Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.
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CPLR prepared an alternative report on the independence of judges in Ukraine
On April 27, 2020, the High Council of Justice published its third Annual report on the Independence of Judges. The document consists of two parts – an overview of important events, activities and problems that have affected the state of the independence of judges, and an analysis of cases of interference with the activities of judges in the administration of justice. The CPLR experts have prepared an alternative report on this issue.
The main conclusions made by the CPLR experts are as follows:
1. Citizens and lawyers generally do not consider judges to be independent, while the vast majority of judges are convinced that judges are independent. The former see more threats to the independence of judges within the system, the latter see them the outside.
2. The gaps in the legislative regulation of the election/ appointment of the HCJ members and the political influence (by both Presidents Petro Poroshenko and Volodymyr Zelensky, and other forces) on relevant competitive procedures and decisions of the HCJ are detrimental to its independence, despite formal compliance of its composition with European standards.
3. In 2019, various forces and groups of influence sought to establish or maintain control over the activities of the High Qualification Commission of Judges (HQCJ). This indicated the need to radically restart this body with a change in approach to its formation. Unfortunately, the Law No. 193-IX was not properly implemented and therefore failed to achieve its objective.
4. In 2019, the Council of Judges of Ukraine was politically influenced by the administration of President Zelensky and representatives of his political party in Parliament.
5. The first legislative steps by the new authorities in the area of judicial reform were controversial. As a result, among the entire initiatives, only one was adopted on the termination of the authority of the HQCJ members.
6. In 2019, due to impunity, the practice of judicial raidership was resumed, affecting not only the business but also the public authorities.
7. Psychological pressure remains the most common form of intervention in the activities of judges. At the same time, judges tend to tolerate unlawful requests/demands from representatives of the judicial authorities or not to interpret them as interference. The HCJ’s response to judges’ reports was ineffective, as the measures taken were predominantly of a monitoring nature.
9. Unlawful use of mechanisms of bringing judges to legal liability is a significant threat to judicial independence.
10. Intervention in the system of automatic distribution of cases continues to take place, it is impossible without the participation of the court management and the judges themselves.
11. Practical insecurity of the trial judges and the impunity of the heads of the courts that interfere with the administration of justice have a serious “cooling effect” on potential trial judges.
12. Contrary to the law and despite the statements of the HCJ, the official report was prepared without discussion with the public. Moreover, it is one-sided and does not reveal many challenges to judicial independence.
Courts can be paralyzed after quarantine
Ukraine has introduced the quarantine from March 12 due to the coronavirus. Initially, the judicial governance authorities provided the courts with recommendations on their operation during the quarantine, the content of which could be summarized as a recommendation to minimize contacts between court employees and visitors. On April 2, the Law No. 540-IX came into force, which was supposed to adapt legal relations to quarantine conditions. Among other things, the Law provided for the automatic extension of time limits for applying to the court and procedural periods during the quarantine, as well as the possibility of conducting court proceedings through videoconferences using participants’ own equipment outside the court premises in civil, commercial and administrative cases.
One month has passed since the Law No. 540-IX came into force, allowing an interim assessment of its impact on the state of justice.
Quarantine restrictions have adversely affected the work of the judicial system, in particular, the number of cases considered has significantly decreased. Thus, for the period from March 12 to March 31, 2020, the average number of court decisions in administrative cases decreased by 23%, in civil cases – by 35% and in commercial cases – by 41%, in comparison with the same period of 2019.
After the entry into force of Law No. 540-IX, which was intended to provide for remote judicial review of cases during the quarantine, the dynamics of reducing the number of cases considered increased. To prove this, for the period from April 2 to May 2, 2020, the average number of decisions in administrative cases decreased by 27%, in civil cases – by 58% and in commercial cases – by 64%, as compared to the same period in 2019 (data obtained on the basis of the number of decisions published in the Unified State Register of Judicial Decisions for the relevant periods and does not represent official statistics).
CPLR experts are of the opinion that, among other things, this is due to the fact that the Law has partially “frozen” the administration of justice. Consideration of a case consists of several stages, and normally all actions are taken within a fixed period. Automatic extension of the procedural time limits for the quarantine period leads to the impossibility of moving to the next stage of the case consideration and, consequently, to the conclusion of the case.
This leads to an increase in the number of pending cases and, consequently, a burden on judges. By the time the quarantine is over, the “bundle” of pending cases may increase to such a scale that courts will not be able to deal with them promptly, which will adversely affect the duration of court proceedings and the effectiveness of the protection of violated rights.
In addition, the courts were unable to fully exploit the potential of the Law No. 540-IX on remote court proceedings. According to the Deputy Head of the State Judicial Administration of Ukraine S. Chornutsky, in April 2020, more than 200 videoconference sessions were held in accordance with this Law, which is a very low figure. For example, according to the data from the web portal “Judicial Power of Ukraine”, 17,068 meetings were scheduled just for one day – May 4, 2020.
Moreover, at least 21 courts reported the termination of videoconferences with other courts during the quarantine period, which was previously common practice. According to the State Enterprise “Information Judicial System”, the number of videoconferences with detention facilities and prison colonies has decreased more than two times since the beginning of the quarantine. This means that some courts not only refrain from implementing the Law No. 540-IX, but also abandon the pre-quarantine remote hearing practices.
