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The situation in the east of Ukraine did not change substantially during the reporting year. But there was some additional tension in the Sea of Azov, which toward the end of the year led to the imposition of aspects of martial law in some regions of Ukraine. The separation of the Ukrainian Orthodox Church from the Russian Orthodox Church became a dominant issue over the course of the year, which also influenced the political realm. Against the backdrop of this general situation, a continuation of legal reforms in the country remains a significant challenge.
Many reforms have already been implemented nonetheless. Reconstituted and reformed in December 2017, the Supreme Court can now look back on a year of business. Numerous constitutional complaints have already been submitted to the Constitutional Court of Ukraine after introduction of this instrument (as complaint against a law) as part of the constitutional reform two years ago. After the passage of the new Law on the Constitutional Court of Ukraine in 2017, judges at the Constitutional Court are now able to address these complaints.
In addition to the measures funded with the support of the Federal Ministry of Justice and Consumer Protection (BMJV), a project financed by the Federal Foreign Office was again launched in August 2018 (scheduled to run until the end of 2019): “Strengthening of constitutional court jurisdiction and the judiciary/administration of justice in Ukraine“. The Constitutional Court, which was assigned new competencies as part of the constitutional reform, will be strengthened by this project, especially in regard to the new legal remedy of constitutional complaint. This extends also to general jurisdiction and its independence, aspects which are facing significant challenges due to the extensive judicial reform. The measures funded by the BMJV and the Federal Foreign Office work together in synergy. A Twinning Project is also in place to support the Supreme Court.
Another important partner in 2018 was again the National School of Judges with its reforms of the training programme for judges. Initiated in 2016, the cooperation between the Kiev Appeal Court and the Higher Regional Court of Oldenburg has since been broadened into a regular technical exchange of opinions. The Ukrainian National Bar Association was also supported by the IRZ in cooperation with the German Federal Bar.
Some progress has been achieved in preparing the Ukrainian Administrative Procedure Act, for which a draft version has been available for years and on which the IRZ has provided ongoing counselling. The act may be passed in the near future. A codified administrative procedure law would be an important instrument in policy to combat corruption, among other things. Moreover, it would serve as a basis for case-law at administrative courts. Administrative court jurisdiction remains one of the priorities of IRZ counselling in Ukraine. In this area, partners include the (new) Administrative Cassation Court within the Supreme Court, as well as the administrative courts of first and second instance in the various regions of Ukraine.
For 2019, there are plans to revise the work programme for the Joint Declaration on Cooperation between the BMJV and the Ministry of Justice of Ukraine, which was signed in March 2017. During the reporting year, implementation of the Joint Declaration by the two Ministries of Justice was dominated by cooperation in the area of the Hague Convention on the Civil Aspects of International Child Abduction (HCCA), for which the IRZ conducted two measures in Germany and two in Ukraine, in some cases together with the Bavarian State Ministry of Justice.
The promotion of young legal professionals continued at the Ivan Franko National University in Lviv with the ninth course of German-language supplementary studies as an introduction to German law.
