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Draft Concept of Judicial Reform, which was submitted to the Parliament, has serious procedural and substantive defects
On May 21, S. Demchenko, a people’s deputy from the Servant of the People party, submitted to the Parliament a draft resolution on the approval of the Concept of Priority Measures for Further Implementation of Judicial Reform in Ukraine (hereinafter – the Concept). As stated in the text, the Concept should establish a clear and systematic vision of the strategy for reforming the judicial system on a conceptually updated legal basis, and its provisions: “to become the basis for the development and adoption of relevant legislation.”
The author of the Concept proposes to further reform the judicial system in the following ways:
1. bring the provisions of the legislation on the judiciary in line with the Constitution, taking into account the decisions of the Constitutional Court of Ukraine;
2. complete the process of reforming the Supreme Court: judges of the Supreme Court of Ukraine should continue to exercise their powers as judges of the Supreme Court; to resolve the issue of taking registration actions necessary for the functioning of the Supreme Court as the renamed Supreme Court of Ukraine, and not as a new legal entity; provide for the legislative impossibility of reducing the number of members of the Supreme Court consisting of 200 judges; upgrade its organizational structure (Grand Chamber and 4 judicial chambers in separate jurisdictions); to improve certain aspects of the court’s operation;
3. complete the process of establishing higher specialized courts: the Supreme Court should become a court of appeal for decisions made by such courts of first instance (another option is to include a “court of first instance” and a “court of appeal” in the structure of higher specialized courts); to repeal the legislative provision on the establishment of an appellate chamber in such courts; adopt a law on the establishment of the High Specialized Court on Intellectual Property and determine the type of proceedings in which the court will hear cases;
4. simplify judicial governance: to liquidate the High Qualifications Commission of Judges of Ukraine (hereinafter – the HQCJ) (or significantly reduce its powers) and transfer its powers to the High Council of Justice (hereinafter – the HCJ); to delegate the HCJ the functions of selecting members of the HQCJ and monitoring their behavior, as well as members of the HCJ and to abandon the institution of the Commission on Integrity and Ethics; to transfer to the HCJ certain powers of the State Judicial Administration and the HQCJ (determination of the number of judges and staff in courts and chambers, qualification assessment of “five-year” judges, whose term of office has expired); to “digitalize” the procedures of judicial self-government – online discussion and voting of all judges on issues within the competence of the Congress of Judges;
5. broaden access to justice: to create elected magistrates’ courts to hear small civil and administrative cases; to introduce electronic litigation; to expand the right of citizens to appeal;
6. ensure and expand the guarantees of the independence of judges: to abolish the possibility of dismissal of a judge due to failure to pass the qualifying examination; to bring the norms of the legislation on the disciplinary liability of judges into line with the Constitution and the decisions of the Constitutional Court; to make it impossible for the legislative authority to reduce the amount of judges’ remuneration;
7. liquidate the State Judicial Administration by distributing its functions between the HCJ and the courts.
1. Development of a conceptual vision of the strategy of further judicial reform is really necessary as it would allow various actors to implement agreed and coordinated measures for its implementation.
At the same time, from the point of view of the Constitution and the Rules of Procedure of the Verkhovna Rada, the power of the Parliament to approve any concepts by its own resolutions is doubtful, as the principles of domestic and foreign policy are determined by law. Moreover, as defined in the Basic Law, the formation, reorganization and liquidation of courts is carried out exclusively by law, the draft of which must be submitted by the President, and therefore the Parliament should not provide in its resolution for legislative changes, the initiation of which does not depend on it.
The draft Concept is narrowed down to “priority measures”, most of which depend on the will of the legislator. Accordingly, there is no sense in such a document, because its ideas can be implemented through the initiation of a package of necessary draft laws.
2. If we consider the Concept as an indication of the direction of future judicial reform, some of its proposed measures are either already embodied in legislation (for example, e-litigation, the establishment of the High Court on Intellectual Property), or not specified in the Concept itself (for example, the statement on bringing the provisions of the legislation on the judiciary into line with the Constitution, taking into account the decisions of the Constitutional Court, does not provide for specific measures for its implementation), or is not subject of legislative regulation (technical aspects of electronic litigation), which does not meet the objectives of such a program document. However, some proposals are reasonable, including the creation of magistrate’s courts and the digitalization of judicial self-government.
3. Despite the title, the measures proposed in the Concept cannot be called priority, given that they do not solve the current problems that exist in the judicial system (lack of independence and integrity of the judicial authorities, staff shortages, complete cessation of qualification assessment, underfunding of courts, impossibility to form the HQCJ, renewal of the HCJ composition, etc.).
