Date of publication: 10 November 2015
Oleksandr Denysenko, Attorney at Law
Source: Yurydychna Praktyka
The Ukrainian court case automatic distribution system needs professional improvement
The automatic court document flow system replaced the “manual” case distribution system by chairmen of the courts after adoption in 2010 of the Law of Ukraine “On the Judicial System and Status of Judges”. The main drawback of the previous system was associated with the human factor generating risks of corruption and, therefore, in the new system the distribution role is assigned to impartial device.
Automatic equipment makes a decision
It should be noted that the transition to automatic case distribution system among judges was one of the components of the judicial reform, which was insisted upon by the Europeans, including the Venice Commission. Thus, pursuant to subparagraph “e”, paragraph 2 of principle of I “Basic Principles on the Independence of the Judiciary” of Recommendations of the Committee of Ministers of the Council of Europe “On the independence, efficiency and role of judges” of October 13, 1994, No. R (94) 12, cases should be distributed regardless of the wishes of any party to the proceedings, or any person interested in the outcome of the case. The distribution can take place, e.g. through draw procedure, or automatic distribution system in alphabetical order, or other similar system.
Paragraph 81 of the report of the Venice Commission “On the independence of the judiciary” of March 13, 2010 states the following: The Venice Commission strongly recommends that the assignment of cases to specific judges is based on the criteria, objective and transparent as far as possible, previously set forth by law or special resolution based on the law, such as a court order. Exceptions (to the rules) must be justified.
As envisaged in the effective wording of Article 15 of the Law of Ukraine “On Judicial System and Status of Judges”, a judge is chosen by the automatic system from the panel of judges at random and in the chronological order of receipt of cases. During the distribution of cases, specialization of judges and workload of each judge is taken into account. Amendments were also introduced in all procedural codes. For example, in accordance with Article 21 of the Code of Commercial Procedure (CCP) of the automatic court document flow system operates in commercial courts, which inter alia provides an objective and impartial distribution of cases between judges according to the principle of order and equal number of cases for each judge.
Decision of the Judicial Council of Ukraine of November 26, 2010 approved the Regulation on the automatic court document flow system. According to paragraph 2.3.7 of the Regulation, a judge is selected by the method of random numbers according to load factor of a judge at the time of automatic distribution of court case. Load factor of a judge is calculated by dividing the number of all cases that were assigned to the judge from the beginning of the year by the number of working days in which cases were allocated to the judge over the same period. The significance of each court case depends on the coefficient (category) of its complexity taking into account forms of participation of the judge in the case and performance by such judge of administrative functions not related to justice. In other words, the equipment, when distributing a case, each time calculates the average daily workload of each judge of a particular court from the beginning of the calendar year, as a result of which a case is assigned to the judge, who has the lowest workload.
It seemed to be a way out, and corrupt officials lost one of the main levers allowing them to choose the “insider” judge when considering the case. However, then the technology was invented allowing to circumvent the impartial equipment. We would explain its essence taking a business process as an example.
Several similar lawsuits are submitted to the court, which has to consider the case. Let’s call them “claims clones” for convenience. The more such claims clones were filed, the higher are chances of success. For the automatic system, all these claims clones are different, and each time when the data about the next lawsuit are entered in the system, it calculates the workload and makes the distribution of cases among the judges of a particular court. Considering the principle of the automatic system of equal workload distribution on the judges, claims clones are distributed to different judges.
The peculiarity of claims clones filed is that they all contain the so-called shortcomings: as a rule, there are no receipts for payment of court fee, or proof of sending copies of the statement of claim to the parties in the case, no power of attorney in the name of the representative who signed the statement of claim, etc., i.e. everything that is listed in Article 63 of the Code of Commercial Procedure of Ukraine and is the basis for return of the statement of claim. Shortcomings of the claims clones are necessary to prevent initiation of case proceedings by the “outsider” judge, because otherwise, according to paragraph 2 of Article 62(1) of the Code of Commercial Procedure of Ukraine on the prohibition of considering similar cases, the case will be heard by the judge who opens the proceedings first. All other claims must be refused according to the above rule.
Further, in accordance with Article 63 of the Code of Commercial Procedure of Ukraine a judge of the commercial court has three days to make a ruling on returning the statement of claim containing shortcomings listed in the same article. The plaintiff, who filed the claims clones to the Commercial Court, waits for the information that the automatic system distributed one of the claims to “insider” judge. Thereafter, the plaintiff promptly files to this particular judge the statement of claim with all “forgotten” documents attached. All other claims clones distributed by the automatic system to other judges are returned to the plaintiff returned because they have shortcomings that prevent their acceptance for consideration.
The technology described gives results (positive for the initiators and negative for the entire judicial system), and its application is more and more often described by the specialized and non-specialized editions. This technology was called “helicopter” in the press. The above suggests that it is time to amend the Ukrainian system of distribution of court cases for its improvement.
To improve the system
The first thing that comes to mind is inclusion of a certain indicator of identity in the automatic system. It means that an employee of the court, who enters the initial data about the statements of claim received in the system, when revealing several statements of claim with the same parties and identical subject matters must relate claims to each other, so that the system “sees” what these are claims clones. Further, all claims clones must be allocated to the same judge, who was chosen when the first claim clone was introduced in the system.
In addition to the above, it seems appropriate that the Plenums of the Supreme Court of Ukraine, the high specialized courts accept clarifications that the choice of the judge according to the technology of filing claims clones is a gross violation of the principle of impartial distribution of cases between judges and serves as a sufficient ground for recusal (self-recusal) of such judge. In this case, any party may safely apply for recusal by printing from the Unified State Register of judgments confirming submission of claims clones.