Foci of Activity in 2018
Constitutional Law/Human Rights and their Enforceability
Expert conference with judges and academic staff at the Constitutional Court of Ukraine in Kiev
Expert talks in Bonn with judges at the Constitutional Court of Ukraine on current issues of constitutional law
Preparation of expert assessments and working papers on individual questions of constitutional law
Administration of Justice
Working visit to Munich by a delegation from the Ukraine Ministry of Justice on the Hague Convention on Child Abduction (HCCA)
Workshop in Wustrau and Berlin on the text for the necessary amendments to civil procedure law and other wordings of laws necessitated in connection with HCCA
Working visit by the President of the Supreme Court to the Federal Court of Justice in Karlsruhe
Expert talks with the National School of Judges on legal internships in Kiev
Expert talk with representatives of the Higher Regional Court of Oldenburg at the Kiev Appeal Court
Working visit to the Higher Regional Court of Oldenburg by a delegation from the Kiev Appeal Court
Continuation of the exchange of experience with the President of the Ukrainian Supreme Court during the Conference of the Presidents of the Supreme Judicial Courts of the European Union in Karlsruhe
Expert talk on the issue of “Enforcement in connection with the HCCA“ in Kiev
Continuation of the expert talks on the issue of enforcement in connection with the HCCA in Kiev
Contribution to the “Conference of Ukrainian administrative court jurisdiction“ in Kiev
Preparation of a working paper on the topic of “Legal succession under public law“
14th German-Ukrainian Colloquium on Administrative Court Procedure at the Higher Administrative Court of Rhineland-Palatinate in Koblenz
Seminar on administrative court procedure law and administrative procedure law at the Ivano-Frankivsk District Administrative Court
Expert assessments of the current draft of the Administrative Procedure Act of Ukraine
Workshop in Bonn on the draft text of the Ukrainian Administrative Procedure Act
Working visit to Mainz and Leipzig by the Administrative Cassation Court within the Supreme Court of Ukraine
Criminal Law and Penitentiary Law
Expert talks on the law on lawyers (prioritising criminal defence) with Ukrainian lawyers in Lviv
Basic and Further Training
Supplementary studies as an introduction to German law at the Ivan Franko National University in Lviv (ninth course)
Research trip to Munich for the best graduate of the IRZ supplementary studies at the University of Lviv
Project funded by the European Union
EU Twinning project: Strengthening the institutional capacity of the Supreme Court of Ukraine in the field of human rights protection at the national level
This EU Twinning Project supports the newly established Ukrainian Supreme Court to move closer to modern European standards. This 24-month project has been led by the IRZ with the Latvian Ministry of Justice as junior partner since March 2017. It has a budget of approximately €1.3 million.
The Ukrainian Supreme Court was restructured in 2017 as a court of cassation during a comprehensive judicial reform. In addition, a review procedure was conducted in late 2017, during which all judges were replaced.
The main objective of the project is to familiarise the newly appointed judges with the newly introduced approach of cassation. Moreover, it is also intended to improve the legal framework for the business of the Ukrainian Supreme Court in accordance with EU standards, increase the professionalism of judges and court employees and add to the effectiveness of the Supreme Court’s case-law. Also included is the plan to enable greater public access to information on case-law and to establish more efficient working processes.
After delays in selecting and appointing the new judges, who represent the main target group of the project activities, the initial measures were not put into practice until the second half of 2018. The third component of strengthening the capacity of the Supreme Court and improving public access to the judiciary was brought to a successful conclusion in 2018, despite the initial delays. In this context, training courses and seminars were organised, including study trips to the Higher Regional Court of Cologne with the aim of building knowledge among Ukrainian legal experts within the area of judicial administration. Components 1 and 2 are earmarked for completion by June 2019 and should contribute to improving the legal frameworks, as well as the further training of judges.
Constitutional and judicial reform will continue to shape cooperation with Ukraine going forward. The Constitutional Court and the Supreme Court will remain key partners in this context. In connection with counselling on the law of judges, cooperation with the Highest Judicial Qualification Committee, the Supreme Judicial Council, the Qualification and Disciplinary Board of the Public Prosecutor‘s Office and the National School of Judges will continue.
As a key institution for the protection of civil rights, administrative court jurisdiction will remain a priority of the IRZ‘s work in Ukraine. Further training for the Ministry of Justice and representatives of public administration will be addressed in order to implement the Administrative Procedure Act, which may be adopted in the following year.
Cooperation between the BMJV and the Ukrainian Ministry of Justice will continue to be expanded within the framework of the Joint Declaration by the two institutions.
Promotion of young legal professionals will also proceed by means of the German-language supplementary studies on German law organised by the IRZ at the Ivan Franko National University in Lviv.
Despite the military conflict in Eastern Ukraine, the situation in the country can be described as reasonably stable. Against some resistance, work is being carried out in Ukraine to break away from old structures.
From a legal policy point of view, the year under review was dominated by the judicial reform dealt with in the first part of the constitutional reform, which led above all to a restructuring or re-establishment of the Supreme Court in December 2017, into which the previous Supreme Court of Justice for Civil and Criminal Matters, the Supreme Economic Court and the Supreme Administrative Court were integrated as courts of appeal.
