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Legal news in Ukraine: entry into force of new laws, refereeing judges, the Supreme Court regarding the application of the Savchenko Act, a bill to overcome the debt problem of the state by court decisions, new criteria for carrying out planned inspection

16.06.2018 / 11:00
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Legal news in Ukraine: entry into force of new laws, refereeing judges, the Supreme Court regarding the application of the Savchenko Act, a bill to overcome the debt problem of the state by court decisions, new criteria for carrying out planned inspection

The Law on the Supreme Antiсorruption Court came into force

On June 14, the Law of Ukraine No. 2447-VIII "On the Supreme Antiсorruption Court" came into force.

Law defines the principles of the organization and activities of the Supreme Antiсorruption Court as the highest specialized court in the system of judicial system, special requirements to the judges of this court and guarantees of their activities, as well as the peculiarities of conducting a competition for the position of judge of the Supreme Anticorruption Court.

According to the Law, the Supreme Anticorruption Court should form within one year from the date of its entry into force, that is, by the summer of 2019: to announce and hold a competition for the positions of judges of the Appeals Chamber of the Supreme Antiсorruption Court and to the positions of other judges of the Supreme Anticorruption Court.

The competition for the positions of anticorruption judges will be conducted by the High Qualification Commission of Judges of Ukraine, but the examination of candidates for compliance with the criteria of integrity and professional ethics will not be audited by the Public Council of Integrity, but a specially created Public Council of International Experts.

According to the law, the Supreme Antiсorruption Court will administer justice as the court of the first and appellate instances in criminal proceedings concerning crimes attributed to its jurisdiction (jurisdiction), as well as by exercising judicial control over the observance of the rights, freedoms and interests of individuals in such criminal proceedings.

The court ruled that the court had criminal proceedings against the corruption crimes provided for in note 45 of the Criminal Code of Ukraine, Articles 206-2, 209, 211, 3661 of the Criminal Code of Ukraine, if at least one of the conditions provided for in paragraphs 1-3 of part n Article 216 of the Criminal Procedure Code of Ukraine. That is, his jurisdiction coincides with the testimony of the National Anti-Corruption Bureau of Ukraine.

Prior to the work of the anticorruption court, judicial review of criminal proceedings for crimes attributed to the Supreme Antiсorruption Court will be conducted by courts of the first and/or appellate courts, which will complete the consideration of open cases. At the same time, criminal proceedings can not be transferred to the Supreme Anticorruption Court.

The Supreme Anticorruption Court will only hand over petitions in criminal proceedings against crimes attributed to the Supreme Antiсorruption Court, received by investigating judges, and were not considered before the day the Supreme Anticorruption Court began to work.

At the same time, NABU stated that the norm of the Law of Ukraine "On the Supreme Anticorruption Court", which stipulates that before the establishment of the Supreme Anticorruption Court, appeals against decisions of the courts of first instance on NABU and CAAP will be considered by appellate courts of general jurisdiction, they must be removed.

A relevant bill on amendments to the Criminal procedural code, which provides for the transfer of all court cases, whose trial in the courts of the first and appellate instances has not been completed before the day the Supreme Anticorruption Court began to work in this court has been registered in Verkhovna Rada. Meanwhile, the President submitted to the High Council for Justice a draft law "On the Establishment of the Supreme Anticorruption Court". Parliament needs to adopt this "technical" law on the creation of the Supreme Anticorruption Court - a law stating the establishment of the court, as required by the Constitution of Ukraine.

New norms on the application of compulsory medical measures were put into effect

On June 10, the Law No. 2205-VIII was introduced in Ukraine, which amended the Law "On Psychiatric Aid", as well as the Criminal and Criminal Procedural Codes of Ukraine.

The issue of the extension, change or termination of the use of a compulsory measure of a medical nature shall be decided by the court in the event of such a change in the state of mental health of the person, which eliminates the need for the use of a previously appointed measure and necessitates the appointment of another coercive measure of a medical nature or the person has recovered. The continuation, change or termination of the use of compulsory measures of a medical nature is carried out by a court at the request of a representative of the institution providing psychiatric care (a psychiatrist) who provides psychiatric assistance to a person. The statement is accompanied by a conclusion of the commission of psychiatrists, which substantiates the necessity of continuation, change or termination of the use of such compulsory measures. The change or termination of the use of compulsory measures of a medical nature may also be carried out by a court on the application of a person subject to coercive measures of a medical nature or of his or her counsel or other legal representative, if such person in his state of health can not deliberately submit to the court an appropriate statement A statement is attached to the statement of the commission of psychiatrists of the institution in which the person is provided with psychiatric care, or, if available, the conclusion of the person chosen by an independent psychiatrist.

