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Ukrainian law

Legal news in Ukraine: judges’ qualification assessment, legal positions of Supreme Court, constitutionality of medical reform, programs for masters in law and international law, ECHR’s decision

17.02.2018 / 11:00

Legal news in Ukraine: judges’ qualification assessment, legal positions of Supreme Court, constitutionality of medical reform, programs for masters in law and international law, ECHR’s decision

Judges’ qualification  assessment  was started

From February 14 to March 15, 2018, 990 judges from all regions of Ukraine will hold a two-level examination as a part of judges' qualification. Among them there are 442 judges of the first instance, and 548 judges of the second instance. The first 57 out of 990 judges passed the exam on February, 14.

The qualification assessment of judges as a part of judicial reform is compulsory for all 5,700 local and appellate judges. During the initial qualification assessment in 2016 and the Supreme Court's contest in 2017 500 judges have already passed the qualifying examination, and therefore, another 5,200 judges must pass it.

The procedure is intended to determine the judge's ability to administer justice in a relevant court. Anyone who does not pass it will be dismissed.

Of the 990 judges who are evaluated, 32% are judges of local general courts, 6% are judges of district administrative courts and commercial courts, 40% are judges of appellate courts, 12% are courts of appellate administrative courts and 4% of judges of appellate economic courts. An assessment is made by awarding a two-level exam for an examiner - anonymous testing and practical assignment, examining a judge's dossier, and interview.

During the anonymous testing, judges need to demonstrate the level of knowledge in the field of law, knowledge of material and procedural law of Ukraine, international legal acts, legal positions of the Supreme Court, the ECHR etc. The ability to clearly and comprehensively formulate and present a legal position in a court decision, to draw up logical, clear and substantiated judgments judges must demonstrate during a practical task.

Work and behavior of judges of local and appellate courts are assessed according to the criteria of competence (professional, personal, social), integrity and professional ethics.

Professional competence is established by means of an examination, which is compiled taking into account the principles of instantiality and specialization of the court. Thus, among 990 judges, 396 are examinations in civilian specialization, 319 are criminal, 179 are administrative, 96 are civil servants.

Indicators of personal and social competence of a judge are established by tests of personal moral and psychological qualities and general abilities. This type of testing was set up by the group of judges at the international OS-Ukraine company from October 30 to November 9, 2017.

The judge's compliance with the criterion of integrity is assessed by the indicators of compliance of the expenses, property and lifestyle of the judge and his family members with declared income, as well as the compliance of the judge's conduct with other requirements of the legislation in the field of prevention of corruption and the presence of facts of bringing the judge to account for the commission of offenses. These indicators are established on the basis of interview results and information in the dossier, which is entered on the basis of responses of the specially authorized bodies, as well as information from the Public Council of Integrity.

The total number of points in the assessment is 1000, which are distributed according to the criteria: professional competence - 300 points, personal competence - 100 points, social competence - 100 points; professional ethics - 250 points, integrity - 250 points.

The judge's refusal to assess or negative result is a cause for dismissal.

On February 22, 2018, the following group of judges will pass the qualification assessment, which includes 1790 judges.

The Supreme Court will inform the public аuthorities of its legal positions

The Supreme Court will inform public аuthorities on their legal positions, set forth in the decisions, by sending them letters with the relevant information.

The first such letter has already been posted on the Supreme Court website. This is a letter to the State Fiscal Service of Ukraine and the Social Insurance Fund of Ukraine on the legal conclusion of the Supreme Court (case of accrual of benefits to a person in connection with pregnancy and childbirth).

The letter, in particular, indicates that the Supreme Court has formulated a legal opinion on the application of paragraph 25 of the Procedure for calculating the average wage (income, money supply) for the calculation of payments for compulsory state social insurance.

In order to prevent a violation of human rights, the Supreme Court asks for the mandatory consideration of this legal opinion when applying the Order No. 1266, to bring its content to the attention of employees and to ensure the steady fulfillment of part five of Article 13 of the Law of Ukraine "On the Judiciary and Status of Judges". On the measures taken The Court of Cassation Administrative Court in the Supreme Court asks to inform the subjects of power by March 6, 2018.

According to the Chairman of the Cassation Administrative Court of the Supreme Court, Mikhail Smokovich, such measures should speed up the execution of court decisions and prevent the mistaken application of the legislative norms by the subjects of power in the future. "As a result, we are seeking a significant reduction, and subsequently a complete absence of litigation on issues that have a clear legal position of the Supreme Court," M. Smokovych explained.

In addition, the Court of Cassation Administrative Court in the Supreme Court will place on the official website of the Supreme Court rulings, which set out the legal conclusions required for use in the subsequent work of the subjects of power.

Medical reform will be rewieved on constitutionality

The Constitutional Court of Ukraine has received a petition to check that the law introducing the medical reform is in conformity with the Constitution.

The authors of the submission - people's deputies point out that the disputed Law "On State Financial Guarantees of Medical Care of the Population" introduced a mechanism that changes the direct budget financing of health care institutions that provide free medical care to citizens for only partial payment from the state of health services, which does not meet the requirements of Articles 22, 49 of the Constitution of Ukraine.

Thus, part one of Article 3 of the Law states that the state guarantees full payment in accordance with the tariff at the expense of the State Budget of Ukraine to provide citizens with the necessary medical services and medical products provided for by the program of medical guarantees.