An application procedure was provided for all judges in the new Supreme Court to which the previous judges of the above-mentioned courts also had to submit. Therefore, a selection procedure for these judicial posts was already conducted during the course of 2017. In November, the first 114 new judges of the Supreme Court were sworn in. This rigorous selection procedure, in which civil society bodies were also involved, is intended to ensure the high qualification and integrity of the newly recruited judges and is now expected to be extended to the lower courts as well. Furthermore, a Supreme Court for Intellectual Property and a Supreme Court for Anti-Corruption Cases are to be newly established. The IRZ has already held consultations on the planned establishment of a Supreme Court for Intellectual Property, and further discussions on the establishment of both courts are on the agenda.
The President’s Constitutional Commission continued its work in the year under review. In addition to the already existing three working groups (human rights, decentralisation and the judiciary), a fourth working group was set up, dedicated to the constitutional status of Crimea and its ethnic groups – Russians, Crimean Tatars and Ukrainians. The first part of the Constitutional Amendment Act adopted in 2016, which contains the judicial reform, had to be implemented in the year under review, e. g. with regard to the newly introduced individual constitutional complaint (as an appellate action).
The fight against corruption and the work of still young institutions such as NABU (National Anti-Corruption Bureau of Ukraine) or the Special Prosecutor’s Office still play an important role in the legal policy landscape and in the public debate.
The EU Association Agreement with Ukraine, which is also one of the six Eastern Partnership Member States, entered into full force on 1 September 2017. Since 11 June 2017, Ukrainian citizens with a biometric passport have been allowed to enter most EU countries without a visa.
In the course of the judicial reform in 2017, in addition to the Highest Judicial Qualification Committee and the Supreme Judicial Council, the Supreme Court was one of the important interlocutors to the IRZ – the latter, in particular within the framework of the EU Twinning project described below and the bilateral work of the IRZ with a view to the new composition of the court. The IRZ conducts regular judicial further training courses with the Judges’ Association of Ukraine on a wide variety of topics and in numerous regions of Ukraine in order to achieve the widest possible impact.
Within the framework of the constitutional reform, cooperation with the Constitutional Court of Ukraine as well as with the Constitutional Commission, to which the IRZ is able to send an advisor regularly, is of great importance. The professional exchange with Ukrainian administrative courts is being pursued with continued intensity, with administrative courts in the regions of Ukraine also being involved time and again. Consultations on the Administrative Procedures Act are also to be picked up again as soon as possible.
In March 2017, the Federal Minister of Justice and Consumer Protection, Heiko Maas, signed a new joint declaration, together with a work programme on cooperation between the Federal Ministry of Justice and Consumer Protection and the Ministry of Justice of Ukraine, which already included measures on penitentiary law, enforcement law as well as the Hague Convention on Child Abduction (HCCA) in the year under review.
The promotion of the next generation of young lawyers was also continued with the German-language supplementary introductory studies in German law at the National Ivan Franko University in Lviv.
As in previous years, the IRZ was able to rely on donations from the Federal Ministry of Justice and Consumer Protection and on project funding from the Federal Foreign Office.
