March 28, 2018

Reform of the judicial system. Seven changes that will speed up the work of courts

Reform of the judiciary launched in early 2018 has reduced the number of courts and judges, improved their financial situation, introduced remote legal proceedings and expanded the responsibilities of lawyers and applicants.

From what I see, the judicial reform is only discussed among specialists. It barely registers with the general public, which is a shame. The reform of courts is an important hygienic procedure for society. Its success could improve the health of all processes inside the country and our image in the eyes of international partners, because the countries with "untreated" judicial systems usually "smell bad".

The reform contains a lot of important changes, but my personal top 7 looks like this:

  1. Optimization of legal proceedings.
  2. Qualification assessment of judges
  3. Electronic court filing.
  4. Increased court fees.
  5. Lawyer’s monopoly.
  6. New trial rules.
  7. Model, or typical cases.

Some changes are definitely good, some are disputable, and others look good but might not work in our system. Let’s take a closer look.

The number of courts and judges will decrease

We used to have four separate cassation instances. Now there is a single Supreme Court with separate chambers. It is under the close scrutiny of both the professional community and civil society.

The Supreme Court’s composition has been substantially reformatted. Firstly, only 60% of the Court’s judges previously held judicial positions. This means that 40% of people are new to the judicial system, and this is optimistic. Secondly, there are fewer judges now. While there had been 70 people in the Supreme Economic Court alone and even more in the higher specialized courts and the Supreme Administrative Court, now each chamber consists of 30 people. 80 more are expected to be appointed in the near future, which puts 50 judges in each chamber, not nearly as many as it used to be.

The question is, will they be able to cope with the workload? The number of court orders subject to appeal has doubled. With trials lasting for two or three years, the European Court of Human Rights is going to be swarmed with complaints.

Courts are being reorganized throughout the country. District courts are being merged. The changes haven’t passed appellate courts as well - the old ones are being shut down and new bigger ones emerge. Now there will be only one district economic court of appeal for Kharkiv, Poltava, Donetsk and Lugansk oblasts. And I am sure it is up to the task. In terms of the speed of consideration, economic courts worked well even before the reform. After all, they have strict deadlines – no more than two months per case. District courts had no such deadlines, often making a case last for two or three years.

There is also an unpleasant nuance: it used to be convenient to get to a court, but now it can be difficult. Theoretically, electronic court filing should address this, see below.

All judges will undergo qualification evaluation

Qualification assessment of all Ukrainian judges is underway: from judges working in higher specialized courts to those from trial courts. The process has been going on since 2015 and may lead to fundamentally new "game rules". But there are some dubious decisions as here as well.

All judges have to undergo this assessment. But how effective is this for testing their actual skills? I believe, the first indicator of unprofessionalism for a judge is the number of rulings cancelled by appellate and cassation courts.

We love movies where the judge is wiser than everyone, including the entire judicial system. In real life, the judge, half of whose decisions are cancelled as erroneous, has likely chosen the wrong line of work.

Even if it's not half, but 20%, this should be the first sign that this judge should be assessed, not simply everyone. But right now it is everyone, which only serves to discourage judges and slow down their work.

Another item that looks good on paper but questionable in practice is the verification of assets declarations. We all understand that some of this data may be sufficient grounds for dismissal. However, this requires a working system of anti-corruption agencies. Moreover, the salary should increase: it should be higher than 8000 UAH for a district court judge. Of course, stating January 1, judges of local courts should be paid at least 38,420 UAH (20 subsistence minimums for able-bodied people), judges of appellate and higher specialized courts – at least 57,630 UAH (30 subsistence minimums). This is a start. The independence of the court begins with the financial independence of the judge.

Electronic court filing is introduced

An important step forward: court sessions can be held in videoconference. For instance, as a lawyer, I will not have to go to Kherson, Uzhgorod or Lutsk (unless personal attendance is an important factor for the success of the case, of course). I can represent my client from my electronic account by sending documents or having video calls during sessions.

The technical base is currently being developed for filing documents and lawsuits in electronic form. A separate electronic account will be created for each case, allowing the court and parties to the case to access any document at any time. Of course, in order to use this technology, you need to register your e-mail and digital signature in the system.

It will minimize the likelihood of protracted trials when parties appeal against all court orders.

People used to drag out proceedings like this: while the trial court was considering the case, one of the parties would file a groundless counterclaim, which the court would refuse, allowing that party to launch an appeal. The appellate court would request the case file from the trial court, which would suspend proceedings in the trial court. This way, it had been possible to drag things out for years.

With e-filing, additional lawsuits can be simultaneously considered by trial, appellate and cassation courts. Delaying proceedings by shuffling documents from one court to another will work no longer.

