Peculiarities of initial qualification assessment of judges
According to the requirements of Section II “Transitional Provisions” of the Law of Ukraine “On ensuring the right to a fair trial” and the Law of Ukraine “On judiciary and the status of judges” initial qualification assessment shall be held by the High Qualification Commission of Judges of Ukraine to decide on ability of judges to administer justice in the appropriate courts.
In accordance with paragraph 7 of Section II “Transitional Provisions” of the Law of Ukraine “On ensuring the right to a fair trial” initial qualification assessment of judges shall be conducted by the Qualification and Disciplinary Chambers of the High Qualifications Commission of Judges of Ukraine jointly, by forming the panels of three members on the basis of a mixed representation of each Chamber of the High Qualifications Commission of Judges of Ukraine.
In part of organization of initial qualification assessment, HQCJU shall decide on timing, schedule, venue, exact time of holding qualification evaluation and shall publish it on the official website of the Commission.
In respect of testing during initial qualification assessment, the exam shall consist of a written anonymous test and practical task. Unlike the exam, which judges have during the transfer to another court or within disciplinary punishment, the form of test during the initial qualification assessment will be different.
Time for completion of the written exam is 120 minutes.
Example of the task during initial qualification assessment
Commercial specialization:
The legal position set out in ruling of the Supreme Court of Ukraine as of 20 November, 2012 №3-53hs12 (case №28 /5005/640/2012):
The right of the contracting party to apply to court for demanding the change of the contract without following the procedure of pre-trial settlement of the dispute within the meaning of Article 188 of the Commercial Code of Ukraine and Article 11 of the Commercial Procedural Code of Ukraine.
Key provisions of the legal position:
- Choosing a particular remedy, including pre-trial settlement of the dispute, is a right but not an obligation of a person who uses it voluntarily and according to its own interests.
- Failure by the claimant to comply with the requirements of paragraph 2 of Article 188 of the Commercial Code of Ukraine concerning the obligation to send proposals on changing the terms of the land lease to another contracting party does not deprive him of the right to suit to the court against the defendant on changing the terms of the contract in case of the dispute, meaning the lack of agreement on change of the contract.
Thus, while assessing the judge’s result upon the task completion, the appropriate panel shall define whether the above-mentioned statements have been displayed in written work of a judge. If the judge explains the statements fully and correctly, the qualification of judge will be assessed as “Qualified.” If the judge does not fully explain the essence of the legal position (lack of any of the components, the components are not fully explained, one of the components is interpreted incorrectly, etc.), the result of the assessment task will be “Requires further training.” Finally, if the judge does not explain any of legal provisions or his explanations are wrong, the result of assessment will be “Not qualified.”
The similar approach shall also be applied by the Commission while assessing the knowledge of case law of the European Court of Human Rights.
All news