Foci of Activity 2017
Constitutional Law/Human Rights and their Enforceability
Multiple participation of an IRZ expert in meetings of the Constitutional Commission of Ukraine
Multilateral symposium on the implementation of the Constitutional Amendment Act in Kiev
Consultation on a revision of the Rules of Procedure of the Constitutional Court of Ukraine
Symposium with the Constitutional Court of Ukraine in Kharkiv
Fifth and sixth expert discussion with judges of the Constitutional Court of Ukraine in Bonn on individual constitutional questions
Working visit to the Federal Constitutional Court and the ECHR by academic staff and administrative staff of the Constitutional Court of Ukraine
Civil and Commercial Law
Working visit on the establishment of the Ukrainian Special Court for Intellectual Property at the Federal Patent Court in Munich
Training of judges with the Judges Association of Ukraine on the topic of intellectual property in Chernihiv
Participation in the International Civil Law Forum in Kiev
Participation in the “Summer School on Intellectual Property” at the University of Bonn
Administration of Justice
Expert talks with the Highest Judges’ Qualification Committee in Kiev
Expert talks with the Supreme Judicial Council in Kiev
Internship for Ukrainian state bailiffs at the Regional Court of Aurich
Internship for private Ukrainian judicial bailiffs at the Regional Court of Aurich
Participation in a multilateral conference for representatives of regional associations of private bailiffs for enforcement in Kiev
Seminar on the Hague Convention on Child Abduction (HCCA) in Kiev
Workshop on mediation in connection with the HCCA in Wustrau and Berlin
Expert discussion with judges of the Higher Regional Court of Oldenburg at the Kiev Court of Appeal
Working visit by a delegation of the Kiev Court of Appeal to the Oldenburg Higher Regional Court
Further training seminar for judges on “Uniformity of case law” with the Judges’ Association of Ukraine in Cherkassy
Participation of German experts in the third South Ukrainian forum “Mediation and Law” in Odessa
Expert discussion with Ukrainian lawyers in cooperation with the Federal Bar Association in Kiev
Discussion event on mediation at the German Embassy in Kiev
Thirteenth German-Ukrainian administrative procedural law colloquium at the Rhineland-Palatinate Higher Administrative Court in Koblenz
Further training of judges in administrative procedural and administrative process law at the Ternopil Administrative Court
Criminal Law and Penitentiary Law
Expert talks on international mutual assistance in criminal matters in combating corruption in Kiev
Working visit for representatives of the Ukrainian Public Prosecutor’s Office for Fighting against Corruption in Wustrau and Berlin
Symposium on “Right to liberty and legal preconditions for deprivation of liberty” at the Supreme Court of Ukraine in Kiev
Working visit by a delegation from the Ministry of Justice of Ukraine to Berlin on the subject of the penitentiary system
Basic and Further Training
Supplementary introductory studies in German law at the National Ivan Franko University in Lviv
Research stay for the best graduate of this IRZ supplementary course in Munich
Projects financed by the European Union
Twinning Project: Strengthening the institutional capacity of the Supreme Court of Ukraine in the field of human rights protection at the national level
With this Twinning project, the IRZ, together with the Ministry of Justice of the Republic of Latvia as a junior partner, is supporting the newly established Ukrainian Supreme Court in moving it closer to modern European standards. The project started in March 2017 and will run for 24 months. It has a budget of around EUR 1.3 million.
Due to a comprehensive reform of the judiciary, the Ukrainian Supreme Court was rebuilt in 2017 as a court of appeal. In addition to restructuring, the complete replacement of judges at the end of 2017 following an open call for applications is of central importance for the Ukrainian judicial system.
The main objective of the project is to familiarise the newly appointed judges with the new way of thinking of the appeal judges. In addition, it is also intended firstly to improve the legal framework for the work of the Supreme Court of Ukraine in accordance with EU standards, secondly to increase the professionalism of judges and employees and thirdly to augment the effectiveness of the Supreme Court’s case law. Furthermore, it is the project’s task to improve public access to information on case law and to contribute to the effectiveness of working processes.
After delays in selecting and appointing the new judges, who are the main target group of the project activities, measures were able to enter the stage of concrete planning and structuring in the second half of 2017. In addition, judges from four member states drew up a comparative analysis of legislation in Ukraine and EU member states and prepared the basis for further analysis and recommendations in the field of e-justice.
The extensive reform of the judiciary and the implementation of the constitutional amendments will also shape the further cooperation with the Ukrainian partners. In connection with the reform of the judiciary, questions of the law on judges will have to be discussed with the Supreme Court, the Highest Judicial Qualification Committee, the Supreme Judicial Council, the Qualification and Disciplinary Board of the Public Prosecutor’s Office and the National Judicial School.
The IRZ consultations will also continue to focus on administrative jurisdiction, which is important for a functioning state embracing the rule of law, and thus on the further training for Ukrainian administrative judges. It is important that the administrative law working group of the Ministry of Justice, in which the IRZ will be represented, has recommenced its work on the draft of the Administrative Procedures Act. The IRZ will therefore be able to resume cooperation in this important area of law, following on from its previous long-standing consultations.