4. A number of proposals in the Concept concern the expansion of the powers of the HCJ. On May 13, the NGOs that have long been involved in judicial reform called on the President and Parliament to bring the new quality to the HCJ, which is “a major obstacle to the clean-up and renewal of the courts”, since real judicial reform would be impossible without this. However, the Concept does not provide for the renewal of the Council composition. Similarly, there are no mechanisms for reorganizing the work in conditions where the HCJ is overloaded with current tasks, and consequently does not demonstrate proper efficiency. That is, giving additional powers to the current HCJ will further exacerbate the negative trends in the judiciary.
Therefore, the draft resolution on the approval of the Concept should be rejected for both procedural and substantive reasons.
It should be reminded that on July 12, 2019, the CPLR published the Concept of Judicial Reform, which consists of five priority measures with clear indicators of implementation, and in May 2020, a number of NGOs proposed a Judicial Reform Map to implement key changes.
Ukraine-NATO program for 2020 approved by the President needs significant revision in terms of judicial reform
On May 26, the President approved the Annual National Program under the auspices of the Ukraine-NATO Commission for 2020 (hereinafter referred to as the Program). As stated in the Program, this is a systemic document describing reforms to implement the strategic course of full membership in the North Atlantic Treaty Organization. Among other things, the Program provides for judicial reform. The declared goal of judicial reform is an independent, efficient, accessible and accountable judicial system, which is trusted by the society.
In order to achieve the declared goal, four expected results have been identified to be implemented by the end of 2025, in particular:
1. Judicial cases shall be considered within a reasonable time, on the principle of publicity and openness of the judicial process and with the use of modern technical means.
Priority tasks to achieve:
1.1. Introduction of the Unified Judicial Information and Telecommunication System (by 2025);
1.2. Introduction of mediation as an out-of-court procedure for resolving conflicts (disputes) (by 2025);
1.3. Ensuring the full operation of the Judicial Protection Service (by 2022);
1.4. Establishing criteria for admitting cases to the Supreme Court (by 2025).
Assessment: the list of tasks does not include addressing of the problem of staff shortage in the judicial system, which is the main reason for the violation of reasonable time limits for consideration of cases. Debureaucratization and simplification of court procedures can have a positive impact on meeting deadlines envisaged for the consideration of cases.
2. Judicial staff has been renewed and new mechanisms have been introduced to encourage the fair conduct of judges. Result to be achieved by implementing the following priority tasks:
2.1. Launch of district courts (by 2020);
2.2. Full-fledged activity of the High Anti-Corruption Court (by 2020);
2.3. Full-fledged activity of the Judicial Protection Service (by 2022);
2.4. Sufficient financial support for judges and court activities (by 2025);
2.5. Citizens’ access to information on gender statistics in the staff composition of appellate and local courts of Ukraine, the State Judicial Administration of Ukraine and its territorial offices (by 2025).
Assessment: none of the above tasks contributes to achieving the declared result (the impact of paragraph 2.5 is not clear at all, as these data are already known). Moreover, the deadline for lauhching the district courts (paragraph 2.5) is generally unrealistic, as the High Qualifications Commission of Judges, which plays an important role in transferring judges to the newly established courts, does not function, and the transfer procedure itself is lengthy and is supposed to be competitive. In order to renew the judicial staff and encourage the fair conduct of judges, it is first necessary to reform the judicial self-governance bodies (High Qualifications Commission of Judges, High Council of Justice), which are responsible for selecting, assessing the integrity of judges and bringing them to disciplinary responsibility.
3. Justice in Ukraine is accessible to every citizen, which is achieved through the constant communication of courts with civil society.
Assessment: implementation of this task will have little impact on improving access to justice. Citizens will only go to court if they can afford it, understand the rules of judicial procedure and are confident that the court will effectively protect their rights. In other words, the priority tasks for improving the accessibility of justice are to review the rates of court fees, simplify the judicial process and improve the institution of execution of court decisions.
4. Sufficient level of public confidence in the judiciary. Priority tasks to achieve:
4.1. Organization of receiving constant feedback from participants in the court process (by 2025);
4.2. Taking into account the share of revoked decisions during the qualification assessment of judges (permanently);
4.3. Informing the public about bringing judges to disciplinary responsibility (permanently);
4.4. Introduction of effective mechanisms for the execution of court decisions (by 2025).
CPLR assessment: the proposed tasks will have a little impact on the level of public confidence in the courts. For example, informing about the disciplinary responsibility of judges will not have a positive effect if the mechanism of such prosecution does not ensure the inevitability of punishment within the minimum period of time. In addition, it should be noted that the task set out in paragraph 4.2 could undermine the independence of judges in general, as the proportion of revocations does not in itself indicate that a judge is dishonest in the performance of his or her duties. Revocation of a decision can have various reasons, and it is these reasons that matter, not their number.
Moreover, according to the sociological research conducted in June 2019, most respondents are of the opinion that the most positive impact on the level of trust in the court may be the prosecution of corrupt judges and the cleanup of the judicial staff from dishonest judges. More than a third of respondents also indicated the immediate response of the respective authorities to the disciplinary misconduct of judges and the overcoming of mutual guarantee among such factors. None of these factors is provided in the above tasks.
