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Weekly analytics for 10 – 16 November 2020

16.11.2020

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. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua

Reform of the judiciary and judicial governance authorities was identified as one of the vectors of economic development of Ukraine until 2030 – the position of the Government

Event

On November 6, the Prime Minister publicly presented the Economic Audit of the country and the Vectors of Economic Development until 2030. The Audit demonstrated that the total effect of the realization of Ukraine’s potential could reach more than 1 trillion US dollars for the next 10 years. To achieve this effect, a vision for the development of the Ukrainian economy was proposed – “Vectors of Economic Development 2030”, one of which is the rule of law.

Within this vector, key problems in the field of justice were identified and priority steps for overcoming them as well as indicators of their implementation were proposed.

Current barriers in the field of justice include: low level of trust in the judiciary; absence of the formed High Qualification Commission of Judges (HQCJ); the presence of dishonest judges and members of the High Council of Justice (HCJ); lack of judges, overburdening of courts, delays in the consideration of cases, in the absence of guarantees that the courts will comply with these deadlines; underdeveloped electronic services and alternative methods of dispute resolution; lack of established case law; low integrity of the judicial staff; improper execution of court decisions; low level of professional training of lawyers.

The proposed ways to overcome these obstacles include, in particular:

  •  holding an open competition for HQCJ with the decisive participation of international experts and members of the public (Public Council of Integrity); establish an Ethics Commission to verify the integrity of HCJ members with the participation of judges, international experts and PCI. Recruitment of new HCJ members should be carried out on a competitive basis with the decisive participation of international experts and the public; establish clear integrity requirements for judges;
  •  partially transfer the jurisdiction of the District Administrative Court in Kyiv to the Supreme Court;
  •  fully launch electronic litigation, simplify court procedures, introduce the extraterritorial principle of consideration of cases.
  •  establish the consequences of non-compliance by courts with the terms of consideration of cases;
  •  automate document flow, determine the maximum workload per judge;
  •  stipulate standards of court decisions in procedural codes; to introduce a course of legal writing in higher education institutions; to introduce the institute of pre-judicial request;
  •  introduce the institute of justices of the peace; full-fledged launch of the jury trial;
  •  improve the system of alternative dispute resolution (arbitration courts, mediation, arbitration); consider the feasibility of introducing a mixed court for business in the system of commercial courts;
  •  ensure the development of an effective system of execution of court decisions; provide judges with access to state registers;
  •  adopt amendments to the legislation and the Constitution for the effective operation of the Kyiv City International Financial Center with its own international arbitration and a separate court;
  •  approve and implement the Reform Strategy of the Judiciary, Litigation and Related Legal Institutions for 2021-2025.

Within the framework of a radical change in functioning, it is proposed to: introduce a random distribution of cases for judicial boards with judges from different regions; to expand the powers of the PCI in terms of checking the integrity of candidates to the courts of first instance, as well as the possibility of initiating disciplinary proceedings against judges; launch an artificial intelligence system for the preparation of draft court decisions; update the electronic register of court decisions and expand the number of court services provided electronically.

In addition, it is proposed to depoliticize the procedure of competitive selection of judges of the Constitutional Court of Ukraine, which should be carried out by an independent selection commission (one selection commission for three appointing entities).

CPLR assessment

According to the Fifth Annual Survey of foreign investors conducted jointly by EBA, Dragon Capital and the Center for Economic Strategy, for the first time in five years of surveys, the distrust in the judiciary topped the anti-rating of obstacles to foreign investments. At the same time, in previous years, distrust in the courts was an obstacle No. 2 for foreign investors.

That is, the significance of the impact of the quality of the judicial system on economic development is obvious.

CPLR experts support the proposed measures in the field of justice. The directions of change are chosen correctly, although some of the proposed measures do not have a sufficient level of specification (for example, a proposal to ensure the effective functioning of the institute of jury trial or to build an effective system of the execution of court decisions), or may be subject to discussion (for example, transfer of the part of jurisdiction to the District Administrative Court in Kyiv to the Supreme Court, which may lead to the overload of the latter, instead of creating a separate court, which has jurisdiction to consider disputes with the participation of all state bodies at the national level).

At the same time, the authors of the concept rightly believe that the reform of the judiciary should begin with the HCJ and HQCJ as bodies that should ensure the integrity and accountability of judges.

The proposed ways of addressing the problems of justice correspond to the commitments made by Ukraine to the International Monetary Fund and the European Union (see more details in the weekly analyzes of June 8-15, July 20-27, August 25 – September 1, September 15-21), and agreed with the draft Anti-Corruption Strategy for 2020-2024, which was submitted to Parliament by the Government (see more details in the weekly analyzes of June 22-30, September 8-14).

