Is a court still a “court established by law” if only its name has changed?

Can a judge who has been appointed to the “old” court continue to administer justice in the “new” court without any legal conflicts?

Identity through the prism of the name

According to the Constitution of Ukraine, a court is formed, reorganized and liquidated exclusively by law, and a judge is appointed to a specific staff position by a presidential decree (Article 126, Article 125). However, today there are circumstances when the act on the appointment (transfer) of judges in 103 local general courts that have changed their names does not correspond to the name of the legal entity to which such a judge is assigned. This creates a sense of “legal uncertainty” when acts on the appointment of judges (presidential decrees, decisions of the HCJ) do not formally correspond to the new names of local general courts.

A precedent from the past as a beacon of decision

More than 20 years ago, arbitration courts were transformed into commercial courts. At that time, the final and transitional provisions of the Law of Ukraine No. 2538-III dated 21.06.2001 “On Amendments to the Law of Ukraine ‘On Arbitration Court’ clearly stated:

“The arbitration courts of the Autonomous Republic of Crimea, oblasts, cities of Kyiv and Sevastopol shall acquire the status of local commercial courts and continue to conduct proceedings in cases referred to their jurisdiction by the Commercial Procedure Code of Ukraine.

Judges of the arbitration courts of the Autonomous Republic of Crimea, oblasts, and the cities of Kyiv and Sevastopol shall exercise the powers of judges of a local commercial court until the expiration of the term for which they were elected or appointed.

The judges of these courts shall retain the conditions of material and social support existing before the entry into force of this Law.

The chairmen and deputy chairmen of arbitration courts of the Autonomous Republic of Crimea, regions, cities of Kyiv and Sevastopol shall exercise the powers of chairmen and deputy chairmen of local commercial courts.”

What do we have today? The final provisions of Law No. 4273-IX left judges of local general courts simply “in limbo”: the legislator did not provide a clear answer on how to reconcile the new names of courts with the official act on the appointment (transfer) of a judge to the position.

Legal certainty is the key to trust

The principle of legal certainty is the foundation of the rule of law. The Constitutional Court of Ukraine has repeatedly emphasized:

“…legal certainty implies that the legislator should strive for clarity and comprehensibility in the presentation of the law. Each person, depending on the circumstances, should be able to navigate which rule of law applies in a particular case and have a clear understanding of the occurrence of specific legal consequences in the relevant legal relations, taking into account the reasonable and predictable stability of the rules of law (paragraph 6 of subparagraph 3.2. of paragraph 3 of the decision of 23.01.2020 No. 1-р/2020).”

Without this, the belief that “a court established by law” is not just a nice phrase from the Convention for the Protection of Human Rights and Fundamental Freedoms, but an effective mechanism that guarantees the independence and impartiality of justice, disappears.

European standards and practice

Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms clearly defines the “right to a fair trial”, one of the aspects of which is the right to a trial by a “competent court”, “a court established by law”, which the European Court of Human Rights has repeatedly emphasized in its judgments.

§ 23 and § 24 of the judgment of the European Court of Human Rights in the case of Sokurenko and Stryhun v. Ukraine (applications no. 29458/04 and no. 29465/04) of 20.07.2006 read as follows:

“23. In accordance with the Court’s case-law, the term “established by law” in Article 6 of the Convention is intended to ensure “that the judiciary in a democratic society is independent of the executive but is governed by law made by Parliament” (see the Zand v. Austria judgment, application no. 7360/76, Commission report of 12 October 1978). In countries with codified law, the organization of the judicial system also cannot be left to the discretion of the judiciary, although this does not mean that the courts do not have a certain margin of appreciation in interpreting the relevant national legislation (see Coeme and Others v. Belgium, nos. 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, para. 98, ECHR 2000-VII).

24. The Court reiterates that, as previously determined, the phrase “established by law” extends not only to the legal basis for the very existence of a “court”, but also to the compliance by such a court with certain rules governing its activities. In the judgment in the case of Zand v. Austria, mentioned earlier, the Commission expressed the opinion that the term “court established by law” in Article 6(1) envisages “the entire organizational structure of the courts, including (…) matters falling within the jurisdiction of certain categories of courts (…)”. 

In view of the above, the court must always be “established by law”, and this wording confirms the rule of law principle inherent in the entire system of the Convention and its Protocols.

The phrase “established by law” refers not only to the legality of the court’s very existence, but also to the composition of judges in each case.

Thus, the term “law” referred to in this provision refers not only to the legislation on the establishment and competence of the judiciary, but also to any other provision of national law, the failure to comply with which makes it unlawful for one or more judges to participate in the proceedings.

What to do next?

Of course, changing the name of local general courts is important for both Ukrainian historical memory and national statehood, and is ultimately part of a comprehensive process of decommunization and the establishment of Ukrainian national identity in the public space.

Therefore, while we support the idea of renaming local general courts with Soviet or Russian names, it is also clear that Section II of the Final Provisions of Law No. 4273-IX should be amended to include clear provisions:

– judges administering justice in the local general courts to which they were appointed (transferred) shall exercise the powers of judges of the renamed local general courts until the expiration of the term for which they were appointed (transferred);

– chairpersons and deputy chairpersons of local general courts shall exercise the powers of chairpersons and deputy chairpersons of renamed local general courts until the end of the term for which they were elected.”

This is the only way a “court” with a new name will not lose its status as “established by law” and will retain the trust of citizens. Because in times of great challenges, when the state is defending its land and values, it is necessary not only to decommunize names, but also to provide a deep guarantee of stability and predictability in every legal act.

Author:

Tetiana Opanasiuk, attorney at Litigation and Dispute Resolution practice at GOLAW