Ukrainian law

Legal news in Ukraine: сompetitions to the Supreme Court and the Anti-Corruption Court, ECHR will advise the Supreme Court, The Law on the Missing Persons came into force, the number of appellate judges is determined

05.08.2018 / 08:00
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Legal news in Ukraine: сompetitions to the Supreme Court and the Anti-Corruption Court, ECHR will advise the Supreme Court, The Law on the Missing Persons came into force, the number of appellate judges is determined

Сompetitions to the Supreme Court and the Higher Anti-Corruption Court started

The High Qualification Commission of Judges of Ukraine announced a new contest to the Supreme Court and a contest to the Supreme Anticorruption Court.

The Supreme Court has 78 vacant posts: 26 to the Cassation Administrative Court, 16 to the Cassation Economic Court, 13 to the Cassation Criminal Court and 23 to the Court Cassation Court. Thus, the total staff of the Sun is now 196 judges.

The Anticorruption Court has announced a competition for 27 judges of the Court, and for 12 judges of the Court Appellate chamber.

For the position of the Supreme Court judges can apply professional judges, scientists, lawyers and jurists. They should have 10 years of adjoining work experience.

Judges who have 5 years of professional experience can apply for an Anticorruption court. For other candidates this term is 7 years.

It should be noted that 1014 candidates declared their intention to take part in the contest to the Supreme Court, and 610 against – to the Anti-corruption Court.

«Competition procedures will be similar to the stages of the first contest to the Supreme Court. Candidates will pass the admission procedure, background investigation, undergo practical and psychological tests, interviews with psychologists and members of the HQCJU and ukrainian or international public organizations», says Sergiy Koziakov, the Chairman of the Сommission.

The Public Council of International Experts will assist in conducting the competition to the Anti-corruption Court. The Public Council for Integrity will have the right to take part in the contest procedure to the Supreme Court.

It is anticipated that the competition will last 6-7 months.

The procedure for the appointment of judges is as follows: HQCJU makes decisions and recommendations on appointments, which then sends to the High Council of Justice. The Council considers all candidates and makes representations to the President of Ukraine.

Documents for the competition can be submitted from August 8 to September 14, 2018.

To participate in the contest, the candidate submits to the Commission:

1) the written application for participation in the tender and for conducting a qualification evaluation;

2) the copy of Ukraine citizen passport;

3) the questionnaire of the candidate for the judge position,

4) the motivation letter, which sets out the motives for being a judge;

5) the declaration of the candidate kinship relations;

6) the declaration of the judge integrity;

7) the copy of higher legal education diploma (with attachments) received in Ukraine, copies of documents on higher legal education received abroad, together with copies of documents confirming their recognition in Ukraine, as well as copies of documents on the academic degree, academic title (in the presence of);

8) a copy of the work record book;

9) certificate of the medical institution on the health of the candidate with a conclusion on his suitability for work in the position;

10) written consent to the collection, storage, processing and use of information about the candidate to assess his readiness for work;

11) consent to a special inspection conducted in accordance with the law;

12) the declaration of the person authorized to perform the state functions, in accordance with anti-corruption legislation;

13) the copy of a military ticket (for servicemen or persons liable for military service);

14) the statement on the conduct of an inspection specified by the Law of Ukraine "On the purification of power";

15) documents confirming compliance with one of the requirements provided for in part one of Article 38 of the Law;

16) the certificate of conviction absence;

17) the CD with scanned copies of the documents specified by the Terms and information about the candidate.

The President approved amendments to the Law on the Judiciary and the status of judges

President of Ukraine Petro Poroshenko signed the Law «On Amendments to the Law of Ukraine «On the Judiciary and Status of Judges» in connection with the adoption of the Law of Ukraine «On the Highest Anti-Corruption Court».

The changes introduced to the Law «On the Judiciary and Status of Judges» and the Law «On the Highest Anticorruption Court» allow to ensure the effective launching of the work and the further functioning of the Higher Anti-Corruption Court, including its Appellate Chamber. It will become a significant step in the fight against corruption in Ukraine.