Persons subject to compulsory medical treatment are subject to review by the commission of psychiatrists at least once every six months to decide whether there are grounds for a court application to terminate, prolong or change the use of such measures. After the survey, the representative of the psychiatric care facility (psychiatrist), who provides mental health care to the person, sends a statement to the court at the location of the institution providing psychiatric care, accompanied by a conclusion of the commission of psychiatric doctors, justifying the necessity of continuing the change or termination the use of a compulsory measure of a medical nature, respectively. In the future, the continuation of the use of a compulsory measure of a medical nature is carried out each time for a period not exceeding 6 months.

A person subject to coercive measures of a medical nature has the right to apply to the court with a request to change or terminate the use of compulsory measures of a medical nature no more than once for 6 months and regardless of whether this issue was considered by the court during the specified period. A person subject to compulsory medical treatment may apply to an independent psychiatrist of his choice in order to obtain an opinion on the state of his mental health and the necessity of imposing compulsory medical measures upon him. In the opinion of an independent psychiatrist, the grounds for changing or stopping the use of compulsory medical measures should be indicated. In the absence of such grounds, the conclusion justifies the need to continue the use of compulsory medical measures. An administration of a psychiatric institution in which a person is subject to coercive measures of a medical nature, as well as a criminal-executive institution, when coercive measures of a medical nature are applied to a person at the place of detention, are required to provide an unimpeded opportunity to examine the person selected she is an independent psychiatrist on the territory of the institution providing psychiatric care or a criminal-executive institution, respectively.

The reason for placing a person suffering from a mental disorder in the institution of social protection of persons suffering from mental disorders is the personal written application of the person and the conclusion of the medical commission with the participation of a psychiatrist; for a person under 18 years of age - a written application from parents or other legal representative and a decision of the guardianship and guardianship body, adopted on the basis of the conclusion of the medical commission with the participation of a psychiatrist. The conclusion should contain information about the presence of a person with a mental disorder and her need for permanent third-party care.

The continuation, change or termination of the use of compulsory measures of a medical nature is carried out by a court at the request of a representative of the institution providing psychiatric care (a psychiatrist) who provides psychiatric assistance to a person. The statement is accompanied by a conclusion of the commission of psychiatrists, which substantiates the necessity of continuation, change or termination of the use of such compulsory measures.

The change or termination of the use of compulsory measures of a medical nature may also be carried out by a court on the application of a person who is subject to coercive measures of a medical nature, her defense counsel or legal representative in the event that such person can not be aware of their actions (inaction) or manage.

Qualification for 868 judges has been completed

Currently, 2969 judges in two groups from 999 and 1970 judges pass the qualification assessment: as of June 7, 868 judges have been completed.

Of these, 709 judges have been found to be in a position to hold office and continue to hold judicial positions.

Other 159 judges are exempted or already released, in particular:

68 judges were released on their own during the assessment procedure;

91 judges did not confirm compliance with their position, namely: 65 judges did not pass exams, 26 judges did not interview with members of the Commission.

In the first group, the qualification evaluation procedure has not been completed for 211 judges, including a break for 112 judges, in particular due to the findings of the Public Council of Integrity that have not been properly arranged. Interviews with these judges are currently ongoing.

It should be noted that the qualification assessment for compliance with the position occupied was introduced in the framework of judicial reform for all judges of Ukraine. For the first thousand judges, the evaluation was announced on October 20, 2017, and lasted for 7 months. Among the judges who passed the evaluation, 181 judges - "five years", in which the powers expired, have already been recommended to the High Council of Justice for appointment. This will allow the work of courts to be restored or dumped.

Currently, judges from the first group are in the final stage of qualification assessment - interviewing and analyzing the dossier. The second group of judges took exams and is currently testing moral and psychological qualities. The third group, whose decision was adopted on June 7, 2018, is 2,188 judges. They will begin examinations on July 2, 2018.

The Supreme Court issued a legal opinion on the timing of the "Savchenko's bill"

The Supreme Court issued a legal opinion on the so-called "Savchenko's bill" in time.

By a joint chamber of the Supreme Court in a resolution dated June 6, 2018, on the initiative of the General Prosecutor's Office of Ukraine, a legal opinion was issued on the application of the norm of Part 5 of Art. 72 of the Criminal Code of Ukraine in the wording of the Law of Ukraine dated November 26, 2015 № 838-VIIІ "On Amending the Criminal Code of Ukraine with regard to improving the procedure for enrollment by a court of a term of imprisonment for a term of punishment".

The conclusion of the Supreme Court states that the rules for the imprisonment of pre-trial detention or other forms of punishment provided for in Part 1 of Art. 72 of the Criminal Code of Ukraine, can not be considered as defining "punishment" or "other criminal consequences of the act" in the sense of Part 2 of Art. 4 of the Criminal Code of Ukraine.

Therefore Part 5 of Art. 72 of the Criminal Code of Ukraine as amended by the Law No. 838-VIIІ of November 26, 2015 does not apply after the entry into force on June 21, 2017 of a new edition of this norm. A preliminary imprisonment is credited with a penalty of one day of imprisonment for two days of imprisonment only for the duration of this Law.

