Chairman of the District Administrative Court of Odessa
This article is devoted to the analysis of legal regulation of pre-trial settlement of disputes between the parties to the administrative proceedings, taking into account the progressive international experience, namely in countries such as the USA, Canada, UK, France, the Netherlands and others. We investigate the possibility of using the negotiated procedure in the preparatory stage at the opening of administrative proceedings with the provisions of the current Code of Administrative Court Procedure. Makes suggestions for changes and additions to the Code.
Keywords: court settlement of the dispute, the court, the judge, the administrative proceedings, the Code of Administrative Procedure, the procedure of negotiations.
The legislation of Ukraine is a kind of a tool that needs to be improved. As any other tool, the legal mechanism for settlement of disputes in administrative proceedings, its procedure and rules may become outdated; which causes the need of their improvement and introduction of reasonable changes. As the saying goes, every comparison is lame… but as an excavator took the place of a spade and as a calculator substituted an ancient abacus, so appeared the new more advanced tools that should contribute to the establishment of justice in resolution of disputes and conflicts. Pre-trial settlement of disputes is one of such tools.
In this connection the following questions arise. What does this notion comprise? Do the Ukrainian courts apply the procedure of pre-trial settlement of disputes in their practice? Is this procedure appropriate and effective in resolution of conflicts between the parties? Does Ukraine need a special law on pre-trial settlement of disputes? These questions have yet to be dealt by scholars and legal practitioners in Ukraine. However, today the subject of pre-trial settlement of disputes attracts considerable interest, taking into account Ukraine’s integration into the European space. The possibilities and effectiveness of such instrument were examined by such scholars as G. O. Abolonin , Kimberli K. Kovatch , Yu. Litovtseva , P. S. Pributko .
Practical implementation of international experience in pre-trial settlement of disputes in Ukraine may become possible due to participation in international cooperation activities. As an example we can refer to the joint Canadian-Ukrainian project "Judicial Education for economic growth", one of the many tasks of which is the study of the possibilities of implementation of pre-trial settlement of disputes in Ukraine. Canadian Office of the Commissioner for Federal Judicial Affairs, which has the status of ministry, together with the High Qualification Commission of Justice of Ukraine envisages a pilot implementation of pre-trial dispute settlement procedure in courts of Odessa and Ivano-Frankivsk. District Administrative Court of Odessa was the first to participate in the project.
Through a comparative analysis of such concepts as "mediation", "restorative justice", "alternative dispute resolution" and "pre-trial settlement of disputes" it becomes evident that the distinctive feature of the latter is that negotiations are conducted by a professional judge. The majority of scholars and practitioners understand mediation as a method or procedure for dispute settlement by an independent party (by a mediator) [5, 6]. According to R. Koval, restorative justice is a process in which the parties involved jointly decide how to deal with its consequences and what conclusions they need to make for the future . It is possible to determine pre-trial settlement as flexible and confidential aimed at dispute settlement in the pre-trial order with a view to save time and money of the both, the parties and the state; as well as to consider options of conflict resolution that are not always possible to predict in a trial presided over by a professional judge.
V. Yarkov states that similarity of the above concepts is due to the fact that application of mediation or pre-trial settlement procedure allows the parties to achieve the most appropriate result in the shortest term and without the unnecessary bureaucratic procrastination. It also should be noted that neither “mediation”, nor “restorative justice”, not “pre-trial settlement of a dispute” currently have a legal definition and the corresponding regulation.
Pre-trial settlement of disputes in the administrative courts of Ukraine has the following priorities:
- independent alternative dispute resolution by the parties with the assistance of a judge;
- confidentiality of procedure guaranteed by the professional judge;
- taken decision satisfies the parties as a final result;
- time saving and avoidance of bureaucratic procedures.
Legal regulation of the procedure and conditions of pre-trial dispute settlement must be secured by law, for example, in relevant regulation that includes key procedural issues and detailed mechanism of pre-trial disputes resolution. This very document shall become fundamental and be correspondingly stated in the Code of Administrative Procedure or any other special legal act.
Taking into account the fact that in case of pre-trial settlement the dispute is mediated by a professional judge, the parties shall make a joint application (or each party shall make a separate application) to the court. If only one party submits an application a court shall notify the other party thereof and propose to make the similar statement. No party can be forced to such settlement of a dispute. Understanding of this is a kind of protection of a court against unfounded accusations of the parties concerning the prejudice of the court in favour of either of the parties or its interest in the outcome of the trial procedure. Parties conduct negotiations solely on a voluntary basis, and the dispute is settled by mutual concession. These actions do not contradict the provisions of Article 113 of the Code of Administrative Procedure of Ukraine . At the stage of pre-trial settlement of a dispute the role of a judge consists in helping settle the dispute by giving the parties the possibility to know the opinion of a judge of the situation that has arisen between them, inform on the legislation related to the subject of the dispute. In negotiation process a judge will be able, to the extent allowed by the available material and information submitted by the parties, to consider dispute solutions that are possible in case of a trial. At the same time it should be kept in mind that in pre-trial dispute settlement negotiations involving a judge is strictly confidential process.
Equality of negotiators is one of the principles of pre-trial settlement of a dispute, i.e. all participants of the procedure, including a judge are on equal positions. However, given the principle of equality, the powers of negotiators should be clearly defined. If the role and powers of a judge is partly fixed in the Code of Administrative Procedure of Ukraine, the powers of negotiating parties should be secured either in warrants of their representatives or in provisions and regulations of their organizations, institutions and enterprises. The peculiarity consists in that the representatives’ powers to reconcile and their limits should be specified.
