One of the procedural innovations of the judicial reform is the introduction of the Institution of the Dispute Settlement Involving a Judge. Even though the Institution has existed since 15 December 2017, it is hardly ever applied to the administrative disputes.

 

Special procedure

Dispute settlement involving a judge is a special judicial (rather than extrajudicial) procedure carried out according to the Code of Administrative Proceedings. It is applicable only if the following terms are complied with.

First of all, it shall be agreed by all the parties to the dispute. The legislator does not require that the settlement of dispute involving a judge shall be agreed by third parties. However, such approach is controversial, since third parties who do not claim to the subject matter of dispute are involved in case, if the judgment infringes their rights or liabilities. Therefore, the terms of dispute settlement may affect their rights or liabilities.

Also, dispute settlement involving a judge is permitted only before the merit tria,l provided that the case is “legal”. The legislator permits to apply such procedure to all cases, apart from those specified in Chapter II (Section 11) of the Code of Administrative Proceedings (apart from the cases specified in Article 267 of the Code, as well as typical cases).

It is also required that third parties who claim to the subject matter of dispute shall not participate in its settlement.

It seems that if the terms of dispute settlement involving a judge, its format (general and private), and the procedure along with no state duty, etc. were determined, then such kind of dispute settlement would be widespread. However, such institution is hardly ever applied to administrative proceedings, and if so, it is inefficient.

 

Temporary restrictions

One of the reasons that influenced dispute settlement involving a judge is the time limit set by law. The legislator permits such procedure only before the merit trial within up to 30 days from the issuance of a relevant court order. Such a limit makes it difficult for the above institution to function efficiently. The issue of dispute settlement arises only during the merit trial, when the factual background was examined and the parties were heard etc.

It is also obscurely why the legislator is confined to settle the dispute involving a judge only in the trial court rather than in the appellate and cassation courts. The deadline for dispute settlement seems rather controversial, as it shall not exceed 30 days from the date when the relevant court order was issued. Moreover, such a period is limited and cannot be extended.

It seems that such deadline should help parties to promptly settle the dispute and prevent delays in the case hearing. However, such a limit would not help to apply the institution of the dispute settlement properly involving a judge, since the judges of the local administrative court have plenty of work. It may affect the quality of the dispute settlement process, which may cause the trivial settlement and failure to change its date within 30 days, etc.

The parties hardly ever settle the dispute within 30 days (if to consider the dispute settlement by the parties on their own). Therefore, the court should have the possibility to extend such period, if all the parties to the dispute and third parties, who do not claim to the subject matter of the dispute, reached an agreement. If it was not agreed by at least one party, case hearing may be delayed.

 

Mediator’s qualification and expertise

The above institution may be rarely applied due to lack of special knowledge and skills of “mediator” of judges. Since the relevant training is often conducted in Ukraine, a few mediators participate. The main reason is that the legislator does not require the proficiency and special skills from judges to settle the dispute involving them.

It is worth mentioning that they not only need to be aware of the laws to suggest and motivate parties to settle the dispute properly. On the other hand, it is sometimes difficult to understand and apply the relevant legal norms.

Therefore, concerning the case No. 809/1290/17 of the sole proprietor against the Ivano-Frankivsk State Tax Inspection to invalidate the tax assessment notices, the Ivano-Frankivsk Administrative Court closed the proceeding before the end of the pre-trial dispute settlement.

Thereafter, upon the plaintiff’s request, when the parties settled the dispute, the administrative court closed it and reopened the proceedings, and then approved the terms of the dispute settlement. Thereby, the court wrongly equated such different concepts as “pre-trial settlement of a public dispute”, “settlement of dispute between the parties” and “dispute settlement involving a judge”.

Moreover, the court stopped to settle the dispute involving a judge, did not even started it. Since the judge did not participate in the settlement process and the proceeding was withheld until the end of the pre-trial settlement. The court did not consider that the pre-trial settlement of the dispute is impossible if the proceeding was opened.

In the present case, the parties settled the dispute on their own, and the specified procedure was not applied. Instead, the court has come to another decision, wrongly equated different concepts.

The procedure also may not be applied because of the lack of experience of judges, which is caused by the limited (only in some cases) and short-term functioning of such institution.

 

The difficulties caused by authorities

One of the main difficulties of administrative dispute settlement involving a judge is the participation of authority (authorities). Under the requirements of Article 19 (Part 2) of the Constitution, the specified authorities must act only on the basis, within the powers and in the manner prescribed by the Constitution and laws of Ukraine. Also, according to the Code of Administrative Proceedings, dispute should be settled under the law and within the powers of authority (Article 190, Part 1). The above provisions complicate the process of dispute settlement, since the powers of authority are limited by law.

For example, tax authorities are not empowered to invalidate the tax assessment notices beyond the scope of administrative procedure and to deliver judgment on the merits.

Therefore, if the state authorities are not empowered to settle the dispute involving a judge, then the ways of settlement are limited. Indeed, if the state body deviates from the legal norms, it may be regarded as both abuse of powers and corruption.

Therefore, the Institution of the Dispute Settlement Involving a Judge is inefficient due to the gaps of current laws. In particular, the issue concerning the time limits, the ways to apply such a procedure in the appellate and cassation courts, expanding of power of the state authorities etc. shall be regulated by law.

 

Nina Kucheruk

Attorney, Head of Litigation and Arbitration

for “Law and Business”