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ВЕСТНИК ПЕРМСКОГО УНИВЕРСИТЕТА
2014 Юридические науки Выпуск 1(23)
VIII. ПУБЛИКАЦИИ НА ИНОСТРАННЫХ ЯЗЫКАХ
УДК 342.7
DOMESTIC REMEDIES THA T HA VE TO BE EXHA USTED IN UKRAINE WHEN EVERYONE APPLYING TO INTERNATIONAL JUDICIAL INSTITUTIONS OR TO THE RELEVANT BODIES OF INTERNATIONAL ORGANIZATIONS
L.N. Deshko
PhD, Associate Professor of Constitutional and International Law Department Donetsk National University 1a, av. Vatutina, Donetsk, 83050 E-mail: [email protected]
Аннотация: The purpose of the article is to identify domestic remedies that have to be exhausted in Ukraine when everyone applying to international judicial institutions or to the relevant bodies of international organizations. The above analysis allows to reach such conclusions: the legislation of Ukraine provides a single cassation and review of the judgment. The law may provide for other forms of appeal and review of decisions of courts of general jurisdiction; domestic remedies that have to be exhausted in Ukraine when everyone applying to international judicial institutions or to the relevant bodies of international organizations are high specialized courts as courts of cassation for civil and criminal, commercial and administrative matters. High specialized courts are the High Specialized Court of Ukraine for Civil and Criminal Cases, the Supreme Economic Court of Ukraine, the Supreme Administrative Court of Ukraine.
Ключевые слова: domestic remedies; Supreme Court of Ukraine; the high specialized courts
The guarantee of subjective legal rights is everyone's right after exhausting all domestic legal remedies to appeal for the protection of his or her rights and freedoms to the relevant international judicial institutions or to the relevant bodies of international organizations of which Ukraine is a member or participant. (Article 55 of the Constitution of Ukraine) [2].
Were there used in case the applicant all possible legal means, defines the court itself with the features of the legal system of the respondent State and especially the system of justice; the specific circumstances of the particular case. Herewith, if the applicant did not appeal to a higher court (cassation), the European Court of Human Rights considers as not to exhaust domestic legal remedies, even in cases where an appeal to a higher authority has little chance of success (the European Court of
© Deshko L.N., 2014
Human Rights in the case of «Grey vs France 1999») [4].
Realization of the right to judicial protection is possibility to appeal judgments of appellate and cessation instances. Judicial review in the appellate and cassation ensures restoration of violated rights and legitimate interests of human and citizen, - the Constitutional Court of Ukraine in its judgment of 11 March 2010 [3].
According to Art. 125 of the Constitution, the Supreme Court is the highest judicial body in the system of courts of general jurisdiction. This status was confirmed by the Supreme Court of the Constitutional Court of Ukraine in the opinion of the constitutional proposal of the President of Ukraine to report on compliance with the Constitution of Ukraine of the Rome Statute of the International Criminal Court (case of the Rome Statute) on July 11, 2001 [7].
Judiciary reform of 2010 in Ukraine, which is actually the fourth stage of the national justice reform, changed the judicial system, the status of judges, judicial proceedings in Ukraine.
As a result of judicial reform, the Supreme Court has lost its constitutional status: instead of the highest judicial body (the latter court), he was the «intermediate» court actually subordinate procedural higher specialized courts (which determine which cases it can be considered and which are not), and denied the right to making a final judgment [5, p. 30].
In the science of constitutional law necessity of research the constitutional status of the Supreme Court of Ukraine and the High Specialized Court of Ukraine for Civil and criminal cases is caused by the pressing social needs. Some aspects of issue of the subject are reflected in the works of domestic scientists, but these studies have been done before judicial reform of 2010 in Ukraine. Comprehensive works on domestic remedies that have to be exhausted in Ukraine when everyone applying to international judicial institutions or to the relevant bodies of international organizations after judicial reform of 2010 do not exist.
Having regard to the chosen research topic is relevant and appropriate.
The purpose of the article is to identify domestic remedies that have to be exhausted in Ukraine when everyone applying to international judicial institutions or to the relevant bodies of international organizations.
In accordance with the first paragraph of Article 124 of the Constitution of Ukraine Justice in Ukraine is administered exclusively by the courts. These include the Constitutional Court of Ukraine and courts of general jurisdiction (Art. 124). The system of general jurisdiction courts in Ukraine are: The Supreme Court of Ukraine - the highest judicial body in the system of courts of general jurisdiction, the high specialized courts, appellate and local courts (of the second, third, fourth article 125). Delegation of functions of the courts, as well as appropriation by other bodies or officials is not allowed (Article 124). It is also forbidden to create extraordinary and special courts (part five of Article 125).
Law of Ukraine «On the Judicial System and Status of Judges» changed the constitutional status of the Supreme Court of Ukraine.