CPLR experts analyzed new draft laws to overcome the consequences of the decision of the Constitutional Court on anti-corruption legislation

Event

Within three weeks after the Constitutional Court passed the dubious decision No. 13-r/2020, which nullified the state’s measures to combat corruption, parliamentarians continue to make proposals to overcome the crisis caused by the Constitutional Court. Last week, we have already analyzed the draft laws, which were provoked by this decision of the Constitutional Court. The texts of draft laws No. 4339 and 4343, which had not been published before, appeared this week. In addition, the new 25th draft law No. 2339-1 was registered in the parliament.

It should be reminded that the decision of the Constitutional Court declared unconstitutional a significant part of the NAPC’s powers over financial control, lifestyle monitoring, as well as an article of the Criminal Code establishing liability for knowingly incorrect declaration (see detailed analysis of this decision: Ukrainian., English).

CPLR assessment

CPLR experts are of the opinion that the draft laws 4339 and 4343 propose ineffective solutions, although the first one is moving in the right direction. Instead, the draft law No. 2339-1 proposes a legally correct renewal of the provisions of the Law on Prevention of Corruption and therefore needs support.

Thus, the authors of the draft law No. 4339 propose to involve members of the Public Council of International Experts (PCIE), established in accordance with the Law on the High Anti-Corruption Court, in interviews with candidates for judges of the Constitutional Court. According to the authors of the draft law, the members of PCIE should provide opinions on the integrity of the candidates, which should be attached to the recommendations for the appointing entities.

CPLR supports the involvement of international organizations in the future competitive selection of judges of the Constitutional Court, but the effectiveness of the proposed model seems questionable. Indeed, the PCIE was created for other purposes – to verify the integrity and professional competence of candidates for the position of a judge of the High Anti-Corruption Court. It is unclear whether the persons elected to the PCIE will agree to perform the new functions. In addition, the problem is that the subjects of appointment (election) of judges of the Constitutional Court will be able to ignore the opinion of the members of PCIE, which further calls into question the effectiveness of such a procedure.

Draft law No. 4343 proposes to remove certain entities (judges, judges of the Constitutional Court, officials of the High Council of Justice (HCJ), the High Qualification Commission of Judges, the State Judicial Administration) from the jurisdiction of the National Agency for Prevention of Corruption (NAPC); transfer the relevant control functions to the HCJ, as well as change the procedure for electing the NAPC chairman and include representatives of judges in the competition commission for the election of the NAPC chairman.

The CPLR considers this proposal unacceptable, as the HCJ, as a collegial body with a large number of tasks, cannot be an effective body for solving these tasks as well. Creating a parallel declaration system for judges would be an unjustified waste of public resources. In addition, it is unreasonable and illogical to involve representatives of judges in the election of the NAPC chairman in conditions when, according to the authors of the draft law, this body loses the power of financial control over judges.

Draft law No. 2339-1 proposes to supplement the Law on Prevention of Corruption with new provisions similar to those that have expired, to instruct the Cabinet of Ministers within a month to prepare a draft law on the peculiarities of control and verification of declarations, monitoring the lifestyle of judges, judges of the Constitutional Court of Ukraine and also to establish that until the definition of such peculiarities such measures shall be carried out in accordance with the Law of Ukraine On Prevention of Corruption. According to CPLR experts, such an approach can be taken as a basis, although it is advisable to regulate all features by one law (for example, to provide that the NAPC should determine the specifics of relevant procedures for judges and judges of the Constitutional Court after consultation with the Council of Judges of Ukraine and the Constitutional Court of Ukraine).

We would like to remind that the CPLR experts are of the opinion that the problems caused by the recognition of the provisions of the Law On Prevention of Corruption and Article 366-1 of the Criminal Code as unconstitutional need a comprehensive solution. Necessary steps:

  1.  to supplement the Law On Prevention of Corruption with new provisions that would restore all mechanisms that were lost with the decision of the Constitutional Court, providing that the NAPC must approve the peculiarities of the procedure for implementing these mechanisms with regard to judges and judges of the Constitutional Court with mandatory consultations with the Council of Judges of Ukraine and the Constitutional Court. Following the reform of the HCJ and the HQCJ, some oversight powers over judges may be given to inspectors of these bodies;
  2.  to establish administrative liability for knowingly incorrect declaration, but for the commission of these acts under certain aggravating circumstances, criminal liability may be established as a criminal offense;
  3.  to introduce a competitive procedure for the selection of future judges of the Constitutional Court by an independent commission, which shall be formed of specialists delegated by the meeting of judges of the Constitutional Court (first composition) in resignation and international organizations;
  4.  to increase the quorum for the consideration of cases and the adoption of decisions of the Constitutional Court by the Grand Chamber and to provide for the senates the obligation to refer the case to the Grand Chamber if they are inclined to declare a provision unconstitutional.