AJEE Monthly Update
In April 2022, a few new Online First publications were placed online under these links:
Mediation in the context of the enforcement of judgments and other enforceable documents should be distinguished from the broader and more general question of whether or not enforcement agents may serve as mediators. In Europe, there are some jurisdictions where enforcement agents may indeed serve as mediators.
This does not necessarily mean that in these jurisdictions enforcement agents use mediation in ongoing enforcement procedures executed under their supervision (the latter is qualified as ‘post-judicial mediation’ or ‘participatory enforcement’). In actual fact, examples of post-judicial mediation are scarce or non-existent even though they are discussed in literature. As will be shown in the present contribution, ‘post-judicial mediation’ is often not conceived as mediation in the strict sense (i.e. the bringing about of an amicable settlement under the guidance of a neutral mediator), but as a series of activities aimed at providing efficient and effective enforcement services. It is often better to refer to ‘post-judicial mediation’ as ‘participator enforcement’ or ‘amicable enforcement’. Best practices in participatory enforcement are the central topic of the present contribution.
Oksana Khotynska-Nor Judicial Transparency: Towards Sustainable Development in Post-Soviet Civil Society
The processes of transition to democracy that post-Soviet countries underwent in the early 1990s predetermined different directions for their further development. The author presents and proves the hypothesis that in the context of post-Soviet civil society, judicial transparency arose as a response to a social demand at a certain historical moment of crisis of public authority. The idea of transparency in post-Soviet countries appeared only at a certain level of development of political institutions and public law, pointing out the democratic transition of power. At the same time, its emergence established information asymmetry and the poor quality of state institutions of power.
The need to ensure the transparency of judicial activity, in addition to the natural process of the democratic transition of power, is also driven in post-Soviet countries by two important factors. The first is that in the modern world, the judiciary is increasingly becoming involved in the process of law-making, which requires the transformation of existing ideas about the system of checks and balances. The second is related to a global tendency in the fight against corruption, which has been a key problem for the countries of this region for many years. Although it has become the de facto rule for developed democracies, transparency affects the development of the legal culture of populations in transitional democracies differently. It performs various functions, including educational, preventive, stimulating, communicative, protective, and others.
The article pays special attention to the unique forms of communication between courts and the public that have arisen in post-Soviet countries with an unstable political situation. In studying them, the author highlights the transformation of transparency from a factor of the development of civil society into one of its results.
Kaluzhna Oksana and Shevchuk Marta Unconditional grounds for challenges to judges in criminal proceedings of Ukraine and ECtHR standards
The proper resolution of applications for challenge (self-challenge) of a judge (investigative judge, court) is important for further criminal proceedings, as a judicial error in this matter may result in the violation of a person’s right to ‘lawful composition of the court’ or the right to defence, which is grounds for the cancellation of the court decision in the case and its referral to a new trial (Art. 412 of the CrPC), the violation of the principles of reasonable time terms, and the legal certainty (finality) of court decisions as part of the rule of law. In judicial practice, proceedings on challenges belong to separate common proceedings, which usually end with a refusal to satisfy the challenge. Lawyers assess the institute of criminal proceedings of Ukraine as ineffective.
The purpose of the present study is to examine the grounds for challenge using the comparative method, so that views on their understanding are consistent in the professional environment and in judicial practice.
The article outlines the list of grounds for challenge of a judge (investigative judge, court) under the CrPC of Ukraine and presents their classification as unconditional and evaluative, which is crucial for the selection of methods of proof. The correlation between the national classification of grounds for challenge and the criteria for determining the impartiality of the court in the case law of the European Court of Human Rights (ECtHR) is shown. The main focus is on the analysis of unconditional grounds for challenge according to the national classification, and their content is revealed in relation to the positions of the ECtHR.
It is substantiated that the grounds for challenge are not only circumstances that cast doubt on the impartiality of a judge (investigating judge, court) found in para. 6 of Chapter 3 of the CrPC of Ukraine ‘Challenge’, but also circumstances that indicate that the judge does not meet the requirements of ‘legal composition of the court’ (Part 2 of Art. 412 of the CrPC) or ‘Court established by law’ (in the wording of part 1 of Art. 6 of the ECHR) found in various structural parts of the CrPC and in the Law ‘On the Judiciary and the Status of Judges’. It is substantiated that the wording of Part 1 of Art. 76 of the CrPC of 14 January 2021 is not consistent with the principle of access to justice by an impartial court (Art. 21 of the CrPC) since the right to an impartial tribunal (part 1 of Art. 6 of the ECHR) creates a conflict with Chapter 18 of the CrPC on the procedure for election, change of precautionary measures, does not meet the requirements of legal certainty, and may be grounds for complaints to the ECtHR.