Thus, in accordance with Art. 17 above mentioned Law of Ukraine, system of general jurisdiction under the Constitution of Ukraine based on the principles of territoriality, specialization and instances. The system of courts of general jurisdiction consists of: local courts, courts of appeal, the high specialized courts, the Supreme Court of Ukraine. According to paragraph 3 of Art.17 of the Law of Ukraine «On the Judicial System and Status of Judges», supreme judicial body of general jurisdiction is the Supreme Court of Ukraine, the highest judicial bodies of specialized courts are high specialized courts.
In the system of courts of general jurisdiction the high specialized courts act as courts of cassation for civil and criminal, commercial and administrative matters. High specialized courts are the High Specialized Court of Ukraine for Civil and Criminal Cases, the Supreme Economic Court of Ukraine, the Supreme Administrative Court of Ukraine (Article 31 of the Law Ukraine «On the Judicial System and Status of Judges»).
The scientists rightly noted that Constitution (Art.125) states that the high specialized courts are «the highest judicial bodies of specialized courts». In Ukraine today there are two types of specialized courts - administrative and economic. According subsystems such courts headed by the Supreme Administrative Court of Ukraine and the Supreme Economic Court of Ukraine. General local and appellate courts that are considering civil, criminal cases and cases on administrative offenses are not specialized courts. Therefore according to the Constitution, the High Specialized Court of Ukraine for Civil and criminal cases as high specialized court cannot head a subsystem of general courts - local and appeal. However, by law, it has the authority to revise their decisions in cassation and is the highest judicial authority in respect of these courts [5, p. 31].
According to Art. 38 of Law of Ukraine «On the Judicial System and Status of Judges» the Supreme Court of Ukraine is the highest judicial body in the system of courts of general
jurisdiction. The Supreme Court of Ukraine: 1) review the case on the grounds of lack of uniformity of courts (court) of cassation the same substantive law in such relationship in the manner prescribed by the procedural law,
2) review the case when international judicial institution, whose jurisdiction is recognized by Ukraine, finds violation of Ukraine international obligations in dealing with court cases, and
3) give an opinion on the presence or absence in the actions, which accused the President of Ukraine, elements of state treason or other crime, making for the application of the Supreme Council of Ukraine on written submission about the President of Ukraine inability to perform his responsibilities for health reasons,
4) apply to the Constitutional Court of Ukraine on the constitutionality of laws and other legal acts, as well as an official interpretation of the Constitution and laws of Ukraine .
Such powers of the Supreme Court are the result of the elimination of the domestic judicial proceedings the possibility of double appeal. Thus, in the case «Ponomariov vs Ukraine» of 3 April 2008 the European Court of Human Rights said that one of the fundamental aspects of the rule of law is the principle of legal certainty, which implies respect for the principle of res judicata - the principle of finality of judgments. This principle states that neither party is entitled to seek review of a final and binding judgment merely because it aims to achieve a new hearing and its new solution [6].
The Constitutional Court of Ukraine in its judgment of 11 March 2010 concluded that legitimate can only be a single cassation and review of the decisions. The constitutional status of the Supreme Court of Ukraine as the highest judicial body in the system of courts of general jurisdiction does not allow the legislature giving it powers of cassation against decisions of high specialized courts, which implement the powers of cassation. Considering the possibility of establishing by lawmakers other forms to appeal of decisions of general jurisdiction courts other than those set out in paragraph 8 of Article 129 of the Constitution of Ukraine as the principles of justice - appellation and cassation appeal, the Constitutional Court of
Ukraine has concluded that its content is a constitutional provision does not contain an exhaustive list of forms of appeal against decisions of courts of general jurisdiction.
Herewith Council of Europe's leading expert Dr. S.Hass said: «The Supreme Court of Ukraine regarding its jurisdictional powers in fact destroyed, which is a unique phenomenon for European Constitutional Law» [8].
According to the rule of law the question of lawful distribution of powers between the Supreme Court of Ukraine and the higher courts of justice, definition of stages and forms of proceedings should be subject to safeguards the right of every person to a fair trial.
As a result of judicial reform in Ukraine in 2010, the Supreme Court cannot decide the question for a case to trial, and individuals and legal entities may not directly apply to him with complaints about the decisions of the lower courts. In legal literature indicated that for such restriction is specifically introduced new procedural Institute - permission by highly specialized court to proceedings of the case in the Supreme Court. It implies that the question as to the grounds for viewing by the Supreme Court the court decision of cassation accepts, in other words, the Court of Cassation whose decision is appealed. Herewith the Supreme Court has no right even take into consideration appeal against refusal of admission case to trial.
It is not only almost impossible to review this litigation and creates conditions for abuse, but also undermines the generally recognized principles of justice on which the matter is considered within a single instance of this court jurisdiction. In addition, the approach followed by the decision of «permission» (i.e., the possibility of considering) to the proceedings on the application for review of a particular case by the Supreme Court accepts not the Supreme Court, but that court, whose decision is appealed, in contrary to the principle nemo esse debet judex in propria causa (no one can be judge in his own case) [1].
