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Aneta Majchrowicz-Bączyk

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At the beginning of September 2016, amendments to the Constitution of Ukraine and the law on the Judicial System and the Status of Judges, which specifies the provisions of the amendment, entered into force in Ukraine. Those laws were passed by the Ukrainian parliament on 2 June 2016 and they just usher in the long-awaited judiciary reform in Ukraine. The reform is expected to be a major overhaul of Ukraine’s judicial system, and above all, it is aimed at eradicating corruption widespread in the judiciary. The changes are planned to be introduced gradually over the course of the next few years. Ultimately, the authors of the reform abandoned the idea of the public screening of judges, despite the fact that it was awaited by a large part of the Ukrainian society. 

The most important changes introduced by the abovementioned acts include:

  1. A four-tier system of courts to be changed into a three-tier one consisting of: district courts, regional courts and the Supreme Court. 
  2. Courts of cassation are to be liquidated, with the Supreme Court being the only cassation authority. When it comes to the panel of judges of the new Supreme Court, it will be allowed to appoint also lawyers with no judicial experience, such as attorneys at law, academics, etc. 
  3. The reform changes the procedure for the appointment of judges. So far, judges were appointed (elected) by the President for a five-year trial period after which the Supreme Council appointed them for an indefinite period. The reform does away with the trial period and the judges will be appointed by the President upon nomination from the High Council of Justice. The President cannot reject such a nomination. 
  4. The new law provides for the establishment of two new courts: the High Anti-Corruption Court and the High Court on Intellectual Property. 
  5. Candidates for judges nominated by the High Council of Justice will be selected on the basis of a competitive procedure. 
  6. The judiciary reform extends the powers of the High Council of Justice. It is a constitutional body whose powers were so far limited to proposing candidates for judges to the President and the parliament. After the reform, the Council will be dealing with issues related to disciplinary proceedings against judges and lifting their immunity. 
  7. The minimum age of candidates for office of a judge has been increased. A candidate for a judge must be a Ukrainian citizen being over 30 (formerly it was 25 years old). The candidates must have at least five years of professional legal experience (formerly it was three years). The age limit for becoming a judge is 65 years. 
  8. The judges currently in office will have to undergo a test of their professional competence and honesty. 
  9. The judges are obliged to declare their property and its origin. It will be possible to dismiss judges if they fail to indicate the origin of their property.
  10. Judges must also disclose their family ties. The obligation applies to indicating relatives who hold positions in other state bodies or in business. 
  11. To effectively prevent corruption, the reform provides for significant pay rises for judges. The remuneration of a district court judge is planned to amount to 30-fold of the minimum wage, for a regional court judge it will be 50-fold of the minimum wage, and in the case of a Supreme Court judge – 75-fold of the minimum wage (currently, the minimum wage in Ukraine amounts to UAH 1,450, EUR 1 = UAH 29). Apart from that, judges will be entitled to additional allowances.
  12. The reform makes it possible for individuals to lodge a complaint with the Constitutional Court ("a constitutional complaint") if the court-related options have been exhausted and the applicant feels that the legal act underlying the court ruling is in conflict with the constitution. 
  13. The reform amends the regulations on court representation. So far, every lawyer could represent the party in court proceedings. The exception were criminal cases, where only an attorney (advocate) was allowed to represent the party. In the future, the parties will be represented before court only by lawyers with a licence to act as attorneys. In this case, transitional periods have been introduced: from 2017 only attorneys will be allowed to represent clients in the Supreme Court, for regional courts it will be the beginning of 2018 and for all courts – the beginning of 2019.

Summary: Judiciary reform in Ukraine

Adopting the amendments to the constitution and passing the laws that launch the judicial reform is surely a good start and the necessary first step on the way to putting the Ukrainian judicial system back on track. It needs to be emphasised, however, that this is only the beginning of a long process of transforming the entire system. Some elements of the reform will need to be regulated in detail in additional legal acts. As it is always the case with transformations, the results will not be visible right away. However, the reform is undoubtedly the right step forward. 

14.11.2016