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12 july 2019

Concept note on implementation of judicial reform

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The judicial reform introduced by amendments to the Constitution in 2016 has failed to achieve the expected outcome. Despite favorable legislative framework, the society’s demand for cleansing and renewal of judicial ranks has remained without adequate answer.

Personnel policy has suffered failure. Those judicial self-governance bodies responsible for its implementation – the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ) – have failed to become agents of change, instead merely preserving the existing system of influences and tolerating of dishonest behavior. The introduction of qualification examination has stimulated about a third of judges to seek voluntary resignation, but proved inefficient, with only 16 judges (less than 1%) removed following the attestation of more than half of judicial ranks. Numerous negative opinions regarding judges by the Public Integrity Council are summarily rejected by the High Qualification Commission of Judges. The new Supreme Court was similarly constituted with disregard of many of the opinions concerning candidates’ lack of integrity.

Access to justice has deteriorated as a result of unfilled vacancies in courts, increased court fees, and greater complexity of judicial procedures. Level of confidence in courts, despite a minor increase, remains low.

At the same time, the establishment of the High Anti-Corruption Court, whose composition was constituted with genuine engagement and influence of international experts who forced the HQCJ to demand that candidates meet high integrity standards, was a significant accomplishment.

The objectives of subsequent changes should include strengthening accountability of the judicial self-governance bodies to the society, as well as improving the access to justice.

This concept note addresses five priority measures with clear indicators. The achievement of these indicators would require amending the legislation (Laws of Ukraine “On Judiciary and Status of Judges”, “On the High Council of Justice”, “On Court Fees”, and procedural codes) in line with the current Constitution. This concept note could become a goalpost for the new Parliament’s legislative work in the area of justice reform.

1. Reorganize judicial selection and discipline bodies by changing approaches to their composition:

  1. the new Qualification Commission of Judges is charged with conducting evaluations of judges, competitions for judicial positions, and monitoring the compliance with judicial duties; the Qualification Commission includes separate panels for conducting these various procedures;
  2. half of the members of the Qualification Commission of Judges are selected by civil society organizations that meet high requirements (proven experience of the organization, mandatory financial audit, recommendation from an international organization); the remaining half are elected directly by judges via an e-voting system;
  3. the same model is used for constituting the disciplinary commissions of judges under the High Council of Justice; the number of the commissions must be such that is capable of ensuring timely review of complaints against judges;
  4. integrity and reputation of candidates for members of the Qualification and the disciplinary commissions of judges, the HCJ, as well as of the sitting HCJ members is vetted by the Public Council of International Experts (PCIE). A negative opinion by the PCIE is grounds for automatic termination of authority of a sitting HCJ member. PCIE also carries out a review of compliance with requirements set forth by law of civil society organizations that nominate candidates and intend to participate in constituting the HQCJ;
  5. lists of reserve members are to be approved concurrently with the establishment of the Qualification and the disciplinary commissions of judges, to enable speedy appointment of new commission members in the event of withdrawal of any sitting members or, if needed, the establishment of additional panels;
  6. all disputes concerning the constitution of the Qualification and the disciplinary commissions of judges, as well as of the HCJ are to be resolved by the Supreme Court under expedited terms;
  7. the remuneration level of the HCJ members and of the qualification and disciplinary bodies is reduced to be commensurate with real level of effort and capacity of the state.

2. Introduce monitoring of compliance with judicial duties as an added mechanism for ensuring accountability of judges:

  1. monitoring of compliance with judicial duties is carried out by the Qualification Commission of Judges with the view towards providing recommendations to judges concerning the improvement of their activity and conduct;
  2. monitoring is carried out on the basis of information obtained from individuals and legal entities, as well as from mass media and other open sources containing the data on non-compliance with judicial duties;
  3. establishment of gross or systematic disregard of his/her duties by a judge in a way that is incompatible with the status of a judge or has exposed a judge’s non-compliance with the office, as well as violation of a duty to verify legality of a source of origin of an asset are grounds for a judge’s removal from office. Indecent behavior by a retired judge that has damaged the authority of justice could be grounds for termination of the status as retired judge;
  4. the exercise of audit and monitoring functions by specially authorized entities in the area of anti-corruption does not contradict the possibility of carrying out the monitoring of compliance with judicial duties by the Qualification Commission of Judges. The fact of conducting or terminating a disciplinary, administrative, or criminal proceeding against a judge or the existence of a decision concerning a judge issued by a government body (except the Supreme Court, to which the Commission’s decisions can be appealed) do not impact the Qualification Commission’s authority with respect to said monitoring.

3. Improve procedures for qualification evaluation and initiate review of selected decisions issued by the HQCJ’s previous composition

  1. decisions of the Qualification Commission of Judges concerning judicial evaluations and judges’ personnel files are to be published in open data format and promptly updated;
  2. practical assignments completed by judges are scored by experts engaged for this purpose (e.g., recognized scholars, authoritative judges); the Qualification Commission reviews these scores only in the event of significant disparity among them;
  3. practical assignments and all scores received from each expert and Commission member are open data;
  4. Qualification Commission’s decisions concerning evaluations are to be justified not merely based on the scores, but also based on an evaluation following the principle of reasonable doubts as to the facts of lack of integrity in the judges’ conduct, if such facts were exposed;
  5. in the event of information about the lack of integrity by a judge, decisions concerning a judge’s compliance with the judicial office that were issued by the previous HQCJ are to be reviewed under the following grounds: presence of a negative opinion by the Public Integrity Council or of a dissenting opinion by the Commission’s member; or evaluation carried out without participation by the Public Council.

4. Improve access to justice, introduce full-fledged jury trials, and introduce review of arbitrary conviction verdicts:  

  1. court fee rates are reduced for certain categories of cases where fees pose a significant obstacle for access to court;
  2. e-justice ensures review of certain categories of cases online, regardless of the parties’ or the court’s location, which also facilitates equitable distribution of cases among courts and judges;
  3. where this does not diminish safeguards for judicial protection, court procedures are made less formalized, clearer, and more simplified;
  4. the right to a jury trial is ensured through the introduction of a jury that decides on the question of a person’s guilt;
  5. individuals arbitrarily convicted to life or other lengthy imprisonment terms are provided with a legislatively defined mechanism for review of their verdicts on the basis of established criteria, including mandatory use of a lie detector.

5. Create an Anti-Corruption Chamber of the Supreme Court

  1. Anti-Corruption Chamber of the Supreme Court serves as a court of cassation instance for the High Anti-Corruption Court;
  2. selection of judges to the Anti-Corruption Chamber is carried out following the same rules as applicable to the selection of High Anti-Corruption Court judges, with involvement of the Public Council of International Experts;
  3. Anti-Corruption Chamber of the Supreme Court is provided with separate material, technical, and financial support.