Conclusions on the application of the rules of law, set forth in the decisions of the Supreme Court, are mandatory for all subjects of power, which apply in their activities a legal act containing the relevant rule of law.

The Ministry of Justice has represented a new mechanism for executing court decisions

The Ministry of Justice presented a bill "On Amendments to Certain Legislative Acts of Ukraine to Overcome the Problem of State Debt by Court Decisions".

The document describes the mechanism for implementation of the decision in the case "Burmich and Others v. Ukraine".

The bill provides for redistribution of expenditures from the budget program of the Ministry of Justice to the budget program of the State Treasury Service for the purpose of executing court decisions, which are guaranteed by the state.

Another innovation that will protect the rights of collectors for social payments will be to establish the order of execution of court decisions and increase compensation for a long failure to comply with the decision of the national court from 3% to 10% of the awarded amount. However, the supplement may not exceed one minimum wage established on the day of payment.

According to the Deputy Minister of Justice of Ivan Lyshchina, the general problem of non-enforcement of decisions of national courts in Ukraine arose, mainly due to the establishment of moratoria that make it impossible to enforce court decisions on certain categories of economic entities, lack of funds from state enterprises, the adoption of populist "Social" laws, not backed up by the possibilities of the state budget.

The new law will introduce a norm, which broadens the powers of the state executor to determine the amount of debt by court decisions binding nature in the monetary equivalent, which will allow payment of such decisions.

The next steps will be the lifting of moratoria and other measures that impede enforcement proceedings against state-owned enterprises, the introduction of a monitoring system of bills and current legislation on the establishment of additional benefits, as well as the possibilities of the state budget to prevent the adoption of laws that envisage expenditures that exceed budget opportunities, improve procedures for violating civil proceedings against state-owned enterprises for reimbursement of funds paid from the state budget, novlennya system of continuous monitoring solutions for the recovery of funds from the state to prevent new waves of massive lawsuits against the state.

Since June 12, scheduled inspections are conducted on the basis of single criteria

On June 12, the Resolution of the Cabinet of Ministers of Ukraine dated May 10, 2018 No. 342 came into force, which approved new methods for developing criteria for assessing the degree of risk from conducting business activities and determining the frequency of planned state supervision (control) measures, and unified forms of acts, which consist of the results of planned (unscheduled) state supervision (control) measures.

The criteria will be reviewed at least once every three years.

During the development of the criteria will be determined:

1) the sphere of state supervision (control), in which the criteria, the relevant objectives of state supervision (control), and the assessment of the risks of negative consequences from the conduct of economic activity are applied;

2) the name of the state supervision body (control) authorized to carry out measures of state supervision (control) in the relevant sphere;

3) an exhaustive list of criteria;

4) clear, understandable and measurable indicators of the criteria for determining the degree of risk;

5) the number of points that is calculated for each criterion indicator;

6) scale of scores indicating the range of points that correspond to high (from 41 to 100 points), the average (from 21 to 40 points) and insignificant (from 0 to 20 points) the degree of risk;

7) provisions regarding the frequency of planned state supervision measures (control).

The assignment of an entity to one of the three risk levels (high, medium, insignificant) will be based on the sum of points calculated according to all the criteria in the relevant field according to the scale of scores.

Each year, no later than October 15 of this year, preceding the scheduled, the list will be updated by:

- carry out a recalculation of the amounts of points accrued to economic entities subject to state supervision (control) in the relevant sphere, based on the results of state supervision (control) over the previous year;

- inclusion of economic entities that are subject to state supervision (control) in the next planning period;

- the location of all entities included in it in order to reduce the amount of points accrued to each entity.

Information on the list of business entities subject to state supervision (control) in the relevant area of economic activity, indicating the degree of risk from conducting their economic activity, will be made public on the official website of the relevant state supervision body (control).

The method of developing unified forms of acts, which will be drawn up on the basis of planned (unscheduled) state supervision measures, will also establish a single approach to the development of forms of acts that will be drawn up on the basis of the results of inspections.

The unified form of the inspection act will be developed by the state supervisory authority (control) and will be made public on its official website within five working days from the date of its approval. It will consist of:

1) title page;

2) a list of issues regarding the conduct of the state supervision (control);

3) a list of normative legal acts, according to which a list of questions regarding the conduct of the state supervision (control) is prepared;

4) a description of the revealed violations of the requirements of the legislation;

5) a list of issues for business entities to control the actions (inactivity) of officials of the state supervision body (control);

6) an explanation, remark or objection regarding the measure of state supervision (control) and an act drawn up on its results;

7) assessments of the economic entity regarding the professional level of officials of the state supervision (control) body that carried out the measure of state supervision (control);

8) places for signatures of officials of the state supervision (control) body, the head of a business entity or an authorized person thereof, as well as third persons who participated in the state supervision (control).

 

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