As part of the above-mentioned Joint Declaration, cooperation between the Federal Ministry of Justice and Consumer Protection and the Ukrainian Ministry of Justice will be continued and expanded.
The promotion of young researchers is also to be continued in the form of the German-language study programme at the University of Lviv, which has been tried and tested for many years.
Working visit led by Mykola Onishchuk (front centre), Director of the Ukraine National School of Judges, on the topic of lawyers’ training in Germany, here at the Cologne Higher Regional Court
Legal Policy Starting Point
The Ukrainian State President established a Constitutional Commission in March 2015. Following the commencement of its work on human rights, decentralisation and justice, an IRZ expert supported the content of its work. No majority has yet been achieved in Parliament for the proposed amendments to the Constitution with regard to decentralisation due to contentious regulations for the areas Donezk and Luhansk, although amendments to the Constitution to reform the judicial system were passed at the start of June 2016 and entered into force on 30 September 2016. This took place at the same time as the new Act “On the Courts System and the Status of Judges”. In accordance with this, citizens can, after recourse to the courts has been exhausted, have the constitutionality of a statute which has been applied in particular proceedings reviewed by the Constitutional Court.
The courts system will be reformed by the end of March 2017, in particular through the new introduction of the Supreme Court. The Supreme Economic Court, the Supreme Administrative Court and the Supreme Specialist Court for civil and criminal matters will be integrated into the new Supreme Court as courts of appeal. The former Supreme Court of Ukraine will be abolished. The new Supreme Court will be equipped with up to 200 judges, whereas candidates for these positions are now amongst other things required to disclose their financial situation in the course of an examination of their qualifications. In the reporting year, the IRZ was awarded the Twinning Project “Strengthening the Institutional Capacity of the Supreme Court of Ukraine in Human Rights Protection at the National Level”, which supports the Supreme Court of Ukraine and is set to commence in 2017.
In addition, the intention is to create two Supreme Courts for Intellectual Property and Anti-Corruption cases by the end of 2017. From the start of 2017 onwards, the necessity of representation by a lawyer in court will also be introduced step by step. The independent administrative court system in Ukraine, which has existed since 2005, is now also anchored in the Ukrainian Constitution. At the start of October 2016, significant alterations to the enforcement law entered into force after preliminary work which in some cases lasted for years. In accordance with these, the institution of the private bailiff was introduced for at least some of the claims to be enforced, together with a register of debtors. Provision is also made for the possibility of accession to the Rome Statute of the International Criminal Court within three years.
The IRZ has already advised Ukraine on the subjects specified above over a long period, and numerous consultations in the reporting year 2016 were also devoted to these focal issues of constitutional and judicial reform. As changes already for the most part exist at the level of ordinary statutes, the decisive element will now be the drafting of subordinate legislative norms and their implementation in practice. The IRZ will therefore also continue its close support for Ukraine precisely in these areas in future.
Alongside this, cooperation with the Ukrainian administrative court system formed part of the agenda for 2016, as well as consultation on fighting corruption and practice-oriented further training for judges. Main cooperation partners were the Parliament, the Ministry of Justice, the Constitutional Court, the Supreme Court of Ukraine and the courts at different instances in the regions of Ukraine, the Supreme Administrative Court, the General Prosecutor’s Office and the National School of Judges, as well as the newly established National Anti-Corruption Bureau of Ukraine.
The IRZ likewise continued its successful cooperation with the National Ivan Franko University in Lviv for the promotion of young lawyers. The seventh annual course of the German-language supplementary introductory studies in German law has in the meantime begun.
As in previous years, the IRZ was supported by grants from the German Federal Ministry of Justice and Consumer Protection and project funding from the German Federal Foreign Office.
