Court system

Court system. In Kyivan Rus’ the courts already had a partly public character. Five types of courts existed: (1) the prince’s court, headed by the prince or his representative (tyvun), in the principality’s capital city or at county sessions, which was a court of the highest rank; (2) the town assembly court or viche, which dealt initially with a variety of cases, but which later was assigned to the most serious ones; (3) the community or people’s court, presided over by elected elders (‘men of justice’), with general jurisdiction, which was the oldest form of court and was based on customary law; (4) private boyar courts, which had the right to decide on the cases of their subjects; and (5) ecclesiastical courts, which had jurisdiction over church people and in cases that involved crimes against the faith, adultery, and so on.

In the Lithuanian-Ruthenian state, on the territories under Lithuanian domination, the old court system remained in force for some time (the grand duke having jurisdiction over his vassal appanage princes). Later (after 1386), the court system changed under Polish and Western influence, and four types of courts came into effect: (1) the state courts—provincial courts for free citizens and central (mostly appellate) courts; (2) city courts in certain privileged cities; (3) community courts (called kopni sudy) based on Rus’ customary law; and (4) domanial courts, for nobles in their disputes with their subjects or tenants on their latifundia (see Domanial jurisdiction). In the Ukrainian provinces under Polish domination in the Polish-Lithuanian Commonwealth the Polish court system was introduced early, with the king’s vicegerent (starosta) having supreme judicial power in a province, followed by city courts (based mainly on Magdeburg law), local community (village) courts, and domanial courts (for more serious local cases and appeals stemming from the community courts).

In the Hetman state (1648–1764), village courts for non-Cossack villagers, company courts for Cossacks on the territory of a military company, and regimental courts on the regiment’s territory were in operation (with every higher court having appellate jurisdiction over the lower one). City, domanial, and ecclesiastical courts were also in existence. All of the above courts were called ‘provincial.’ There was another group of courts, the central courts, which included the General Military Court, the Court of the General Military Chancellery, and the Hetman’s Court (of the Chief Magistrate), with technically unlimited judicial powers. Hetman Kyrylo Rozumovsky’s reform of 1763, which was based on the Lithuanian Statute, changed the Cossack courts into land courts, city courts (regimental), and chamberlain courts (see pidkomorskyi court); the reformed General Military Court remained the supreme court in the system. The courts of the Zaporozhian Sich had a different system, based on the military organization of that territory. The lower courts were those of the kurin otaman and the palanka colonel; higher courts were those of the general judge, of the kish otaman, and of the Sich Council. The kish otaman was considered chief magistrate, and had the power of final decision during wartime. In peacetime his decision could be appealed to the Sich Council, in which all Cossacks could participate.

The Russian court system was introduced on the Ukrainian territories under Russian occupation in 1782. It was based on the existing social estates, and had separate land, city, and provincial courts for the nobility, clergy, burghers, and peasants. After serfdom was introduced, the landed gentry had jurisdiction over their serfs. This system was later replaced (in 1864) by courts of general jurisdiction, rural district courts (volost courts), and courts of appeal. Locally elected justices of the peace had jurisdiction over minor matters. An independent judiciary and trial by jury were introduced. Prosecutors (in criminal cases, under the minister of justice as the chief prosecutor) were attached to the courts.

In the Western Ukrainian provinces annexed later by Austria (Galicia, 1772; Bukovyna, 1774), the Austrian system was initially introduced. The Revolution of 1848–9 in the Habsburg monarchy stimulated reforms towards a modern, more liberal court system, which included county (povit) courts for minor civil and criminal matters, district (okruha) courts for more serious civil and criminal cases and as courts of appeal on decisions of the county courts, and one court of appeal, in Lviv. The Supreme Court in Vienna was the highest appellate court. Trial by jury was introduced for serious crimes, especially political ones. Prosecutors were attached to district courts and the court of appeal. Judges were appointed by the emperor for life. This system was in effect to the end of the Austro-Hungarian Empire (1918).

During the period of the Ukrainian struggle for independence (1917–20), the Central Rada undertook important measures to organize an independent court system, while maintaining some of the former judicial institutions. On 17 December 1917 the General Court was created to serve as the highest judicial body. It consisted of criminal, civil, and administrative divisions. The Hetman government of Pavlo Skoropadsky (1918) reorganized the court system again by creating, on 8 July 1918, the State Senate as the highest court, and criminal, civil, and administrative general court s. In addition, three regional appelate chambers (Kyiv, Kharkiv, Odesa) were established. This system was modeled on the previous Russian court system. Under the Directory of the Ukrainian National Republic the Central Rada’s system was reintroduced. In the Western Ukrainian National Republic an independent judiciary, with the supreme court in Lviv, was provided for by the law of 21 November 1918.

Under the interwar Polish regime in Western Ukraine, Polish laws established (by the decree of 6 February 1928) a modern court system, with county courts and district courts, courts of appeal, and the supreme court in Warsaw. Trial by jury was in effect until 1928; it was then abolished and replaced by lay judges.