Restrictions on access of visitors to the courts, as well as the online review of cases, have led to the violation of the constitutional principle of publicity of the court proceedings. Courts generally did not provide online broadcasts of hearings, which is mandatory for videoconferencing. For example, in April 2020, the Youtube channel “Judicial system of Ukraine”, which provides online broadcasting of court sessions, posted only three broadcasts of sessions in civil cases and one in a commercial case. At the request of CPLR experts, the courts provided the links to some more broadcasts, however in general it can be argued that in quarantine conditions, there is a widespread practice of the violation of the principle of publicity in the court process.
The above problems, both collectively and individually, adversely affect the effectiveness of the judicial system. Coming out of the quarantine can partially paralyze and overload the judicial system, which necessitates the search for optimal ways of its functioning in the post-quarantine period. The problem of “freezing” justice can be partially addressed by the draft law No 3383 introduced to the Parliament at the end of April, which proposes to abandon the concept of automatic extension of procedural time limits. However, this draft law also needs significant revision (see political points for 21-27 April 2020).
COVID is not a reason to abolish fines
On April 27, the Cabinet of Ministers of Ukraine submitted to the Verkhovna Rada of Ukraine the draft Law “On Amnesty of Convicts (regarding the prevention of the spread of acute respiratory disease COVID-19 caused by SARS-CoV-2 coronavirus)” (Registration No.3397).
The explanatory note states that the purpose of the Law is “to prevent the occurrence and spread of acute respiratory disease COVID-19 caused by SARS-CoV-2 coronavirus in penitentiary institutions”, “to reduce the number of persons serving sentences in these institutions” (as of April 1, there were 32,942 of them), “savings of budget funds spent on the maintenance of convicts”, as well as ensuring the possibility of creating appropriate conditions for serving sentences for persons who will continue to be in these institutions.
If the law is approved, approximately 3,009 persons will be released from serving sentences.
The draft law was prepared in accordance with Article 92 of the Constitution of Ukraine in order to demonstrate the humanism of the state in the area of execution of criminal punishments.
Obviously, the high purpose of humanism should not be denied. It is necessary to adopt this draft law as soon as possible. However, one should not forget that humanism has two sides. Thus, if we demonstrate humanism to the criminal, then we must demonstrate it to the victim, including the potential one, and each of us is a potential victim before we fully overcome the crime in the world.
In view of this, two penitentiary problems arising from the draft law № 3397 should be noted.
The first is the problem of non-compensation for damage caused by crime. Compensation and restitution to victims usually do not even cover the costs of burial, medicine and hospitalization, rehabilitation of physical and psychological injuries, not to mention property damage.
The European Court of Human Rights has repeatedly stressed, in particular in the context of Ukraine, that “the right to go to court would be illusory if the national legal system allowed a final, binding judgment to remain unenforced to the detriment of one of the parties.” According to official statistics, about 80% of appeals to the ECtHR concern the issue of non-compliance with the judgements of Ukrainian courts.
Despite the fact that back in 1977, the Committee of Ministers of the Council of Europe adopted Resolution (77)27 on the compensation to victims of crimes in which the states were recommended to establish a special Fund for compensation for victims of violent crimes, Ukraine has not been able to create such a Fund since its independence. Like victims, the state acting in the interests of taxpayers should at least be interested in recovering from the criminals the damage caused by the crime, as well as at least partially reimbursing the procedural and administrative costs associated with the operation of law enforcement authorities, prosecutors and courts, which put a heavy burden on the budget.
In the last three years alone, Ukrainian courts have issued sentences of about 60,000 fines worth hundreds of millions of hryvnias, as well as more than 3,000 sentences of confiscation of property and special confiscation. However, according to various sources, no more than 10-20% of these court decisions have been executed.
According to the analyzed draft law, the authorities are trying to release from punishment all convicts to fines, confiscation of property, as well as to correctional work and service restrictions for servicemen (which in fact is also a fine – “in installments”). But what is the relation to the SARS-CoV-2 coronavirus here?
According to the purpose of the law, it should apply only to persons sentenced to imprisonment, restriction of liberty, arrest and detention in a disciplinary battalion, i.e. to those types of punishment that may contribute to the spread of acute respiratory disease COVID-19 caused by coronavirus SARS-CoV-2. Demonstration of humanism towards all other convicts is a demonstration of anti-humanism towards victims and disregard for the interests of taxpayers, which trenches upon criminal negligence or even abuse of power.
The second problem is created by the provisions of Article 13 of the draft law No. 3397, which states: “This Law applies to persons who have committed crimes before the date of its entry into force.” (Such a phrase is usually found in all draft laws on amnesty).
Thus, the state actually promises to forgive everyone who has committed the following crimes from the day the text of the draft law was published (in this case – from April 29), and until the day the amnesty law comes into force:
- any intentional crime of small or medium gravity or negligent serious crime – if it is a person specified in Article 1;
- any crime, except for a particularly serious crime and certain war crimes – if it is a person specified in Article 2;
- any crime other than violence, if it is a person specified in Article 3;
- any crime other than those specified in Article 9, if it is a person specified in Articles 4, 5 and 6.
In order to prevent this draft law from turning into a call to impunity for criminal activity for a specified period, Article 13 should read as follows: “The effect of this Law shall extend to persons who committed crimes before the day of the official registration of this draft law in the Verkhovna Rada of Ukraine.”