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Judicial reform: carry out, not revoke

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The Verkhovna Rada is actively working on judicial reform that the public and international partners have demanded from the Ukrainian authorities for many months. The justice system reform in Ukraine is planned to be completed in 2023. However, the legal community is still critical of innovations and believes that they lack a systematic approach. The Page has investigated whether bills from the President could solve the problem of the judiciary?


On June 12, 2021, Volodymyr Zelenskyy signed a decree "On the Strategy for the Development of the Justice System and Constitutional Proceedings for 2021—2023". The document, in particular, defines the priorities for improving legislation on the judicial system, the status of judges, court proceedings and other justice institutions, as well as imposing the urgent measures to improve the activities of legal institutions. The Strategy defines the problems that need to be solved to further improve the functioning of the judiciary and the administration of justice.

The innovations should affect the Verkhovna Rada, the High Council of Justice, the High Qualification Commission of Judges (HQCJ), candidates for the positions of judges, and judges. All areas of the Strategy will run in parallel. For example, the judiciary reform begins with the restart of the most important institutions that are the High Qualifications Commission of Judges and the High Council of Justice.

Among the advantages of the reform there are digitalization and improvement of the advocateship institution. At the same time, the lawyers are dissatisfied with the imposition of the "court card" that provides for the transition to the model: one region—one court of appeal. It will include chambers for the consideration of criminal, civil, administrative, and economic cases. That is, another reshuffle of judges and buildings awaits the Ukrainian judicial system.

Most experts and think tanks assess Zelenskyy's judicial reform rather ambiguously. Although it proposes changes in the right direction, it does not establish a clear mechanism for how to achieve them. Oleksandra Panasytska and Eduard Dudka, the Junior Analysts of the analytical platform VoxCheck Oleksandra Panasytska, commented this to The Page.

Quote"The judicial reform is now mainly based on the On the Strategy for the Development of the Justice System and Constitutional Proceedings for 2021—2023". As noted by the DEJURE Foundation, this document can hardly be considered a strategy itself, that is, a global vision of the necessary systemic changes. There are certain positive aspects in this document, but their implementation will not lead to systemic changes," is said in their commentary.

One of the pain points, according to the experts, is that the Strategy contains mostly general formulations that can be interpreted quite broadly—towards reforms and preserving the status quo.

The provisions of the Strategy for the formation of the High Qualification Commission of Judges (HQCJ) are also rather vague, so they are not able to improve the effectiveness of the body, even if they are formally implemented, the VoxCheck specialists explained.

Quote"Another reform gap: the Strategy specifies that "in the long term" HQCJ should obey the High Council of Justice. This contradicts the provision on the HQCJ independence. Moreover, the President's plan does not specify under what conditions such subordination will take place," experts say.

And they add that at the same time the Strategy also proposes some really necessary steps regarding positive changes. Among the advantages, they note the provisions of the Strategy that bring back the criminal responsibility for an unjust decision. The reform should also abolish the resignation of judges if they have committed a disciplinary offense.

The strategy also proposes to impose a mechanism for verifying the virtue of acting judges of the Constitutional Court and a transparent procedure for competitive selection of judges of the Constitutional Court with the possibility to involve international experts.

High Council of Justice

On July 14, 2021, the Verkhovna Rada adopted a law on the reform of the High Council of Justice, a key body in the judicial system, that provides for checking the integrity of the HCJ members, and also changes the procedure for bringing judges to disciplinary responsibility.

The law is one of the key requirements of the International Monetary Fund to Ukraine. Its goal is to impose the principles of professional ethics and honesty into the activities of judicial self-government bodies. It also proposes the procedure for the formation and activities of the Ethical Council that will include three persons from among the judges or retired judges approved by the Council of Judges of Ukraine. It should also include three people approved by international organizations Ukraine has been cooperating with in the field of preventing and combating corruption or in the field of judicial reform for at least the past three years.

By the way, it was the decisive role of international experts in the selection of the HCJ members that raised many questions. The law did not suit either the international community or the IMF. In the end, parliament agreed that international experts would have a casting vote and be able to veto any candidate they doubted. Also, the commission with international experts will determine 32 finalists of the competition, and the HCJ will choose and appoint 16 members of the HQCJ from them at its own discretion.

