Nedogybchenko N. I.,
student of Educational and Research Law Institute of the National Aviation University, Ukraine, Kyiv
Scientific supervisor: Tolkachova I. A., Ph.D., Associate Professor
STUDY OF THE NEW LAW OF UKRAINE “ON THE JUDICIAL SYSTEM AND STATUS OF JUDGES”
At
this stage of European integration judicial reform is extremely important for
Ukraine. This is because there is a need to strengthen judicial protection of
the rights and freedoms of citizens of Ukraine, which is guaranteed in Part
3, Article 8 and Part 1, Article 55 of the Constitution of Ukraine as well
as in a number of international treaties ratified by the Supreme Council of Ukraine.
With
the adoption of a new law of Ukraine “On the Judicial System and Status of
Judges”, expected major changes in the judicial system of Ukraine will largely depend
on the practical realization of the law.
The
main novels of this law are the formation of a three-tier judicial system, the
institution of constitutional complaint, the creation of the High Court of Intellectual
Property of Ukraine and the High Anti-Corruption Court of Ukraine, new
requirements for candidate judges and their order of taking office.
We
consider in more detail the innovations in the law and the mechanisms for
practical realization.
According to Article 17 of the new law, there will be created
a three-tier court system (Local Courts, Courts of Appeal and the Supreme
Court, consisting of four acting cassation courts (economic, administrative,
civil and penal) and the Grand Chamber of the Supreme Court) [2]. It
should be noted that Ukraine had a four-tier court system: Local Courts, Courts
of Appeal, High Courts with specialized jurisdiction, and the Supreme Court of
Ukraine.
The
new version of Article 55 of the Constitution of Ukraine provides that every
person with the constitutional complaint has the right to appeal to the
Constitutional Court of Ukraine on the grounds established by this Constitution
and in a manner prescribed by law [1]. That will be the Ukrainian
legislation Amparo procedure - the protection mechanism of constitutional
rights. In foreign countries such as Mexico, Germany and Spain it is an
effective and inexpensive tool for the protection of individual rights.
For
different categories of cases in the judicial system of Ukraine there are two
highly specialized courts: the High Court of Intellectual Property of Ukraine and the High Anti-Corruption Court of
Ukraine. These courts are to be formed within twelve months from the effective date
of the Law of Ukraine “On the Judicial System and Status of Judges”. However,
the High Anti-Corruption Court of Ukraine, according to Clause 16 of new law, is
to be formed within twelve months from the date of enactment of a special law that
would regulate the jurisdiction of this court.
According
to the aforementioned law, judges, who will be members of the High Court of Intellectual
Property of Ukraine, are not
required to have or obtain further technical education. This in turn is impractical
because the requisite education can lead to cost reduction to the parties of
the cases of intellectual property. For all patent courts of foreign countries
such requirements are mandatory. This saves time and money considerably for the
parties in the trial [3]. The question as to specific categories of cases,
considered by the High Court of Intellectual Property of Ukraine, remains
obscure. The law only states that the Highly Specialized Court of Intellectual
Property will 1) provide justice as a court of first instance in cases
determined by procedural law; 2) analyze the court statistics, study and
summarize judicial practice, inform the Supreme Court about the results of generalization
of judicial practice; 3) exercise other powers under the law [2].
According to the presented concept of “Transparency
International Ukraine” and “Intensive Care Reform Package” upon the
establishment of the High
Anti-Corruption Court of Ukraine it is expected that the court will
consider cases belonging to the jurisdiction of the National Anti-Corruption
Bureau of Ukraine and coordinate the investigative actions of detectives.
Specialization of the High
Anti-Corruption Court of Ukraine is not to review all cases of
corruption, but only the affairs of Bureau which justified many “corruption”
cases, decisions on these will require 200-300
judges. Perhaps the competence of the High Anti-Corruption Court of Ukraine will contain
cases of the State Bureau of Investigation regarding certain categories of
persons - is one of the proposals put forward during the discussion of the
concept [4].
The
new law changed the requirements for judges. Thus, a judge must be a citizen of
Ukraine, not younger than thirty and not older than sixty five years, who has law
degree and professional experience in the field of law for at least five years,
is competent, virtuous and speaks the state language.
It
is envisioned that the appointment of judges is made by the President of
Ukraine on the basis of submission of the High Council of Justice, issuing a
decree within thirty days on receipt of the submission of the Supreme Council
of Justice.
In
conclusion, it should be noted that the adoption of the new law of Ukraine “On
Judicial System and Status of Judges” will bring about such changes in the Ukrainian
proceedings as the choice of a judge on a competitive basis, the courts being
created and abolished only by law, guaranteeing the independence of judges by abrogating
his temporary appointment (first five years), fighting corruption among judges
by scrutinizing their standard of living and that of their families by means of
submission of declarations. These and other changes will ensure respect for the
rule of law, which is the basis of our State.
References:
1. The Constitution of Ukraine // Supreme Council of
Ukraine. – 1996. – ¹ 30. – Art. 141.
2. On the Judicial System and Status of Judges: Law of Ukraine from 02.06.2016
¹ 1402-VIII // The Supreme Council of Ukraine. – 2016 – ¹ 31 – Art. 545.
3. The High
Court of Intellectual Property of Ukraine [Electronic resource]. – Access: http://forbes.net.ua/ua/opinions/1419572-chim-bude-korisnij-vishchij-sud-z-pitan-intelektualnoyi-vlasnosti.
4. How the
High Anti-Corruption Court of Ukraine will work? [Electronic resource]. – Access: http://adm.od.court.gov.ua/sud1570/menu1/news/281226/.