Thus, part three of Article 4 of the Law stipulates that the program of medical guarantees determines the list and scope of medical services and medicines the payment of which is guaranteed at the expense of the state budget of Ukraine. Medical services and medicines not included in the program of medical guarantees are not subject to payment at the expense of the state budget of Ukraine.

It is also stated in the submission that the Law does not comply with Article 8 of the Fundamental Law of Ukraine, as it violates the constitutional principle of legal certainty, and its norms can be arbitrarily interpreted, which leads to a violation of fundamental human and civil rights guaranteed by the Constitution of Ukraine.

In addition, it is noted that by the norms of the disputed Law the legislator provided for the possibility of changing the rights and guarantees of a person and a citizen by adopting a by-law act, not by law, as required by the requirements of the Constitution of Ukraine.

Thus, in the constitutional petition it is indicated that the medical reform is not in conformity with Articles 8, 19, 22, 26, 49, 64, 85, 92, 95 of the Constitution of Ukraine, which makes it impossible to enforce the law and ensure the constitutional guarantee of the right to health care, and therefore all The reasons for recognizing the Law as unconstitutional are completely, convinced people's deputies.

At present, the relevant submission is under consideration by the CCU Secretariat.

It should be noted that, in addition to the medical reform, other, supported by the parliament, judicial, pension and educational reforms have already been appealed to the Constitutional Court of Ukraine.

Programs for masters in law and international law were approved

In 2018, the only entrance examination for a magistracy in "law" and "international law" from a foreign language will not have parts of "written speech" and "speech comprehension". Entrants will comprise only parts of "reading" and "using language".

The test tasks of the foreign language exam will be made in accordance with the Foreign language study programs for persons wishing to obtain higher education on the basis of complete secondary education approved by the order of the Ministry of Education and Science of February 3, 2016, No. 77.

In addition to an examination in a foreign language, the entrants to the magistracy in "law" and "international law" will also be required to complete a single faculty entrance examination on law and general educational legal competences. This is stipulated in the Terms of admission to the higher education institutions of Ukraine in 2018.

The test tasks of the "right" block will be made in accordance with the Program approved by the order of the Ministry of Education and Science of February 7, 2018, No. 115.

Tests will include the task of 8 basic legal disciplines: the constitutional law of Ukraine; administrative law of Ukraine; civil law of Ukraine; civil procedural law of Ukraine; criminal law of Ukraine; the criminal procedural law of Ukraine; international public law and international human rights law.

The test tasks of the block of "general educational legal competences" will be made in accordance with the Program approved by the order of the Ministry of Education and Science of April 8, 2016, No. 409. The tests will contain sections for assessing critical, analytical and logical thinking.

Note that registration for an entrance examination and a magistracy test on "law" and "international law" will be possible from May 14 to June 5, 2018. The tests themselves will take place in 2 stages: July 11 - from a foreign language, July 13 - for law and general educational legal competences.

This is due to the fact that in 2018 - so far as an experiment - a single professional exam in a foreign language will also be held for entrants to the magistracy in a number of humanities. These are, in particular, "humanities" (except for the specialty "philology"), "social and behavioral sciences", "journalism", "sphere of service", "international relations".

ECHR finds no violation in case about access to a court

the European Court of Human Rights in the case of Tsezar and Others v. Ukraine held, that there had been no violation of Article 6 § 1 (right of access to court) of the European Convention on Human Rights.

The case concerned a complaint by seven residents of Donetsk that they had not been able to bring cases challenging a suspension of pension payments and other social benefits (“social benefits”) before a court in the city where they lived.

The Court noted that because of the conflict in eastern Ukraine the authorities had moved the Donetsk courts was relocated to neighbouring Government-controlled territory. Relying on Article 6 § 1 and/or Article 13 (right to an effective remedy) of the Convention, the applicants complained of not being able to challenge the suspension of their social benefits in court as the courts had been removed from the area of hostilities. They also complained about the suspension itself under Article 1 of Protocol No. 1 (protection of property) to the Convention. Several applicants raised an issue under Article 14 (prohibition of discrimination) in conjunction with Article 6 and Article 1 of Protocol No. 1 about discrimination based on their place of residence.

The Court decided to treat the complaints under Article 6 and Article 13 in conjunction with Article 1 of Protocol No. 1 under the heading of Article 6 § 1 alone. It noted that the domestic courts in the city of Donetsk had been moved to areas under Government control after the outbreak of the conflict in eastern Ukraine. It had therefore to examine whether the authorities had taken all the measures available to them to organise its judicial system in a way that would ensure that the rights protected by Article 6 were effective in practice.

In Khlebik v. Ukraine it had found that the Government had done all it could to organise its judicial system in a way that was in compliance with Article 6 in the situation of an ongoing conflict. In this case too it decided that the domestic authorities had taken all the steps that could reasonably have been expected of them to ensure access to the judicial system for residents of territories outside Government control.

Given that there was no evidence that the applicants’ personal situations prevented them travelling to the neighbouring regions, the Court concluded that the very essence of their right of access to a court had not been impaired. The limitation of that right had been due to the objective situation of the hostilities in the areas the Government do not control and had not been disproportionate. There had therefore been no violation of the provision in question.

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