However, despite the fact that the Venice Commission had previously approved this bill, the High Council of Justice itself urged parliament not to pass it.

Panasytska and Dudka gave The Page the main reasons why, in their opinion, the HCJ had criticized the bill:

  1. The bill actually completely transfers all the powers to elect/appoint members of the HCJ to the newly created Ethical Council. This is contrary to the Constitution, as it restricts the right of other actors to freely choose or appoint members of the HCJ.
  2. According to the bill, the decision of the Ethics Council is approved if at least four members voted for it, three of whom are elected by international organizations. This puts the members of international organizations in a privileged position. At the same time, according to the Constitution, only citizens of Ukraine, and not foreigners, have the right to form constitutional bodies. International partners can only perform an advisory function.
  3. In a constitutional democracy, the judiciary and courts should not undergo drastic changes. However, the bill provides for interference in the activities of the judiciary.

High Qualification Commission of Judges

On July 12 this year, the bill on the resumption of the HQCJ work got a presidential veto. It was returned to the Verkhovna Rada for reconsideration. The key significance of the document is that it introduces a new selection procedure for the High Qualification Commission of Judges (HQCJ)—this is the main body that selects and assess judges and recommends them for appointment.

In particular, the President proposed:

  • bring the law in line with the European Charter on the Law "On the Status of Judges". To do this, to define that the HQCJ has the authority to make decisions if at least 11 out of 16 members are appointed to its composition, provided that at least 6 of them are judges or retired judges;
  • eliminate differences in the text of the law, in particular on the procedure for making decisions by the Commission that will select the first composition of the HQCJ;
  • making decisions necessary for the selection of the HQCJ first composition not only by the head of the HCJ, but also by the person performing his duties.

According to the Center of United Actions, the President's proposals were in line with the European Charter on the Law "On the Status of Judges", eliminated differences in the text that could become an obstacle to the resumption of the HQCJ work.

At the same time, they did not take into account the inconsistency in the procedure for making decisions by the competition commission that would select the first HQCJ composition. In particular, the provision of sub-paragraph seventeen, paragraph 16, section I says that at least 4 votes are needed to adopt decisions. And in the next paragraph it is stated that in the case of the same number of votes "for" and "against", the votes of three members of the competition committee, two of which were proposed by international organizations, are decisive. However, the second rule will not work, because the first one requires at least four votes to adopt a decision.

Analysts believe that the President's proposals should have included two alternative procedures for the competition commission decision making: either by the majority of the commission—4 or more votes, or by three votes, provided that the commission members proposed by international organizations gave two votes in favor. As a result, this would increase the likelihood of adopting decisions by the commission.

After all, on July 13, the Verkhovna Rada adopted in general a law on the restart of the High Qualification Commission of Judges of Ukraine with the decisive role of international experts in the formation of the HQCJ with the proposals of the President who had previously vetoed this bill.

Recall that after November 2019, the powers of the HQCJ members were terminated as a result of the first attempt by Volodymyr Zelenskyy to carry out judicial reform. And although later the Constitutional Court recognized the new law adopted by the Rada as unconstitutional, the Commission still remained disbanded, and its previous decisions became invalid. Due to the absence of almost a third of judges, citizens have to wait for months, and sometimes even years, for their case to be considered.

The Page obtained an official answer from the HQCJ about the vacancies of judges.

znimok-ekrana-2021-07-16-o-151119.png

As can be seen from the document, it is possible to count 135 absent judges, and that clearly does not contribute to the cases' rapid considerations.

"On the Judiciary and the Status of Judges"

On June 29 this year, the Verkhovna Rada adopted in the second reading the bill No. 3711-д. It makes changes to the law "On the Judiciary and the Status of Judges" and legislation to resume the work of the High Qualification Commission of Judges of Ukraine.

The draft regulates the procedure for selecting members of the High Qualification Commission of Judges. More than 500 amendments to it were submitted. One of them also gives a decisive vote in the formation of the High Qualification Commission of Judges to independent international experts.

The innovation will make it possible to form the HQCJ and launch the process of selection, qualification assessment and appointment of judges. Now their deficit is about 2,000 specialists.

In addition, the document proposes to establish that the High Qualification Commission of Judges of Ukraine consists of 16 members, eight of whom are appointed from among judges or retired judges. It is also determined that the maximum number of judges of the Supreme Court cannot exceed 200.