The law defines the work organization of the Anti-corruption court. The document also establishes a certain institutional, organizational, staffing and financial autonomy of the Appeals Chamber of the High Specialized Court.

At the same time, the law provides that appeals to cases of top corrupt officials will be carried out exclusively by the Appeals Chamber of the Anticorruption Court.

President of Ukraine Petro Poroshenko noted that the adoption of this Law fully opens the way for the creation and functioning of the Highest Anticorruption Court.

The Supreme Court may apply to the ECHR for consultation

On August 1, 2018, Protocol No. 16 to the European Convention on Human Rights entered into force. It allows national courts to receive ECHR consultations on human rights cases, reports the court press service.

It should be noted that Protocol No. 16 was ratified by Ukraine in October 2017. In our country the Supreme Court is the supreme court that can apply to the ECHR.

It was determined that since August 1, the document is gaining strength in relation to all signatories and ratifiers. In addition to Ukraine, they are Albania, Armenia, Estonia, Finland, France, Georgia, Lithuania, San Marino and Slovenia.

The document allows national courts and tribunals of these countries to address the ECHR with requests for the interpretation and application of the rights and freedoms set forth in the European Convention on Human Rights and its protocols. It should be added that the courts can ask for advice only on matters that are in the process.

The appeals of national courts must contain relevant legal and factual information about the cases.

ECHR will determine at its own discretion whether to provide advice or not. The court decisions will be valid and will not be binding.

Protocol No. 16 was signed, but not ratified yet by: Andorra, Bosnia and Herzegovina, Greece, Italy, Moldova, the Netherlands, Norway, Romania, Slovakia and Turkey.

The qualification evaluation is completed for 1385 judges

The qualification evaluation is completed for 1385 judges of local and appellate judges. 1,147 judges (83%) successfully passed this procedure, states High Qualification Commission of Judges of Ukraine.

Other 238 (17%) judges are subject to dismissal or have already been fired, in particular. 127 judges (9%) did not confirm their compliance with the position: 83 judges did not pass the exam; 44 judges did not interview with the members of the Commission.

111 judges (8%) were dismissed at their own discretion or were suspended during the evaluation. For 292 judges, a break was announced or a qualifying test stopped.

«Half of judges did not pass evaluation, and half resigned. Thus, the judiciary undergoes a procedure of purification and self-purification. We understand that there is a not enough staff in the courts because of this. So as soon as possible we make recommendations for the appointment and transfer of judges. Currently, 252 «five years» judges have already received recommendations for appointment», said Mykhailo Makarchuk, Member of the Commission.

It should be noted that the evaluation for the first thousand judges was announced on October 20, 2017 and lasts for 9 months. 252 «five years» judges already recommended to the Supreme Council of Justice for appointment to posts. This will allow to restore and unload the work of courts. 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 has begun evaluation in June.

The High Qualification Commission of Judges of Ukraine has appointed a qualification assessment in total for 5157 judges. Judges are evaluated by criteria of competence, professional ethics and integrity.

The Law on the Register of Missing Persons came into force

On August 2, 2018, the Law of Ukraine «On the Legal Status of the Missing Persons» came into force. The law defines the legal status of missing persons and ensures the legal regulation of relations related to the registration, search and social protection of such persons and their relatives.

The law supplements the Criminal Code of Ukraine with Article 146-1 «Forced disappearance». The article provides that the arrest, detention, abduction or imprisonment of a person in any other form, followed by a refusal to recognize the fact of treason or concealment of the fate of such person or place of stay, shall be punishable by imprisonment for a term of three to five years. The issuance of an order to commit such acts or failure to take measures for their termination and failure to notify the competent authorities about a crime – shall be punishable by imprisonment for a term of five to seven years.

In addition, the Code of Ukraine on Administrative Offenses is supplemented by Article 188-51. The article establishes fines for failure to comply with the lawful requirements of the Commission on the issues of missing persons and obstructing the exercise of its powers, the provision of false or incomplete information or failure to provide information within the time limit established by law.