Foci of Activity 2016
Constitutional Law / Human Rights and their Enforceability
Specialist discussions in Berlin with judges of the Constitutional Court of Ukraine on issues concerning the relationship between the Constitutional Court and the executive as well as the supranational courts, and on the introduction of the instrument of the constitutional complaint
Specialist discussions in Bonn with judges of the Constitutional Court of Ukraine on issues concerning the fundamental democratic constitutional order, the case-law of the European Court of Human Rights and the organisation of the courts
Working visit to Heidelberg and Strasbourg by representatives of the Ukrainian Association of Judges on the topic “The European Convention on Human Rights”
Specialist conference in Kiev on the occasion of the 20th anniversary of the foundation of the Constitutional Court of Ukraine
Participation by a Ukrainian constitutional judge on the IRZ panel during an OSCE conference in Warsaw
Administration of Justice
Working visit to Trier, Düsseldorf and Cologne by a delegation from the National School of Judges of Ukraine on the topics “Legal examinations and the selection, assessment and further training of judges”
Study trip to Bonn, Düsseldorf and Cologne by a Ukrainian delegation on the topic of “Legal training in Germany”
Multilateral conference at the Lviv Appeal Court on the topic of press work, collisions of interest and court management (with the Cologne Higher Regional Court, the Cracow Appeal Court and Arnhem-Leeuwar-den Appeal Court)
Working visit by representatives of the Kiev Appeal Court to the Oldenburg Higher Regional Court and the Aurich Regional Court
Conference in Kiev on the topic “Developing the law” at the Supreme Court of Ukraine
Participation by Ukrainian judges at the multilateral conference of the Memorandum Group of the Association of Judges in Chişinău on the topic “Safeguarding the uniformity of case-law as a task for the supreme courts”
Working meeting at the IRZ in Bonn on the wording of the implementation ordinances for the new Ukrainian enforcement law
Specialist discussions for lawyers in Kiev on the regulation of the legal advice market, the monopoly of lawyers and professional liability
Specialist discussions for lawyers in Odessa on the topics “Free legal aid, the independence of judges and access to justice”
Second South Ukrainian Forum “Mediation and the Law” in Odessa
Further training seminar for judges in Dnipro on arbitration with the Ukrainian Association of Judges
Internship on the bailiffs’ system in Germany
Twelfth German-Ukrainian colloquium on administrative procedure at the Rhineland-Palatinate Higher Administrative Court and the Koblenz Administrative Court
Seminar on administrative court procedure law and administrative procedure law at the Zaporishya Administrative Court
Participation by an Ukrainian IRZ expert at the GIZ Forum on administrative law in Leipzig
Repeated participation at internal consultations in Kiev by the Ukrainian Ministry of Justice on the draft Administrative Procedure Act
Criminal Law and Penitentiary Law
Further training and further specialist discussions in Kiev for investigators of the National Anti-Corruption Bureau of Ukraine (NABU)
Further training seminar in Kiev for judges on fighting corruption together with the Ukrainian Association of Judge
Specialist discussions in Kiev with the Department for Asset Recovery of the Ukrainian National Police
Participation by an IRZ expert at the international conference in Kiev of the Ukrainian General Prosecutor’s Office on the role and reform of the Public Prosecutor’s Office
Further training seminar for judges in Chernivtsi on criminal procedure law with the Ukrainian association of Judges
Working visit in Wustrau and Berlin by representatives of the National Anti-Corruption Bureau of Ukraine
Basic and Further Training
Supplementary introductory studies in German law with European reference at the National Ivan Franko University in Lviv
Research stay in Germany by the best graduate of the IRZ supplementary studies in German law at the University of Lviv
Working visit to Germany, Passau and Munich by representatives of the University of Lviv on the topic of basic training for lawyers
The implementation of the constitutional amendments specified above in practice, not only in the field of the constitutional courts, but also in the entire judicial system, will certainly remain a major topic in the near future. In this context, the main issues will be the constitutional complaint, the new role of the Supreme Court, safeguarding the uniformity of case-law whilst maintaining the independence of the judiciary and issues of the disciplinary law of judges, the judgment system, the jurisdiction of the administrative courts, administrative procedure law, execution enforcement law and fighting corruption.
The IRZ will attempt not only to cooperate with judges, but also with the Supreme Council of Justice and academic staff. The IRZ’s work will continue to extend to the regions of Ukraine. The cooperation with the Ministry of Justice will receive particular attention. Cooperation with the Bar is also set to continue. If there is a need for consultation in the field of the preventative administration of justice by notaries, this can also be taken up following on from the work to date. Finally, the positive promotion of young lawyers with the study course at the University of Lviv will be continued.