"Ukraine took the step of improving quality and enhancing the credibility of the judicial system through the introduction of legal examinations" EVGEN KUBKO, PRESIDENT OF SALKOM LAW FIRM SAYS
— The Law of Ukraine entitled On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Proceedings of Ukraine and other legislative acts introduces the provision on involving a legal expert in judicial proceedings. How will this institution differ from the existing institution of forensic experts?
— A legal expert has a somewhat specific status. The opinion of such an expert is not evidence and the court can use it solely as a source of information for various legal issues.
However, the opinion of a legal expert is important for correct and lawful case consideration. The judge cannot ignore it since he or she is obliged to assess such an opinion. Otherwise, the validity of the court’s decision may be questioned.
The specific nature of legal examination is that the issue here is the interpretation of legal provisions and legal issues, which relates to the competence of the courts. Perhaps, this comes in response to the fact that the expert opinion will not serve as evidence and have binding validity on a court. The difference from other examinations is as follows: a legal expert, figuratively speaking, invades the area of a judge's expertise, therefore, the attitude to this institution differs.
Practicing lawyers, voicing their critical opinions about this innovation, motivate them through the fact that interpretation of legal provisions is the exclusive prerogative of the court.
But such an approach does not impose upon the prerogative of the court, since the parties interpret legal provisions, among other things, in their procedural documents. Nevertheless, it is the right of the parties to interpret a legal provision and, accordingly, to argue on the basis of this interpretation. Therefore, there is nothing wrong with the fact that the parties will receive an additional option to reinforce their position with the interpretation of a legal provision carried out by an expert. Nobody disputes that the final word belongs to the court, and it does not have to rely solely on the expert’s opinion and much less accept the position stated by the expert. The judge may not take into account the expert’s opinion or can assess it with a critical mind, or disagree with such opinion, i.e., the prerogative to interpret the legal provision and apply the law remained with the court.
In addition, the legal expert opinion should relate only to certain issues of interpretation of a legal provision.
— What will change in your work after the new legislation has been adopted?
— Both my colleagues and I (six PhDs and one Doctor of Juridical Sciences have been working with Salkom Law Firm since 1993, there is a scientific and analytical center) have experience of work as experts both at national level and in international courts (including courts of arbitration).
In connection with the adoption of new legislation, we expect an increase in the scope of work. It should be borne in mind that legal examination is already known to our legal system and has a certain legal basis. For example, members of the Scientific Advisory Board at the Supreme Court of Ukraine prepare, as my own experience shows, at the demand of the judge, legal opinions, which is provided for in the Law of Ukraine On the Judiciary and Status of Judges.
— What features of examination in the courts and in international arbitration can you highlight?
— When comparing examination in state courts and international arbitration, it should be said that arbitration has fewer tools to control such experts. That is, the level of expert's independence may be insufficient for fair justice. In addition, experience and skill level are also important. As a rule, an expert in the international arbitration process possesses more extensive knowledge of foreign law, as well as the regulations, rules and traditions that are specific to international arbitration.
Certainly, there is a similarity too. For example, these are the requirements for completeness of examination, equality of parties in using the results of examination, independence and impartiality of experts, etc. The standards of a fair process, including in the area of examination, are used equally both in the courts and in arbitration.
— What provisions of the new law introducing legal examination raise fears in terms of their practical application?
— First of all, the scope of application of legal examination when we talk about the analogy of law, and second, the content of application of foreign law (perhaps this area needs to be expanded).
As for an expert’s status, in accordance with the law, this should be scientists who are recognized in the field of law, which raises the question: how are they recognized and by whom? In addition, there are various branches of law. For example, can an expert in the area of labor law give an expert opinion in the area of taxation?
And, of course, the status of expert opinions themselves, which are not binding on a court and are not considered to be evidence. On the one hand, we should preserve the prerogative of the court to interpret the provisions and their application, since the expert cannot take the place of judicial authority. On the other hand, to what extent should the court rely on this opinion, should it be taken into account, how should it be reasoned, etc.
It should also be noted that an expert’s opinion can be an additional mechanism for creating artificial grounds. For example, to appeal against a court decision or abuse of procedural rights.
Like any phenomenon, the institution of examination is a two-way street. On the one hand, the involvement of a legal expert is a step forward but, on the other hand, only practice will show the efficiency of such an institution.
— The involvement of legal expert is a common practice in foreign courts. What should Ukraine borrow in this area?
— Indeed, the attitude towards an expert’s opinions in foreign courts is somewhat different since the expert's responsibility there is higher, not so much legal and professional, as moral and ethical: it is necessary to have your own position, to answer questions, to be ready to assume responsibility for your opinion.
Talking about foreign experience, it should be noted that it is not enough to borrow just one institution: it is necessary to view both the judicial system and the legal system as a whole from a broader perspective. Court rulings abroad seem even more substantiated and profound, as is the examination. Some so-called insignificant cases are settled at the level of first instance without the involvement of higher levels. Therefore, the load on courts is lighter and the quality of both their work and of court decisions is better.
As for Ukraine, the new procedural codes provide for a mechanism to improve the quality of judicial activity. To what extent this mechanism will be efficient depends largely on the participants of the process.
Ukraine took the step of improving quality and enhancing the credibility of the judicial system through the introduction of legal examinations and, accordingly, the institution of forensic expertise has also changed.