Under Soviet rule various decrees of the Russian Soviet Federated Socialist Republic, beginning with the first Decree on Courts of 24 November 1917, replaced the tsarist system with a new system. After the occupation of Ukraine by the Bolsheviks these decrees were put into force and were later substantially copied in Soviet Ukrainian legislation. The new Soviet system consisted of people’s courts and revolutionary tribunals, the latter being given the task of trying ‘counterrevolutionary crimes.’ For the purpose of ‘fighting the counterrevolution,’ the Cheka, a non-judicial security agency using terror as its principal weapon, was also established, and the Cheka troika (collegium of three) became an extrajudiciary, repressive body. Two later decrees of the Ukrainian SSR (1922 and 1925) brought about further changes in the court system, each based on the Soviet Russian model.

On 25 December 1958 the Foundations of Legislation Concerning the Judiciary of the USSR and the Constituent Republics were enacted by the Supreme Soviet of the USSR. The Ukrainian Law Concerning the Judiciary was approved by the Supreme Soviet of the Ukrainian SSR on 30 June 1960. Under this law the court system consisted of raion people’s courts, oblast courts , and the Supreme Court of the Ukrainian SSR. Raion (municipal if in a city) people’s courts constituted the lowest and basic courts, with jurisdiction over most simple civil and criminal cases. Oblast courts dealt in the first instance with specified civil and criminal cases (eg, divorces, first-degree murder, high treason) and also acted as courts of appeal against decisions of the people’s courts. The Supreme Court of the Ukrainian SSR acted primarily as a court of appeal against the decisions of the oblast courts , but also had jurisdiction over certain civil and criminal cases of exceptional importance. It also heard protests against lower court judgments made by the procurators general of the Ukrainian SSR and the USSR and reviewed the decisions of the lower courts. The Supreme Court of the USSR had supervisory jurisdiction over the decisions of all republican courts, including Ukraine’s supreme court.

Under the provisions of the law, judges of the people’s courts were elected directly for five years, but only from among candidates submitted by the Communist Party or Party-controlled civic organizations; judges of the oblast courts and of the supreme court of the republic were elected for five years by the respective oblast soviets or the Supreme Soviet of the Ukrainian SSR. All judges were ‘accountable to their constituents,’ had to report to them, and could be recalled if their decisions failed ‘to agree with the policies of the Party and the government.’ This made questionable the provision that the judges were, in their decisions, ‘independent and subject only to the law’: their understanding and interpretation of the law had to be based on ‘socialist consciousness of the law’ as formulated by the Party and had to be compatible with its policies. By the same procedures, ‘people’s assessors’ (lay judges) were elected to sit with professional judges in people’s courts and oblast courts.

Soviet law provideed for an open court; in practice, however, the majority of criminal cases, especially those of a political character, were tried behind closed doors. Other rights granted by law to defendants, such as the right to a defense counsel and the right to use the native language in court, were equally restricted in practice.

Certain civil or even criminal cases could be adjudicated by agencies other than the courts. Disputes between state or co-operative institutions and between enterprises were decided by government arbitration; within enterprises, housing projects, collective farms, and so on, so-called comrades’ courts decided on disputes between members and even punished them for minor violations of the law. Most characteristic, however, was the practice based on the act of 5 November 1934 (never repealed) of the USSR that granted the NKVD (later KGB) the right, through ‘special boards,’ to apply to persons deemed socially and politically dangerous such punitive measures as exile, banishment (from capital and large cities, or industrial centers), and confinement in ‘correctional’ labor camps without any of the safeguards of the judicial system.

Yurii Starosolsky

[This part of the article originally appeared in the Encyclopedia of Ukraine, vol. 1 (1984).]

Court system in independent Ukraine after 1991.

In accordance with the principle of the separation of powers (the division of government into three branches: legislative, executive, and judiciary), the judiciary (court or judicial system) is one of the branches of power in Ukraine. Provisions relating to the administration of justice in Ukraine are stipulated in Chapter VIII of the Constitution of Ukraine of 1996. According to the constitution, courts are the only institutions administering justice in Ukraine. It is prohibited to delegate the functions of courts or to assign these functions to other bodies or officials. Through participation in the jury system, Ukrainian citizens play a direct role in the administration of justice. A judge administering justice is independent and guided by the following principles in carrying out his professional duties: the rule of law; the equality of all trial participants before the law and the court; the need to ensure proof of guilt (establish that the prosecution has proven the accused to be guilty beyond a reasonable doubt); the adversarial nature of court proceedings and the right of all parties to present evidence to the court and prove their persuasiveness before the court; the conduct of public prosecution before the courts by the prosecutor; providing the accused with the right to defense; the publicity of the trial procedure and its complete recording using technical means; trial within a reasonable time; ensuring the right to an appellate review of the case and to a cassation appeal against a court decision in cases specified by law; the mandatory nature of court decisions.

