Feeble Demotivators

Oleh Trokhymchuk, Counsel, Attorney at Law

Source: ZN.ua

Judges’ liability for justice administering evasion, preparation by the parties of the draft of court judgement in the case, liberty for the courts of lower instances to retreat from legal standpoints of the Supreme Court. These are just a couple of the novelties of the high-profile draft law No. 4637, registered in the Parliament on 25 January 2021. And all of these, as stated by the draft law authors, are aimed at solving the problem of court judgements quality.

The problem is there, indeed. In order to ensure the most complete evaluation of suggested changes on the routine of court system, let us endeavor a brief historic overview into the maze of never-ending court reform.

Justification of court judgements

As a result of the court reform, which started back in 2015, all procedure codes were supplemented with new requirements to the justification part of the judgements.

Let us have a look at these changes by sampling the Commercial procedure code of Ukraine (the CPC).

Previous version of the CPC (adopted far back in 1991 with further amendments) contained general requirements to justification part of the judgement, namely:

• case facts, assured by the court;
• causes of dispute;
• evidence, based on which the judgement was awarded;
• contents of written accord between the parties, if it was reached;
• arguments, based on which solicitations and evidence of the parties were declined, their suggestions regarding the terms and conditions of contract or a covenant between the parties;
• legislation, which the court relied upon when awarding the judgement.

According to changes, introduced to the CPC in 2017 (the Law of Ukraine No. 2147-VIII dated 03 October 2017), requirements to the judgement contents were materially specificized. Thus, the justification part of judgement must now address:

• actual facts, assured by the court and the essence of disputed legal relationship with reference to the evidence, based on which the appropriate facts were assured;
• evidence, rejected by the court and justification for their rejection;
• justificatory evaluation of each argument, submitted by parties to the case regarding availability or unavailability of the grounds for satisfying the claim, except the case when an argument obviously does not pertain to subject matter of the dispute, appears to be obviously unreasoned or unacceptable taking the legislation or the consistent court practices into account;
• whether the unrecognized or contested rights and interests were infringed that the complainant addressed the court to protect and if so, by whom they were infringed, as well as justifications behind such a conclusion;
• legal provisions, applied by the court and the reasons behind their application;
• legal provisions, referred to by the parties, which the court did not apply and the reasons behind their non-application.

And already in 2019, the newly elected Verkhovna Rada supplemented the requirements to the judgement contents (the Law of Ukraine No. 132-IX dated 20 September 2019) with:

• list of circumstances, which are the fact in proof in the case;
• list of evidence that the parties use to confirm or reject availability of each circumstance, which is the fact in proof in the case;
• court conclusion of the particular circumstances that are the fact in proof in the case is recognized by the court as assured or rejected taking the stronger trustworthiness of the appropriate evidence into account;
• reasons for recognizing the evidence as stronger trustworthy in relation to each circumstance that is the fact in proof in the case.

How does all this work two years later? Now, according to the CPC, justification part must contain the detailed legal evaluation of each provided argument that pertains to subject matter of the dispute, which correlates with consistent practice of the European Court of Human Rights (ECHR).

ECHR points out several purposes for a court judgement reasoning:

• to demonstrate and prove, above all to the parties that the court has truly comprehended their legal standpoints, instead of ignoring them;
• to provide the parties with the opportunity of resolving on practicability of its contesting and of ensuring the effective appellate revision in the case;
• public control over justice.

That is, applicable procedure laws oblige courts to take evaluation of the entirety of evidence and arguments in each particular case very seriously in order to pick out those ones that require special attention and quoting in the judgement of the appropriate arguments in favor of their admittance or against it.

It looks like everything is correct, but the courts often omit this requirement referring, then again, to the ECHR practice, where the following reasonings are quoted:

• The Court reiterates that Article 6 para. 1 (art. 6-1) obliges the courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision (ECHR judgement dated 09 December 1994 in the case of Ruiz Torija v. Spain);
• Article 6 § 1 of the Convention obliges courts to give reasons for their judgments, but cannot be understood as requiring a detailed answer to every argument. The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is, moreover, necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. Thus, the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case (judgement dated 18 July 2006 in the case of Pronina v. Ukraine).

There are a variety of practical cases when a judge, as a matter of justifying his or her judgement, would refer to the above-mentioned practice of ECHR. In the reasoning, they would refrain from providing a justified evaluation of important arguments, quoted by the parties to proceedings, which are, as a rule, inconvenient for the court, referring to their alleged groundlessness, baselessness and that they do not rebut any conclusions, made by the court.

The changes to procedure codes, suggested by the draft law No. 4637 are aimed at filling this sort of gaps. Firstly, if a court considers that an argument does not require presenting its detailed legal assessment, then this shall be stated in the reasoning, alongside with the cause for this. Secondly, if the judgement reasoning shall not contain a detailed legal assessment of at least one argument, quoted by a party to proceedings and there shall be no legal reasoning of causes in the judgement, the dispute shall be considered unresolved.

Retreat from the Supreme Court’s position

The court system reform started from its superior institution — the Supreme Court (SC). Changes were implemented to Ukrainian Constitution and the Law On courts system and the status of judges, as well as a series of other legislations were adopted.

In the process of reform, the SC underwent considerable reorganization — its staff has changed dramatically: for the first time in history of independent Ukraine the Supreme Court membership included the scholars, attorneys and campaigners for rule of law, who were elected at a publicly open contest.

And it is this reformed SC that got the right to award model judgements, which the courts of lower instances must take into account when reviewing similar lawsuits. This has been done in order to reduce the load on courts and must promote fast review of one-type cases.

As a practicing attorney-at-law, I believe that the approach towards reforming the judicial system from top to bottom is perfectly correct. This has also taken little time to endure: only about three years have passed from the moment of the reform launch till the SC started effective work. Currently we do have the new, fully operative SC, whereas the reform process in the courts of lower instances is still underway and it unclear when it is going to be complete.

In fact, the draft law No. 4637 suggests that the courts of lower instances, which have not yet been reformed, be entitled to retreat from the SC practice at their own discretion, should they come to a conclusion that its position is incorrect. The situation here is extremely dubious.

Currently there are multiple cases of retreating by the Grand Chamber of the SC from positions that were previously articulated by the Supreme Court, but with time the situation will come to terms in a natural way. The unified practice must be elaborated, which would be a benchmark for the courts of lower instances. Such concept is both logical and corresponds to the powers of the SC, vested in it by clauses of applicable legislation, namely: ensuring unified application of the provisions of law by courts of various specializations.

Alongside with this, official providing to the courts of lower instances with the opportunity of considering the SC’s position incorrect and retreating from it at their own discretion shall hardly promote the compliance with the principle of legal certainty as one of the elements of the principle of rule of law.