In addition, it should be noted that none of the Program results and tasks set to achieve them provide for measures to establish the independence of the judiciary, release it from political influence and ensure its accountability (as declared in the goal of judicial reform).
Speaking about the Program, Deputy Prime Minister for European and Euro-Atlantic Integration V. Prystaiko said: “Why is this document so important? Because this is our compass, which points the way to NATO membership. And the speed of movement is determined by the effectiveness of Ukraine’s implementation of key reforms, especially the fight against corruption, restarting the work of the courts, etc.” As stated by the CPLR expert R. Kuybida:“In terms of judicial reform in the Program, a magnet has been placed under this compass.”
In view of the above, the measures proposed in the Program do not correspond to the declared goal and objectives of judicial reform, the realities and needs of the judiciary, and therefore the content of the Program does not indicate readiness to take measures to fully reform the judicial system.
Responding to whistle-blower notifications: effectiveness of the mechanism is still highly questionable
Despite the fact that only on October 17, 2019, the Law “On Amendments to the Law of Ukraine On Prevention of Corruption concerning the Whistle-blowers of Corruption” was adopted, the Verkhovna Rada registered another draft law (Reg. No. 3450) “On Amendments to Certain Legislative Acts of Ukraine on Regulation of Certain Issues of Whistle-blowers’ Protection”, which radically change the provisions of the Law on responding to whistle-blowers’ notifications and their protection.
Some provisions of the draft law can be agreed, but the rest can nullify all the positive developments. In particular, the draft law:
- stipulates that in case it is established that the notification of possible facts of corruption or corruption-related offenses does not belong to the competence of the body or legal entity which received it, further consideration of such notification shall be terminated. This contradicts the requirements of the Law “On Citizens’ Appeals”, which stipulates that in case of receipt of an appeal on issues that are not within the competence of the body or legal entity, such an appeal shall be forwarded as appropriate within five days. In cases of criminal and administrative offenses, this can lead to the fact that due to untimely response to information, important evidence will be lost, and the guilty person will avoid punishment (penalty);
- proposes to define that “when a person uses external channels to report possible facts of corruption or corruption-related offenses, other violations of this Law, entering information into the Unified Portal of Whistle-blower Reports is carried out … by an authorized person of the entity responsible for consideration or investigation of the facts set forth in the notification”. Therefore, it is unclear who should consider the fact stated in a notification addressed to the media, journalist, public association, trade union, political party, etc. or several media, journalists, public associations, trade unions, political parties, etc., if the fact concerns a violation of the Law “On Prevention of Corruption”. Probably, in such cases, only specially authorized entities in the area of anti-corruption should respond to a certain fact;
- determines inexecutable requirements for notifications of possible violations of the Law “On Prevention of Corruption” and the procedure for their consideration. In particular, the notification is subject to consideration if: a) the information provided in it relates to a specific person; b) this information contains factual data confirming the possible commission of a corruption or corruption-related offense, other violations of the Law; c) these facts can be verified. Absence of any of these three requirements or their vague indication shall be grounds for declaring the notification irrelevant. For example, it is difficult to unambiguously define what is meant by “a specific person” (whether it is necessary to indicate his/her last name, first name and patronymic or a position would be sufficient), or what is and is not a violation of the Law “On Prevention of Corruption”, or whether factual data can be verified and, if so, whether the methods of this verification are important (administrative, forensic, covert, public, etc.);
- proposes a complex and inefficient procedure for verification of the notification of the whistle-blower. Any relevant notification made through external or internal channels: a) shall be subject to prior consideration by an authorized person within 10 days; b) may in fact be ignored on the grounds that it does not belong to the competence of the body or legal entity; c) if the information contained therein is confirmed, it shall be investigated with disciplinary proceedings within 30 days, and in some cases within 45 days; d) if during the preliminary examination signs of a corruption criminal offense or an administrative offense related to corruption are revealed, the materials of the proceedings shall be transferred to the relevant specially authorized entity in the field of anti-corruption or the SBI. Thus, after a preliminary consideration, in 10 days, and possibly even after the completion of disciplinary proceedings, in 40-55 days or more, the presence of a criminal corruption offense or an administrative offense related to corruption may be established. By this time, evidence of a crime or administrative offence may have been lost.
Therefore, it is necessary to provide for such a procedure for dealing with notifications on the Unified Portal, which would allow to check notifications in disciplinary proceedings, and at the same time, if there are appropriate grounds, to carry out the procedures provided by the Criminal Procedure Code of Ukraine and the Code of Administrative Offenses of Ukraine. It is also necessary to reduce the period of preliminary consideration by the authorized person of notifications received through external communication channels from 10 days to 24 hours in order to ensure prompt response to information about offenses.