“Reducing the level of corruption in the judicial system will be one of the main signals regarding the safety of investing in Ukraine,” – as the partners of Dynasty Law Firm Denys Myrgorodskiy and Evhenyy Smiyukha are convinced.
Denys MYRGORODSKIY and Evhenyy SMIUKHA refer to the main advantages of the new procedural codes – high-quality protection against procedural abuses and sabotage, as well as openness of the trial process
Reforming the judicial system is the top topic in a professional legal community, which is also arouses interest in business representatives and foreign investors. Evaluation of the advantages and opportunities of the new procedural legislation, analysis of the situation in the enforcement of court decisions and the consequences of the introduction of a lawyer’s monopoly on judicial representation – the issues which the managing partner of Dynasty Law Firm Denys Myrgorodskiy and partner Evhenyy Smiyukha shared with the readers of the “Legal Practice”.
– For many years the Ukrainian judicial system has been in a state of permanent reform. What distinguishes the last (for the moment) judicial reform?
Denys Myrgorodskiy (D.M.): The main differences are a significant tightening of the requirements to judges, the introduction of a procedure for qualification evaluation of judges, declaring their property in conjunction with a radical increase in the level of payment for their work.
At the first stage of the reform, the mass retirement of older judges were the consequences of these innovations. They were the judges who were not used to the very idea of monitoring and evaluating the quality of their work (after all, during the first 27 years of Ukrainian justice there was nothing like this), and the formation of a record amount judicial vacancies in the judicial system. Several district courts were unable to administer justice because of the lack of a sufficient number of judges with authority.
It stands to reason, this sadly affected the availability of justice and the timing of cases, especially in the courts of general jurisdiction. I had to face criminal cases, which are examined in the court of first instance for more than six years (because of the difficulties in forming a panel of judges), and disputes over divorce that judges could not consider for almost two years. When judges are loaded beyond human capacity, no disciplinary complaint can contribute to speeding up the consideration of the dispute. However, after the composition of the Supreme Court (Supreme Court) was formed and the Supreme Qualifications Commission of the Judges (SQCJ) of Ukraine came ever closer to the extension of the powers of the judges indefinitely and appointment for the first time, the situation began to improve, although not fast enough.
However, one had not enough time to assess the effectiveness of the reform as a whole. The judicial system does not change in a single day, and it takes time for change to be manifested. We can confidently talk about the results in five years.
One of the most positive changes was the change in the amount of remuneration of judges (who passed the qualification assessment). According to the new version of the Law of Ukraine “On Judicial System and Status of Judges”, the basic remuneration of the judge starts from 52.860 UAH (30 times 1,762 UAH of the subsistence level as of January 1, 2018), with all the extra charges the amount reaches UAH 70-80 thousand, which is an adequate payment for a heavy emotional and intellectual work, and significantly reduces corruption risks in the justice system (you will agree that a significant part of the cases of corruption is connected with the miserable financial standing of people who resolve serious property disputes).
— How much is the state of the judicial system interesting for business, including foreign investors?
Evhenyy Smiyukha (ES): In my opinion, this is one of the key and extremely important issues for business, and especially for foreign investors. The Ukrainian judicial system has very often acted as a target of criticism and, to a great regret, is still subject to criticism from both Ukrainian citizens, business, and from foreign investors, international bodies and foreign countries. The accusations are mainly reduced to the lack of independence of the Ukrainian judicial system, the lack of proper professional training of judges, their ignoring the principle of inviolability and protection of property rights and, most importantly, the susceptibility of the judicial system to corrupt influences. As an attorney company that has been on the market for 18 years and specializes in providing legal assistance to business, we have repeatedly faced the fact that business people as a rule simply do not believe in the effectiveness and independence of our judicial system and are often forced to look for alternative ways of protection in first of all due to corruption. Therefore, a radical reduction in the level of corruption in the judicial system will be one of the main signals for foreign investors about the safety of investments in Ukraine.
