Ukrainian law

Legal news in Ukraine: commencement of consideration of constitutional complaints, qualification assessment of judges, new provision on assistant judge, debt to lawyers of free legal aid, recognition of a moratorium on the sale of land violations of human

26.05.2018 / 11:00

Legal news in Ukraine: commencement of consideration of constitutional complaints, qualification assessment of judges, new provision on assistant judge, debt to lawyers of free legal aid, recognition of a moratorium on the sale of land violations of human

Constitutional Court has started to consider constitutional complaints

On May 21, the Constitutional Court of Ukraine considered the first constitutional complaint in the form of a written proceeding.

The complaint was considered at an open plenary session of the Second Senate of the Constitutional Court of Ukraine.

The constitutional complaint concerns the verification of the compliance of the second part of Article 221-1 of the Code of Ukraine about administrative offenses before making changes by the Law "On Amendments to the Commercial Procedural Code of Ukraine, the Civil Procedural Code of Ukraine, the Code of Administrative Legal Proceedings of Ukraine and other legislative acts of Ukraine" in accordance with the Constitution of Ukraine.

This provision stipulated that the court's ruling, adopted on the basis of the results of consideration of the case of disrespect for the court or the Constitutional Court of Ukraine, is final and not subject to appeal.

In accordance with the Law on the Constitutional Court, the term of constitutional proceedings must not exceed six months.

As of May 16, 2018 almost 200 constitutional complaints have been submitted to the Constitutional Court.

The Institute of Constitutional Complaint is new for Ukraine and provides for the right of appeal of any citizen to the Constitutional Court on the grounds of application in the final judicial decision in the case of the complainant of the Law, which is contrary to the Constitution of Ukraine, when all other national remedies have been exhausted.

New provision on assistant judge has been approved

The Council of Judges of Ukraine promulgated the text of the new Regulations on the Assistant Judge, approved on May 18, 2018.

The provision states that the positions of assistant judges belong to patronage service, which are not covered by the Law of Ukraine "On Civil Service", except for Article 92 of the Law of Ukraine "On Civil Service".

An assistant of a judge may be a citizen of Ukraine who has a higher legal education and fluent in the state language. Assistants of the Supreme Court judges should also have experience of professional activity in the field of law of not less than three years.

The judges independently carry out the selection of assistants. A judge's assistant is appointed and dismissed from office by the head of the court of the relevant court upon submission by a judge.

The assistant of a judge is appointed to the post for the term of office of the direct supervisor and not longer than for the period of the direct supervisor in the state of the court.

The appointment of a judge's assistant is based on a written submission by a judge without a competitive selection by the order of the head of the court of the relevant court.

For persons applying for the position of assistant judge, internships may be conducted with the aim of acquiring them practical experience, checking the professional level and business qualities of these persons.

The salary of the assistant judge is established in accordance with the Laws of Ukraine "On the judicial system and the status of judges", "On labor remuneration" and regulatory acts of the Cabinet of Ministers of Ukraine regulating the conditions of remuneration for patronage services, including in the justice system.

At the same time, the head of the court apparatus has the right, on the submission of the direct supervisor, within the limits of the approved wage fund of the relevant court to the assistant judge:

to establish: an allowance for the intensity of labor; an allowance for performing particularly important work - up to 100 percent of the salary.

to carry out: bonuses according to their personal contribution to the general results of work within the fund of bonus of the relevant court.

to provide: material assistance for solving social and household issues at a rate not exceeding the average monthly salary of a judge's assistant;

to pay: an allowance in percentage of the official salary for seniority in state bodies in the following sizes: over 3 years - 10, over 5 years - 15, over 10 years - 20, over 15 years - 25, over 20 years - 30, over 25 years - 40 percent of the salary; material assistance for the improvement during the granting of annual leave in the amount not exceeding the average monthly salary of the assistant judge.

81 judges passed qualification assessment

High Qualification Commission of Judges of Ukraine this week conducted interviews and identified 128 evaluation results of the qualification of judges of local and appellate courts against the position.

As a result of the qualification assessment 81 judges passed.