Procedure for determining a judge for conducting negotiations in the frame of pre-trial consideration of a dispute is the same as in the case of court procedure. The judge, who will conduct the negotiations process, is determined by the judicial automated workflow system from among the judges elected by the general meeting of judges. The assigned judge informs the parties that s/he has been defined by the judicial automated workflow system to conduct the negotiations process, in due time offers to submit written explanation of the facts of the case and appoints a date for negotiations.
Given the principle of confidentiality, the negotiations are conducted in closed session and are not subject to disclosure. Thus, there is no protocol documentation and no audio/ video recording by technical means of the court or the negotiating parties.
According to Article 15 of the Code of Administrative Procedure of Ukraine the language of administrative procedure is determined by Article 14 of the Law of Ukraine "On the Principles of State Language Policy" . According to the decision of the 7th session of the Odessa City Council of the 6th convocation from August 13, 2013 "On the implementation of the Law of Ukraine “On the Principles of State Language Policy” in Odessa”, which granted the Russian language the status of a regional language, in the Odessa District Administrative Court the negotiations shall be conducted in the language that is the most appropriate for negotiators. If negotiators do not speak Russian or Ukrainian, they have the right to be provided with an interpreter.
Before the negotiation process begins the judge explains to the parties their rights and obligations, legal consequences of conciliation agreement or lack of negotiations’ outcome and the role of a professional judge in the procedure. Parties’ representatives may submit motions of procedural nature that are to be resolved in negotiation process. Then the parties sign regulations of negotiation procedure. After signing the regulations, but before the start of negotiations, each participant provides a receipt which contains information as to their agreement that pre-trial settlement of a dispute will be conducted by a particular professional judge; its terms and conditions; acknowledgement of the fact that the judge explained them their rights and obligations and they do not require additional clarification; and the professional judge’s agreement to be a participant of the pre-trial procedure. The receipt also states that the parties and their representatives acknowledge and agree that the process of negotiations on the settlement of the dispute is an attempt to resolve the dispute with the help of the professional judge, and thus, all the information, documents and other materials, which the parties exchange during the negotiation process, as well as all correspondence between each of the parties and the judge shall be impartial in character and shall be an integral part of the confidential negotiation procedure. In addition, the receipt also fixes the rule, according to which neither of the parties/ their representatives shall try to use any correspondence, information, documents and other evidence that have been used in the process as the empirical evidence in the present case or any other cases, other public law and private law proceedings, and neither party will call the judge as a witness in the present case or any other cases and proceedings relating to the dispute that is the subject of pre-trial negotiations. At the same time the judge shall not act as a party or other participant in the process in any case or proceedings relating to the subject of pre-trial negotiations.
The obligatory guarantee of judicial independence in negotiation process and after their completion is the provision that the parties agree that the judge shall not be a legal counsel to any party in the process and shall act solely as a judge of the district administrative court according to the Regulations governing the terms and conditions of pre-trial settlement of disputes; that they participate in pre-trial negotiations solely on a voluntary basis; that the judge shall have access to case records, available evidence, and may request additional documents in order to understand theoretical and legal basis of dispute consideration and the actual circumstances of the case.
The pre-trial settlement procedure is based on the mutual and individual negotiations, expression of the parties’ positions, and proposals as to dispute settlement. Regulations on pre-trial disputes settlement in the Administrative court establishes the legal status of negotiators. In particular, the parties are entitled to:
- provide oral and written explanations, their arguments and objections;
- provide evidence, list of evidence that they have;
- express their views on issues that arise during the negotiations;
- put questions to each other and the judge;
- conduct private meetings with a judge and their representatives; take time to think over their position, make decisions or provide the necessary proofs and information;
- other rights necessary to pre-trial dispute settlement that do not violate interests, freedoms and rights of the other party.
At the same time, the participants are required to:
- observe confidentiality, do not disclose information obtained in the course of negotiations in the trial or in litigation and proceedings in other cases;
- conscientiously use the rights entitled to negotiators;
- be respectful and responsive to the other party and the judge.
Regulations establish the right of each party to withdraw from negotiation at any time and continue the proceedings in court according to the procedure established by the Code of Administrative Procedure of Ukraine.
In turn, a judge may refuse to conduct specific negotiations if, in their opinion, there is no way to settle the dispute. During the negotiations a judge may:
- express their opinion on explanations and evidence provided or listed by negotiators;
- put questions to negotiators;
- coordinate the course of negotiations within the framework of the Regulations;
- stop the performance of negotiation participants if it is necessary to achieve their effectiveness;
- exercise other rights necessary for conducting effective negotiations to establish an agreement between the parties in the dispute.
During negotiations a professional judge shall:
- maintain confidentiality, not disclose the information and not communicate with the judge considering the case;
- transfer information from one party to another only with their consent.
If the parties reach consensus they sign a conciliation agreement, which shall be approved by the court. After that the proceedings shall be closed by a court decision according to Articles 113 and 157 of the Code of Administrative Procedure of Ukraine.
If negotiations are unsuccessful, all materials of pre-trial dispute settlement shall be destroyed and have no legal force, and the proceedings shall be renewed in accordance with Article 156 of the Code of Administrative Procedure of Ukraine. The case shall be considered in court, according to general procedure.
The main regulations of negotiation procedure shall be fixed in the relevant legal act (such as the Administrative Court regulations, etc.) and become a part of the administrative law of Ukraine. Therefore, for the effectiveness of implementation of pre-trial settlement procedure in the courts of Odessa and Ivano-Frankivsk it is necessary to amend the Code of Administrative Procedure of Ukraine with a separate chapter, which extensively regulates this procedure. And in the first place, there is a need to amend the Code of Administrative Procedure of Ukraine, namely, to fix in paragraph 15 the definition of the term “pre-trial dispute settlement” as a flexible and confidential administrative procedure that aims to resolve a dispute between the parties in pre-trial order with the assistance of a professional judge.
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