Now electronic review will not only be possible, it will be mandatory. But if the court fails to provide e-filing within five days, the documents will be kept in paper form. In order for these provisions to work, the State Judicial Administration should publish a manual on the Verkhovna Rada website and address the issues on the creation of electronic accounts, registration of e-mails, and recording video calls.

Sound great. But I’ve got to admit, I have doubts that this is going to work. It does work abroad, and even in Russia. But we are unprepared technology-wise, especially our district courts. It's not even about gadgets, it’s about the need to change the way judges think. Many of them don’t take video calls seriously. Even though, I'm sure, they have no problem with having video calls with relatives on Skype.

The costs of litigation will increase

At the first instance level, nothing is really going to change. As before, for filing a material claim, a legal entity will pay a court fee of 1.5% of the claim amount, but no less than 1,762 UAH and no more than 616,700 UAH (the upper threshold is new); an individual will pay 1% of the claim amount, but no less than 704,8 UAH and no more than 8,810 UAH.

The price of appeal and cassation will rise. An appeal used to cost 110% of the trial court fee, now it’s 150%; an application to a cassation court had been 120%, now it’s 200%. Now the applicant needs to think twice whether to go to court at all. On the one hand, this is good, since there will be no torrent of appeals, on the other – it is bad, because it obstructs access to justice. There is a positive aspect though: if a dispute is settled peacefully, the applicant can get half of the court fee back.

Reimbursement of court fees is no longer necessarily covered by the loser. In case of delays or obstruction of justice, the court has the right to divide the fee and have the winning party cover a part of the sum. This will encourage the parties to strive for an amicable agreement.

Only a lawyer can represent people in court

Previously, practically anyone could represent a person in court, but now only a specialist with the status of a lawyer can do this. Also, starting in 2020, this rule will extend to government agencies as well.

The concept of "lawyer’s monopoly" scares a lot of people. They say it restricts the rights of ordinary folks who can’t afford legal assistance, which violates Article 59 of the Ukrainian Constitution ("Everyone has a right to professional legal assistance. In cases provided by the law, this assistance is provided free of charge. Everyone is free to choose the defender of one’s rights"). However, now, as before, a person has the right to represent himself.

In my opinion, it is a progressive change that brings us closer to the world standards of the judicial system. It used to be like this: if you have a diploma, you can represent people in court, and no matter how bad you are, no one can take that diploma away from you. Now a lawyer’s status imposes certain obligations: there are disciplinary regulations, ethical rules and responsibility before the client.

The client knows these standards and can demand their fulfillment from one’s representative, and also hold him or her accountable for neglecting duties or acting to the detriment of the client. The consequences are serious: a disciplinary and qualification commission of the bar can take away the status of lawyer. Therefore, this innovation is primarily beneficial to the client. It will contribute to the creation of a transparent market of legal services.

The introduction of lawyer's monopoly will prompt lawyers to apply for lawyer's licenses en masse. And this is normal. For instance, in Germany there are 150 thousand lawyers, while we only have about 30 thousand.

There will still be cases that do not require a lawyer's license - labor disputes and so-called minor disputes where the amount of the claim does not exceed 10 subsistence minimums. So there will be a place in the new system for all competent lawyers.

There will be fines for procedural sabotage

The concept of the "abuse of the law" is introduced. Previously, in order to delay the case, a party could file groundless lawsuits and appeals (even if certain court orders were not subject to this), and the trial court was required to transfer the case to the appellate court. This would take a month. Then the cassation instance - and another month – would follow. These actions could be repeated multiple times.

Now, if the court declares such applications an abuse of law, it can choose not to consider them. This kind of procedural sabotage will entail liability and fines. This change could reduce the review time on some cases by two or three years.

New concept of "model cases"

Another important innovation is model, or typical cases. Here I have only the highest expectations.

For example, take the Deposit Guarantee Fund. Not so long ago, it had been flooded with applications from citizens demanding their deposited money back. The Fund denied them, and people would go to court. With tens of thousands of such cases, each one was considered by courts separately. Each one had separate appeals. It was highly impractical.

Now, if there are several similar cases, one of them will be considered by the Supreme Court. When it makes a decision, the Grand Chamber will declare it a model case, and on its basis, subsequent decisions in all similar cases will be instantly made.

If the decisions are well detailed by the Supreme Court and become binding, this will improve the entire judicial system. But I would like to note: it is important that later cases which would require proper consideration would not be shoved into the model category.

To add some other important new game rules:

  1. Supreme Council of Justice has been established – a new body, successor of the High Council of Justice;
  2. Civil Procedure Code, Administrative Procedure Code, Economic Procedure Code and Criminal Code have been updated;
  3. fundamentally new proceedings have been established: writ proceedings and simplified proceedings;
  4. the time period for appeal and cassation has been increased.

There is reason to hope that all this together will help speed up and simplify the work of the judiciary.