Officials are punishable by a fine of 100 to 250 tax-free minimum incomes. Repeated infringement during the year entails imposing a fine on officials from 250 to 400 non-taxable minimum incomes of citizens.

According to the Law, the person acquires the status of the missing person from the moment of application submission about the fact of the person disappearance and its search or by a court decision.

Family members of a missing person are entitled to a survivor’s pension.

From the moment of entering data about a missing person to the Unified register of pre-trial investigations, on the property of such person may be established the custody in accordance with the Civil Code of Ukraine.

If both of the child parents are missing, then a guardianship is established over such child.

If on the maintenance of a missing person were adults who, because of their health conditions, can not exercise their rights and perform their duties independently, such persons shall be placed under guardianship.

Acquiring the legal status of a missing person does not change its marital status until the marriage is dissolved by the application of the second spouse after recognizing a person missing or until the death of the person.

Persons who have disappeared during military service due to an armed conflict and/or hostilities are provided with guarantees provided for by the Law of Ukraine «On Social and Legal Protection of Servicemen and their Family Members».

The law provides for the creation of the Commission on persons who have disappeared in special circumstances. The Commission will be a permanent active consultative and advisory body of the Ukraine Government.

The commission will coordinate the activities of state bodies, that are searching for missing persons, including those who have disappeared in the area of an antiterrorist operation on the territory of Donetsk and Lugansk regions. As well as persons who have disappeared due to armed conflict, military actions, riots inside the state or in connection with natural or man-made emergencies or other events that could cause mass death of people.

The Commission shall include, in particular, representatives of the Ukraine National Police; Security Service of Ukraine; The General Prosecutor's Office of Ukraine and the Ministry of Defense.

The Commission is the holder of the Unified Register of Persons Missing in Special Circumstances. The registry is created to collect, accumulate and centralize information about such individuals, as well as to record the information necessary for their effective search.

The Register contains information about:

the search of persons who have disappeared in special circumstances;

information that allows identification of a missing person in special circumstances, that includes the name of the person, place and date of birth, marital status, place of residence, the territory in which the disappearance occurred, circumstances and time of disappearance, the identity of the person, who disappeared due to special circumstances;

the presence or absence of a court decision on the recognition of a person missing or dead;

information about unidentified remains of persons, missing in special circumstances, and related things;

other information that may contribute to the search for a person who has disappeared in special circumstances.

If there is reliable information that the deceased person has died, the Commission concludes that there are circumstances indicating that person's death and sends it to his or her relatives.

Reliable information on death of a person is the results of the analysis and comparison of information about the seizure of human remains provided by search groups, posthumous information about such remains, provided by the forensic examination, information about DNA profiles and results of DNA matching, provided by DNA laboratories, with information, what is known about the missing person. This information is included in the comprehensive identification report.

If human remains can not be identified, information that may contribute to this is entered in the Register. This includes, in particular, the date and place of finding human remains, details of complete posthumous study, including particular signs, age, gender, clothing and personal belongings, samples and DNA profiles.

The burial of unidentified remains is carried out after the fixation of information that can facilitate its identification.

The High Council of Justice determined the number of appellate judges

The High Council of Justice has agreed to recruit 1,439 judges of appellate courts in 2018 . This is stipulated by the act of the Council «On the approval of the number of judges in appellate courts established in appellate districts».

The number of judges in the appellate general courts will be 964, the number of judges in the appellate economic courts – 218 and in the appellate administrative courts – 257.

It should be noted that according to part six of Article 19 of the Law of Ukraine «On the Judiciary and Status of Judges» the number of judges in court is determined by the State Judicial Administration of Ukraine in agreement with the High Council of Justice, taking into account the judicial load and within the limits of the expenditures specified in the State Budget of Ukraine for the maintenance of courts and pay for judges.

It should be reminded, the President of Ukraine liquidated appellate courts and formed appellate courts in appellate districts in December 2017.

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