"In practical terms, the question arises as to where the line is between the active position of the party and the abuse of procedural rights" VIKTOR BARSUK, SENIOR PARTNER AT EQUITY, ASSESSED ACHIEVEMENTS AND ISSUES OF JUDICIAL REFORM
— Creation of the new Supreme Court (SC) became the main calling card of current judicial reform. What does the experience of its almost annual operation show: were the expectations of lawyers and business for restoring confidence in Ukrainian justice met?
— Certainly, creation of the new Supreme Court was the main event of entire judicial reform. After all, a full reboot of the highest judicial body in the country is the most visible and understandable change for society change in the field of justice. The actual consolidation by the Supreme Court of the Special Courts, the direct entry of scientists and lawyers into the panel of judges of the Supreme Court (despite their small number), the very process of selecting candidates for the Supreme Court resembling a reality show, the updated procedural codes adopted by the Supreme Court — all these things as a whole give a formal signal that reform has taken place.
According to many international experts, the competitive procedure for selecting judges to the Supreme Court, as implemented in Ukraine, is unprecedentedly open. Despite this, there are many people in society who are dissatisfied with the appointment of certain candidates. Moreover, information about judges that has appeared in the public domain makes them extremely vulnerable.
As to the practical results of operation of the new SC, they are very ambiguous and contradictory. This is largely due to the heavy workload faced by judges. As a result, we often face delays in the consideration of cases, abuse of court powers with regard to written proceedings.
With regard to positive results, one can note the openness of judges (due largely to new human resources — attorneys and scientists), the willingness to publicly comment and explain court practice.
Anyway, restoring confidence in the judiciary is a comprehensive task, whose solution requires considerable legal and organizational efforts, human and time resources and, most importantly, — readiness of society itself.
— How efficient is the new organizational structure of the Supreme Court?
— On the one hand, change in the structure of the cassation instance and establishment of the Grand Chamber as a part of the Supreme Court is undoubtedly a step forward towards unity of judicial practice. After all, the very Grand Chamber consists of representatives of all cassation courts, while its findings are mandatory when they resolve cases on similar issues. On the other hand, the mechanism for referring the case to the Grand Chamber is not transparent, which serves as grounds for abuse by both the parties and the court. For example, the parties use such a mechanism to delay consideration of the case, particularly with reference to a violation of the rules of the subject-matter and personal jurisdictions, which is an automatic basis for referring a case to the Grand Chamber.
— Within the procedural stage of judicial reform one of the big stakes was placed on establishing mechanisms to prevent abuse of procedural rights. In your opinion, where is the line between the abuse of procedural rights and the active position of an attorney in legal proceedings?
— The line you are talking about is very subjective and depends on the specific circumstances of the case, the judge’s perception, and the extent of persuasiveness of arguments of the party exercising one or another right.
The mechanism for preventing procedural abuse has changed significantly. Let me give as an example just the amount of the fine for abuse of procedural rights, which today, in commercial proceedings, ranges from one to ten subsistence minimums for primary abuse and from five to fifty subsistence minimums for repeat abuse.
It should be noted that the monopoly of attorneys over legal representation also affected the discipline of the representatives in proceedings because, in addition to a fine, an attorney may also be brought to disciplinary responsibility right up losing his or her license to practice law.
In practical terms, the question arises as for where the line is between the active position of the party (its representative) and the abuse of procedural rights. Due to substantial size of the fine and lack of a clear definition of the "abuse" concept, the mechanism provided for by the legislator is often used by the court as a way to put pressure on the parties or their representatives. And sometimes you have to deal with the "abuse" of discretion by the court.
— From an attorney’s viewpoint, which new procedural mechanisms proved to be efficient in practice, and which, on the contrary, turned out to be unable to work?
— The new codes provide for a number of new procedural mechanisms, most of which significantly simplify proceedings and contribute to the protection of rights and interests of the parties. For example, the institute of counter injunction. During the effect of the previous procedural codes, we saw that the institute of injunctive relief has been used by unscrupulous parties as a way to put pressure on the opposing party by blocking its commercial or other activities. The mechanism of counter injunction did not exclude the possibility of abuse of procedural rights by unreasonable injunctive relief, though it significantly reduced the number of such injunctive reliefs. Indeed, in this case, the unscrupulous party, realizing the risk of a counter injunction, will think well before asking the court to apply an injunctive relief.
There is an ambiguous takeaway from another innovation — eyewitness testimony in a commercial process. In practice, we have repeatedly encountered motions from the opposing party to summon witnesses to a court hearing. Practically all such motions were rejected by courts. The reason for rejecting was caused not so much by the imperfection of this provision, as by misinterpretation by the opponents of Article 89 of the EPC of Ukraine, which, as a basis for calling a witness, provides for the mandatory presence of his/her statement, the content of which contradicts the evidence in the case. However, sometimes the parties forget about this fact and ask that a witness be summoned in the absence of such a statement.
— "Availability. Efficiency. Quality". Does this new formula for the efficiency of legal proceedings actually work in practice?
— Availability. We cannot provide a judgement on the availability of justice, when in some district courts all the chairs of judges are vacant, and the parties to a dispute are in limbo and can actively affect nothing. In addition, a number of innovations aimed at reducing the workload of judges have had the opposite effect and, to some extent, restrict the access of citizens to the judicial process.
Efficiency. This component, like the previous one, depends directly on the financial and technical foundation of a court, completeness of the judiciary and, of course, the workload of judges. As for the regulatory prerequisites for efficiency, they exist, but it is still worth noting that time is the best verifier of the truth of certain actions.
Quality. There are many assessment categories in the new procedural codes. The qualitatively written reasons for judgment come to the fore. In this respect, it is necessary to highlight the positive trends in the rulings of the Supreme Court, the new structure of the court ruling in terms of its intuitiveness and optimality in application. But the Supreme Court is only the tip of the iceberg of the judicial system and, in this respect, there are still high hopes that the lower courts will take up the torch from the Supreme Court.