News

25-04-2016

Andrii Hvozdetskyi, senior associate Spenser & Kauffmann: The state is trying to introduce a mechanism to punish others for using legal loopholes which it created

Draft Act No. 4203 envisages introduction of a criminal liability for circumvention from the distribution of impartial cases by the automation system of document control in courts.

Does it solve the problem and allow the corruption element to be eliminated? Which additional mechanisms could be used to bring the automation system of document control into line with international standards? Andrii Hvozdetskyi, senior associate Spenser & Kauffmann Attorneys-at-law commented on the document for the Ukrainian Journal  of Business Law:

– This draft proposes to criminalize bringing a lawsuit with several identical claims containing formal defects, in order to select loyal judges for the proceedings.

In my opinion, the respective amendments do not solve the problem. This does not apply to the issue of corruption, but it is the very disposition of the Criminal Code. When we speak about inaction by an office-holder of a court as actus reus, the following is important. While taking the original claim without evidence of payment of court fees or sending copies to the other party, the court office department carries out an act of incompleteness of claim. Thus, employees of the court office department are not committing criminal acts and are not the subjects of a crime. Another option is the actions of others (plaintiffs). While bringing several lawsuits, parties can add or modify the list of defendants or third parties, add other claims or circumstances. In this case, lawsuits will not be the same. Therefore, it will be impossible to prove the responsibility of the claimant or his representative for avoiding objective distribution of cases.

In addition, the same claims can be filed by different representatives of a legal entity. In fact, each representative will file only one suit, and there is no prescribed liability of legal entities by this clause.

In general, automatic distribution of cases is not a normal practice around the world. In many countries there are special bodies such as judge-administrator, who is authorized to distribute cases to other judges due to their specialization, workload and so on. In Ukraine, the switch from case distribution by chief judges to automatic procedure is another attempt to combat corruption by replacing people with machines. Responsibility for the violation, not the removal of causes and determinants, means not to remove the foundation, but to build a superstructure. This approach contradicts the logics of any problem-solving — the state is trying to introduce a mechanism to punish others for using legal loopholes which it created.