A court in a smartphone

On June 1, 2021, the Verkhovna Rada in the second reading adopted bill No. 5246 called "a court in a smartphone"—on the establishing of an information and telecommunications system for pre-trial investigation. Now the State Court Administration of Ukraine (SCA) is completing the development of an electronic court mobile application e-Court.

In particular, the service e-Court is being adapted to work in smartphones and other mobile devices. In the first version of the program, the functionality is the same as in the Electronic Court web version. It will not be possible only to submit documents directly to the court.

The bill should become part of the project State in a Smartphone. It is planned that most of the bureaucratic procedures will go online, and this can speed up the judicial process.

What can be done in the application:

  • get information about new receipts of documents in court cases: court decisions, notices on the dates of court sessions, documents of other parties to the case;
  • find out up-to-date information about all court cases the user is a party in, with the opportunity to get acquainted with all documents in electronic form;
  • manage your commissions on providing access to your cases to others.

Conclusions

According to a survey by the Razumkov Sociological Center, Ukrainians have an extremely high level of mistrust in the judicial system as a whole (77.5%), the Supreme Court (69%), and local courts (67.5%).

Reform of the Ukrainian judicial system, together with reform of law enforcement agencies and guaranteed protection of private property, should be key factors in restoring confidence in the authorities. However, what will happen in practice and not on paper? How to fully eliminate the corruption component of the work of the courts and "telephone justice"—the dependence of the court on the authorities or certain officials?

Despite some positive aspects, those bills that are in their current form cannot comprehensively solve all the problems of the judicial system in Ukraine. First, they contain too many general wording instead of clear criteria for achieving reform.

Secondly, they contain some legal gaps and are contrary to the Constitution. In addition, bill No. 5067 (on amending the Code of Administrative Procedure regarding the jurisdiction of cases to the Supreme Court as a court of first instance) does not comprehensively solve the problem of the Kyiv District Administrative Court.

"Each change of power leads to the imposition of a new judicial reform, without completing the implementation of the previous one, and that expands for years, and in fact completely cancels all previous achievements. This is the main disadvantage of any judicial reform that we have seen today in Ukraine.

Maryna Lygina
Maryna Lygina
Attorney at "Anastasiia Gurska" Law Firm

"Each change of power leads to the imposition of a new judicial reform, without completing the implementation of the previous one, and that expands for years, and in fact completely cancels all previous achievements. This is the main disadvantage of any judicial reform that we have seen today in Ukraine.

Volodymyr Zelenskyy’s judicial reform, in my opinion, does not have a systematic multi-step approach and a single strategy. After all, judicial reform is a combination of legislative, institutional and personnel changes aimed at improving the judicial system of Ukraine. Today we see only targeted actions.

Among its disadvantages there is the reduction in the number of Supreme Court judges that will lead to a delay in the consideration of complaints, and the cut in wages will lead to inefficiency in their work. The new HQCJ will be formed exclusively from lawyers with at least 15 years of experience, that is, not from the "fresh faces", but from representatives of the old system."

Briefly from the advantages, the expert calls the formation of a new HQCJ with the involvement of international experts and borrowing international experience from them, the preservation of a certain independence by the HQCJ by approving its regulations, and checking future members of the HQCJ for virtue.

According to the DEJURE Foundation, in order to effectively reform the judicial system of Ukraine, the HCJ Qualification Commission should be rebooted with the decisive vote of independent international experts, the UASK should be liquidated and the Supreme Administrative Court should be established by analogy with the High Anti-Corruption Court. The current government included all this in its election promises.

In addition, the legal community believes that it is also important for the Verkhovna Rada to adopt normative legal acts in accordance with the Constitution of Ukraine, so that in a few years there is no reason to litigate them in the Constitutional Court. And preparing and drafting certain legal acts on judicial reform in the committees should be carried out not by deputies, but by practicing lawyers with extensive experience with the involvement of international experts and taking into account all the shortcomings of the judicial system.

It is also necessary to reform legal education: to raise the standards of training lawyers, introduce a unified qualification exam for legal professions, and adopt world standards in legal education. Plus, the authorities must solve the issue of financing the judiciary and thereby increase its independence.

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