These are judges of the Vinnytsya, Rivne, Odesa and Lviv appellate administrative courts, Dnipropetrovsk, Poltava, Vinnitsa, Zaporizhzhia and Chernivtsi district administrative courts, as well as the courts of appeal in the Zakarpattia and Lviv regions and commercial courts of Donetsk, Lugansk, Rivne, Kharkiv and Odesa regions.

Also judges of district courts of Kharkiv, Khmelnytsky, Ternopil, Transcarpathian, Lviv, Sumy, Dnipropetrovsk and Mykolaiv regions passed qualification assessment.

Judge of the Mukachevo City Court of the Zakarpattia region Ruslan Ivanitsky, judge of the Cherkasy District Administrative Court Tamara Novikova and judge Magdalinivsky District Court of Dnipropetrovsk region Andriy Zhivogliavov did not pass the qualification.

According to the results of the qualification assessment, the judge of the Odessa Appellate Administrative Court, Vladimir Romanishin, was found to be ineligible for his position.

Qualification judges will continue to work, and those who have not confirmed their compliance with the positions they occupy will be released.

Ukraine owed UAH 10 million lawyers who provide free legal aid

The budget of the system of free legal aid has developed a crisis situation.

 In all regions of the country before the lawyers there was an arrears on the services rendered by them on the basis of instructions from the centers of free legal aid.

The arrears of lawyers who render services on behalf of centers of free legal aid reached 10 million UAH.

Head of Ukrainian National Bar Association Lydia Izovitova stressed the need to change the model of free legal aid, namely the transfer advice lawyers provide regional administrative functions refinement criteria that person is entitled to legal aid, free choice of defense counsel and the inability to interfere in the lawyer.

In addition, Ukrainian National Bar Association offer implementation mechanism run monopoly through amendments to the Law of Ukraine "On public procurement", which take into account the peculiarities of procurement services for legal assistance or adopting a separate law of Ukraine "On public procurement of legal services."

From January 1, 2018 wage per hour of a lawyer for legal aid is 5 per cent of the subsistence wage for able-bodied persons.

ECHR has recognized a moratorium on the sale of land violations of human rights

Ukraine’s absolute ban on buying and selling of farm land led to rights violation, Government should pass more balanced law. Such decision was made by European Court of Human Rights in the case of Zelenchuk and Tsytsyura v. Ukraine (application nos. 846/16 and 1075/16).

European Court of Human Rights held, unanimously, that there had been: a violation of Article 1 of Protocol No. 1 (protection of property) to the European Convention on Human Rights.

The case concerned a complaint by two people about a State ban on the sale of agricultural land, which they said had violated their property rights as the owners of such plots. The Court observed that after the fall of the Soviet Union Ukraine had mostly distributed farm land to people who had previously worked on collective farms but had introduced, supposedly on a temporary basis, a ban on the sale of such land, known as the “land moratorium”.

The Government had argued that the measure prevented the concentration of land in a few hands, stopped rural people becoming poorer and made sure land stayed in cultivation.

However, the Court found that the State had not struck a fair balance between the general interests of the community and the applicants’ property rights.

The Court noted that no other Council of Europe state had such a ban and referred to the inconsistency of Ukraine’s approach to ending the moratorium. It was also not clear why a less restrictive measure would not be effective in achieving the same goals.

The Court stressed that the case concerned the general legislative situation and was not restricted to the applicants alone. It held that Ukraine should take appropriate legislative or other measures to ensure a fair balance between the interests of farm land owners and the general community. The Court highlighted that it did not require the immediate introduction of an unrestricted market in agricultural land and that the State remained free to choose what measures to take.

The Court held that the finding of a violation was sufficient just satisfaction for any non-pecuniary damage and did not award any monetary compensation. In doing so, it bore in mind its finding that Ukraine had to take general measures to comply with the judgment and that very many people were affected by the situation. However, if the State showed unreasonable delay in passing the necessary measures, monetary awards might become warranted. It awarded 3,000 euros for each applicant for costs and expenses but stressed that it would normally make no such awards in future cases of this type.

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