item on the agenda was the adoption of an opinion on two draft laws aimed at improving the functioning of the Grand Chamber of the Supreme Court. According to the explanatory notes, the purpose of the draft laws of Ukraine "On Amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" and some other legislative acts of Ukraine on improving the functioning of the Grand Chamber of the Supreme Court" of 23 August 2023 No. 9643 and "On Amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" on improving the functioning of the Grand Chamber of the Supreme Court" of 7 September 2023 No. 9643-1 is to optimise the composition of the Grand Chamber of the Supreme Court and its functional capacity.

The speaker on this issue, the President of the Supreme Court, Stanislav Kravchenko, first noted that the Plenum of the Supreme Court generally shared the need for legislative improvement of certain aspects of the functioning of the Grand Chamber of the Supreme Court. However, the Plenum of the Supreme Court considers it appropriate to express certain reservations regarding draft laws No. 9643 and No. 9643-1.

In particular, as stated in the conclusion, the Plenum of the Supreme Court supports the legislative proposal to reduce the number of members of the Grand Chamber of the Supreme Court. However, as the draft laws provide for such a reduction from 21 to 14 judges, the SC Plenum pointed out that it is a well-established approach that each judicial panel should comprise an odd number of judges. This avoids cases where a decision cannot be reached because it is impossible to determine the majority of the judges on the panel. Therefore, the Plenum of the Supreme Court considers that the legislation should provide for an uneven number of judges to be members of the Grand Chamber of the Supreme Court, namely 13 judges. "The implementation of such an approach will make it possible to preserve the idea of the election of the Secretary of the Grand Chamber by the Plenum of the Supreme Court, to ensure an uneven number of judges in the Grand Chamber (13) and to eliminate the problem of jurisdictional imbalance that may arise in case of implementation of the approach proposed in the draft laws," the President of the Supreme Court stated.

With regard to the delegation of powers to the Plenum of the Supreme Court to elect the Secretary of the Grand Chamber of the Supreme Court, the opinion notes that in connection with this amendment, Article 45 of the Law of Ukraine "On the Judiciary and the Status of Judges" should be supplemented by a provision stating that in the absence of the Secretary of the Grand Chamber of the Supreme Court, his powers shall be exercised by the Judge of the Grand Chamber of the Supreme Court with the longest service as a Judge.

With respect to the provision of the draft laws that cases in which the Grand Chamber of the Supreme Court is a court of appeal shall be distributed among all the judges of that Chamber, regardless of the specialisation of the judges and the court's jurisdiction, the Plenum of the Supreme Court noted that it is advisable to delegate such matters to the Plenum of the Supreme Court rather than to provide for them in the legislation.

Draft Law No. 9643 proposes, inter alia, to define only two grounds for referring cases to the Grand Chamber of the Supreme Court: the existence of divergent practices in the cassation courts and the need to resolve the question of jurisdiction. Stanislav Kravchenko, in particular, stressed that the current problems of judicial practice are leading to a wider list of such grounds. In addition, the SC Plenum considers that the legislation should introduce a definition of the term "exceptional legal problem" with regard to the grounds for referring cases to the Grand Chamber of the Supreme Court.

Regarding the continuation of the administration of justice by judges of the Grand Chamber of the Supreme Court in the relevant cassation court (Draft Law No. 9643), the SC Plenum warned in its opinion that the implementation of such an approach would make it impossible for judges of the Grand Chamber of the Supreme Court to properly administer justice both in the Grand Chamber of the Supreme Court and in the cassation courts. Since the Supreme Court considers cases in a collegial manner, if the approach envisaged by Draft Law No. 9643 is implemented, the scheduling of cases will need to be coordinated not only with judges who are members of the panels of the cassation court, but also with judges from other cassation courts. This will inevitably lead to a destabilisation of the judicial process.

The SC Plenum also stated in its opinion that it supported the initiative to empower the assembly of judges of cassation courts to recall judges of the Grand Chamber of the Supreme Court, but that such recall should provide for additional guarantees for judges of the Grand Chamber of the Supreme Court.

Therefore, after hearing the report of the President of the Supreme Court, the Plenum of the Supreme Court proposed that the Verkhovna Rada of Ukraine reject Draft Law No. 9643 and revise Draft Law No. 9643-1 in accordance with the considerations set out in the opinion.

In addition, the meeting amended the Rules of Procedure of the Supreme Court Plenum regarding the provision of opinions on draft legislative acts and consideration of constitutional petitions, and approved the budget request of the Supreme Court for 2024.