Particular regulations according to which judges can exercise their powers are specified in such legal acts as the special law ‘On the Judiciary and the Status of Judges’ as well as the Criminal Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine, and the Commercial Procedure Code of Ukraine. The judiciary is based on the principle of territoriality (this principle ensures the territorial limitation of the jurisdiction of the general jurisdiction courts in Ukraine), the principle of specialization (judges can hear civil, criminal, commercial, and administrative cases, as well as cases of administrative offenses) and the principle of instance (a principle that stipulates the right to review the decision of a lower court by a higher court). The court system of Ukraine consists of general jurisdiction courts and the Constitutional Court of Ukraine.

Historical milestones in the formation of the judicial system in independent Ukraine.

The minor judicial reform of 2001–2. Following the proclamation of state independence in 1991, Ukraine inherited the Soviet system of regulating the judiciary in Ukraine. In 1992 the Concept of Judicial and Legal Reform was adopted, and in 1994 the law ‘On the Status of Judges’ was approved. With the adoption of the Constitution of Ukraine on 28 June 28 1996, the legislation concerning the judiciary needed to be changed. Many laws were amended in order to provide citizens with genuine rights to judicial protection and particular regulations were designated according to which judges could exercise their powers. This process was called ‘the Minor Judicial Reform of 2001–2.’ The main part of this reform was the law "On the Judiciary of Ukraine", which came into force on 7 February 2002. After the adoption of the law on ‘Soviet heritage,’ the 1981 USSR law ‘On the Judiciary of the Ukrainian SSR’ in 1981 and the 1991 Ukraine law ‘On Commercial Courts’ both expired. According to the legislature of that time, the system of Ukrainian courts of general jurisdiction consisted of: local courts; courts of appeal; the Court of Appeal of Ukraine; the Court of Cassation of Ukraine (existed temporarily); higher specialized courts (the High Commercial Court of Ukraine and the High Administrative Court of Ukraine); and the Supreme Court of Ukraine.

Judicial reform of 2010. The main aspect of this reform was the adoption of the law ‘On the Judiciary and the Status of Judges’ of 7 July 2010. According to that legislature, the system of Ukrainian courts of general jurisdiction consisted of: local courts; courts of appeal; higher specialized courts (the High Commercial Court of Ukraine, the High Administrative Court of Ukraine, and the High Specialized Court on Civil and Criminal Cases); and the Supreme Court of Ukraine.

The Major Judicial Reform of 2016. This major judicial reform was implemented at the time when the Constitution of Ukraine (in the field of justice) was amended and the new law ‘On the Judiciary and the Status of Judges’ was adopted on 2 June 2016. The legal foundation for that reform was the law ‘On Ensuring the Right to a Fair Trial’ adopted on 12 February 2015, which in itself amended a number of procedural legal acts of Ukraine with the aim of improving national standards of justice and ensuring the right to a fair trial. As a result of that reform, the judicial system in Ukraine was altered. As a result, today the Ukrainian court system consists of the following categories of courts.

(1) Local courts. There are several types of the local courts: general local courts (district courts that are formed in one or more districts or city districts; in cities; or in a district (districts) and a city (cities); they hear civil, criminal, and administrative cases, as well as cases of administrative offences); commercial local courts (district commercial courts, which resolve legal cases arising from commercial relations); and administrative local courts (district administrative courts that deal with administrative cases). A local court is the court of the first instance.
(2) Courts of appeal. There are the following types of courts of appeal: appellate courts for civil and criminal cases and for cases of administrative offences; appellate courts for commercial cases; and appellate courts for administrative cases. These courts are divided into regional courts of appeal and courts of appeal of the city of Kyiv.
(3) Specialized courts that hear certain specific categories of cases. Currently the following two specialized courts exist in Ukraine: the High Court of Intellectual Property (has not yet begun to function) and the High Anti-Corruption Court (functioning; it administers justice in cases dealing with corruption and related criminal offenses and resolves issues of recognizing unjustified assets and their collection to the state revenue). The High Anti-Corruption Court operates both as a court of the first instance and as a court of appeal.
(4) the Supreme Court of Ukraine. This is the highest court in the judicial system of Ukraine, whose aim is to insure the stability and unity of judicial practice. As a rule, the Supreme Court functions as a court of cassation. It consists of the Grand Chamber of the Supreme Court; the Administrative Court of Cassation; the Commercial Court of Cassation; the Criminal Court of Cassation; and the Civil Court of Cassation.

The current legislation forbids the establishment of any other extraordinary and special courts. In addition to the above-mentioned courts, the Constitutional Court of Ukraine also exists within the court system of Ukraine. The Constitutional Court makes decisions on the conformity of the laws of Ukraine and other normative legal acts to the Constitution of Ukraine, carries out official interpretation of the Constitution of Ukraine, and decides on the compliance of the Constitution of Ukraine (constitutionality) with the laws of Ukraine in response to constitutional complaints by citizens, etc. The Constitution of Ukraine and the law ‘On the Constitutional Court of Ukraine’ of 13 June 2017 regulates the activities of this court.

On 11 June 2021 the ‘Strategy for the Development of the Justice System and Constitutional Judiciary for 2021–3’ was approved by the decree of the President of Ukraine. This document aims to ensure the sustainable functioning and development of the justice system in Ukraine in accordance with the current international standards and practices.

Kateryna Shunevych

[This part of the article was written in 2022.]

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