— How do practitioners evaluate the new procedural legislation in general?
D.M.: On the whole, it is positive attitude, although the timing of cases has increased due to the need to comply with the new requirements of the process. The main advantages of the new procedural codes are highly-qualified protection from procedural abuses and sabotage, a clearer distribution of the jurisdiction of disputes, and openness of the trial process.
A huge step forward in the matters of effectiveness of justice is the introduction of an institution of exemplary business and the obligation for the lower courts of the practice of the Supreme Court and the Grand Chamber.
We are pleased with the opportunity to use the latest technical means for conducting the trial. So, we are already actively using the opportunity to hold court sessions in the videoconference mode, and are waiting for the opportunity to receive and submit procedural documents through a single information and telecommunications system, as provided for in the new procedural codes.
— Has the situation improved with the execution of court decisions?
Е.S.: In my opinion, it has improved, and in the first place precisely due to the introduction of the institution of private performers. And even today there are not so many private performers in Ukraine and they are limited by the limit of the general debt collection and the opening of production with respect to state bodies, but still their appearance is a huge step forward in the proper implementation of court decisions. Regarding the practice of our law firm, since the appearance of the first private performers, we have repeatedly resorted to cooperation with them in the interests of our clients. And in almost all cases we were satisfied with such cooperation – its effectiveness and success. The reason is that private performers are more independent of the administrative pressure exerted on them, cooperating with them is absolutely transparent, and, most importantly, they are much more motivated to the result than their “state” colleagues.
— What has the legal market acquired by the introduction of a lawyer’s monopoly on judicial representation?
Е.S.: Considering the fact that before the end of 2018, the representation of interests in the courts of first instance is still possible not only by lawyers, it is still too early to talk about the full onset of a lawyer monopoly in the legal market, but just around the corner – on January 1, 2019. Since the adoption of amendments to the procedural legislation providing for the gradual introduction of a lawyer’s monopoly, many practicing lawyers who do not have a certificate of the right to engage in advocacy, have rushed to storm the qualification chambers of the Qualification and Disciplinary Bar Commission (QDBC) of all regions to pass the appropriate examination and obtain a certificate the right to be engaged in advocacy. This led to the fact that most of the QDBC are now overloaded with taking exams. For example, in the Dnepropetrovsk region, the turn out of applicants admitted to the examination was formed already a year ahead. Being a member of the qualification chamber of the region QDBC, I can say with confidence that the introduction of such a monopoly will positively affect and already affects the legal market.. Even the fact of the long preparation and passing of the examination influencing the right to practice as a lawyer, the subsequent internship and the need for continuous improvement of the lawyers’ professional skills show that the lawyer is in most cases more professional and better prepared than a lawyer without a certificate. Accordingly, the introduction of a lawyers monopoly has made some adjustments in the labor market, lawyers, leading to the fact that in most cases, applicants for employment are required for mandatory presence of their lawyer’s status. Indeed a practicing lawyer with no license to practice law, will not be able to represent interests in the courts, simply cease to be “practicing” and interesting for the employer, including for legal companies.
— What is left out of the public limelight of reformers?
D.M.: Morals. Those who have studied at European or American law schools know how they increase focus on the social role of justice. Justice is not business, lawyers go there not to earn money, but to protect the interests of the weak from the arbitrariness of the state and corporations, maintain public order and restore justice. This is the reason that the independence of the judges and the guarantees of their activities are so important: they can freely pass verdicts against the state, without fear of revenge taken for their actions.
With regard for our country, most judges have developed a habit of curry favor with the authorities rather than limiting their abuse. Therefore, the investigating judges thoughtlessly stamp the search orders, without going into the essence of the matter; therefore, it is impossible to collect damages for unlawful actions of a state body in Ukrainian courts; so cases on charges of high-ranking officials in corruption crimes are not assigned to hearings for months and years. And the reform did in no way affect this aspect of the Ukrainian justice.