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.