However, the Constitutional Court of Ukraine in its judgment of 11 March 2010 stated that the presence of two appeals courts to
validate specialized court decisions do not meet the principles of legal certainty.
As a result of judicial reform in 2010, the Supreme Court denied the right to decide on the merits: it can only be fully or partially reverse the decision of the high specialized court and remand the case for a new trial before the same court. In legal literature stated that The Supreme Court's right to make a new judgment on the merits of the case and give it only right to cancel the decision of the court of cassation refer the case for a new trial and increase the time spans [9, p. 15].
However, the Constitutional Court of Ukraine in its judgment of 11 March 2010 stated that the Court of Cassation implements its procedural rights within any appeal only to verify the legal assessment of the case in the decisions of courts of first instance and appellate courts. As the cassation instance, the Supreme Court of Ukraine again, after the higher courts, review the decisions of the courts, which cannot be justified in terms of ensuring the right to a fair hearing within a reasonable time. In addition, the Constitutional Court of Ukraine held that only once cassation and review of the decisions may be lawful. The constitutional status of the Supreme Court of Ukraine as the highest judicial body in the system of courts of general jurisdiction does not allow lawmakers giving it powers of cassation against decisions of high specialized courts, which implement the powers of cassation. The above analysis allows to reach such conclusions:
1. The legislation of Ukraine provides a single cassation and review of the judgment. The law may provide for other forms of appeal and review of decisions of courts of general jurisdiction.
2. The constitutional status of the Supreme Court of Ukraine does not provide him by the legislator the powers of the Court of cassation concerning decisions of high specialized courts, which implement the powers of cassation.
3. High specialized courts are courts of cassation for civil and criminal, commercial and administrative matters. Higher courts exercise on the grounds and within the limits prescribed by the laws of justice, the authority of
the court of cassation decisions regarding appropriate specialized courts.
4. Domestic remedies that have to be exhausted in Ukraine when everyone applying to international judicial institutions or to the relevant bodies of international organizations are high specialized courts as courts of cassation for civil and criminal, commercial and administrative matters. High specialized courts are the High Specialized Court of Ukraine for Civil and Criminal Cases, the Supreme Economic Court of Ukraine, the Supreme Administrative Court of Ukraine.
References
1. Conclusion of Chief Scientific Expert Department of the Supreme Council of Ukraine of June 3, 2010 on the Draft Law of Ukraine «On the Judicial System and Status of Judges» (registration number 6450 from 31.05.2010). URL: http://w1.c1.rada.gov.ua/pls/zweb2/webpro c4_1?pf3511=37806 (accessed: 10.12.2013).
2. Constitution of Ukraine adopted at the Fifth Session of the Verkhovna Rada of Ukraine on June 28, 1996 № 254k/96-VR // Supreme Council of Ukraine. 1996. №30. P.141.
3. Decision of the Constitutional Court of Ukraine in the case of the constitutional petition of 46 People's Deputies of Ukraine concerning official interpretation of the terms «highest judicial body», «supreme judicial body», «cassation» referred to in Articles 125, 129 of the Constitution of Ukraine, Kyiv. Case number 1-1/2010 March 11, 2010 №8-rp/2010 // Official Bulletin of Ukraine. 2010. №21. P. 31. Section 882.
4. Judgment of the European Court of Human Rights in the case «Civet vs France», 1999. URL: http://sim.law.uu.nl/sim/caselaw/ Hof.nsf/e4ca7ef017f8c04 5c1256849004787f5/4bd5d525b8529019c1 2567fb0032946b?0penDocument (accessed: 10.12.2013).
5. Judicial Reform in Ukraine: current results and prospects for the next // Informational materials for the expert discussion on «Ju-
diciary reform in 2010: whether it brings justice in Ukraine up to European standards?». Kyiv, 2013. 130 p.
6. Judgment of the European Court of Human Rights in the case «Ponomariov vs Ukraine», April 3, 2008. URL: http://hudoc.echr.coe.int /sites/eng/ (accessed: 10.12.2013).
7. The conclusion of the Constitutional Court of Ukraine in the constitutional proposal of the President of Ukraine to report on compliance with the Constitution of Ukraine of
the Rome Statute of the International Criminal Court (case of the Rome Statute) Kyiv, July 11, 2001 Case №1-35/2001 №3-v/2001// Official Bulletin of Ukraine. 2001. №28. P. 104. Article 1267.
8. Vasil Onopenko. I was to. Kyiv, 2010. 494 p.
9. Romanyuk Ya.M. First Deputy Chairman of the Supreme Court of Ukraine, Chairman of the courts of Ukraine // Bulletin of the Supreme Court of Ukraine. 2013. №2. P. 15.
