Judicial Reform: Cognitive Dissonance with a Hope for Advancement

Thursday, June 2, 2016, could be called the most productive day in the work of the Verkhovna Rada’s current convocation.

This is based not on the number of adopted decisions, but on the scale of changes associated with the adopted laws and on the level of their support among Parliament members. Parliament had launched the long-awaited judicial reform, by amending the Constitution and adopting a new version of the law on the judiciary, as well as new laws relating to the enforcement of judgments.

One could pin high hopes on these changes, but the manner of adoption of some of them is in line with a despicable rule of Ukrainian politics: the goal justifies the means. Contrary to Parliament’s Rules of Procedure, the massive Law on the Judiciary was adopted as the working foundation, which was immediately followed by adoption in full, with corrections introduced verbally by the chair of Parliament’s specialized committee. Amendments to the Constitution became possible only due to the votes by the Opposition Block and other Parliament members formerly affiliated with the Party of Regions, who until then acted as the proposed amendments’ most vocal critics. One can only guess as to the ultimate price of these votes. Perhaps, the “accounts ledger” of the Party of Regions’ black cash had some influence; a few days earlier, excerpts from the ledger were published in mass media, while the original was forwarded to the National Anti-Corruption Bureau.

Yet, despite all of this, there is an outcome – i.e., the adopted laws. These laws could be effective. Which is unlike prior legislative decisions adopted over the last two years, which did nothing to add to the trust in fairness of the Ukrainian judiciary.

Prior “treatment’s” unsuccessful strategy

From the outset, Parliament based its efforts on the premise that judges were a victim of the Yanukovych regime and hostages to be influenced over via the court presidents, the High Qualification Commission of Judges (HQCJ), and the High Council of Justice (HCJ). Thus, the Law “On Restoring Trust in the Judiciary” that was adopted in April 2014 gave the judges an opportunity to correct the situation. Yet, the judges, in most instances, chose to keep in office the same court president and resorted to court judgments to stall the appointment of new members to the HQCJ and the HCJ for a very long time. Not having these bodies in place meant not having the responsibility for judges.

Next, Parliament adopted the Law “On Ensuring the Right to a Fair Trial” (February 2015), which introduced a qualification evaluation (re-attestation) for all judges. The Council of Judges did not act on issuing the methodology for carrying out such an evaluation until after expiration of the law’s term for carrying out the evaluations for judges of the Supreme and the high courts. The HQCJ was able to launch the evaluations for lower court judges only this year. At the same time, due to the lack of constitutional grounds for removal of judges who failed the evaluations, they were referred to the School of Judges.

Some of the situations were outright comic: Cannot explain the origins of the car fleet? Just go study at the School of Judges! The government keeps paying the salary, while the justice is not being administered. What is this if not a resort vacation! And do not fear a removal, because the Constitution, which sets forth an exhaustive list of grounds for judicial removals, does not provide for this particular ground.

As for the judges who issued arbitrary decisions during the 2013-2014 events, only a small number of them were recommended for removal. But even those who were removed were able to keep their positions easily, thanks to the High Administrative Court’s decisions.

In the course of two years, the judiciary failed to send a single positive signal to the society that changes may be underway. The judiciary did not express any desire to admit its complicity in the usurpation of power by Yanukovych. To the contrary, it demonstrated mutual cover-up and the absence of agents of change within judicial self-governance. With a few isolated exceptions, no judges (out of those who were honest in their work) emerged who could have put up a strong alternative to the active part of the judiciary that resists any positive changes.

According to sociological surveys’ results, courts, along with prosecutor’s offices, trail far behind any other governmental institutions, with the trust levels being the lowest in Europe (in the range of 5-10%). Even the President, Government, and Parliament enjoy higher public trust. Meanwhile, in other European countries, similar rankings typically place the courts far ahead of the political authorities.

The society’s demand for radical changes aimed at breaking up the corrupt system has only grown stronger. In the opinion of the public, the experts, the investors, and the international organizations, judicial reform, along with anti-corruption reform, has become the most in-demand.

Only time will tell whether or not their expectations will come true. At the same time, identifying the constitutional and legislative changes that give a chance for advancement is possible even now.

Changes that could succeed

Unlike the unsuccessful reform of the prosecution, changes in the judicial system will begin from the top-down rather than from the bottom-up. A new, unified Supreme Court will be created in place of the existing four cassation courts, with competitive selection of new judges and the possibility of appointing to judicial positions lawyers from outside of the system. Current sitting judges of these courts will be able to either resign from office or apply for the competition. Until now, higher level courts were made up only of judges with certain length of tenure. A significant portion of those are embodiments of the negative informal practices. Thus, the system was continuously replicating itself.

It will be possible to obtain a final judgment in a case faster, as the existing four-tier system (local courts, appellate courts, high specialized courts, Supreme Court) is replaced by a three-tier one (local courts, appellate courts, Supreme Court).

The office of a judge will become more attractive: in order to bring in the best lawyers from outside of the justice system, a significant increase in judicial salaries is envisioned. As for the existing judges, their salaries will only be increased upon successful passage of a qualification evaluation.

Judges who “flunk” the qualification evaluation on competence, integrity, and compliance with the ethics rules will be dismissed from office immediately, rather than being sent to the school of judges. The same is also true of judges unable to prove the legal origin of their wealth. Currently, this is not a ground for judicial removal. Instances of removals of judges convicted of corruption (despite the prevalence of this phenomenon) are few and far between.

The public will be able to get involved in the evaluation and the competitions procedures not only as observers, but also through a new institution – the public integrity council. It will be constituted by specialized civil society organizations and made up of lawyers and investigative journalists. This council will collect the information on judges’ integrity and conduct and will submit its findings to the HQCJ, which will then be included in a judge’s open (Internet-based) personnel file and will be subject to review by the HQCJ. At present, judges’ personnel files are compiled exclusively by the government bodies, and only the HQCJ has access to their contents.

Judges will be required to report of all their family members who work for the judiciary, the bar, and the prosecution, or hold high-level offices. They will be subject to disciplinary responsibility for submitting false information. This will help identify judicial clans and prevent conflict of interests situations where judges are adjudicating cases involving their relatives.

Given such circumstances, quite a few judges will choose to resign on their own, out of fear to fall under close scrutiny of the HQCJ and, more importantly, of the public.

In line with the European standards, President and Parliament will be removed from decision-making on judges’ career and removal issues. That being said, the President will have authority to decide on transfers of judges, upon recommendation of the Superior Council of Justice (the HCJ’s new name), for additional two years. In other words, the President will, hypothetically, have the ability to stall the career of a judge whom he deems unworthy of the post. The Venice Commission found this acceptable for a limited time period “for national security reasons”, presumably referring to a situation when the HCJ (the majority of which is made up of judges) would attempt to promote judges associated with Yanukovych.

Judicial immunity is not being eliminated, but will be significantly limited. For example, in cases of detention at the scene of a grave or particularly grave crime, or immediately after commission of such a crime, general rules governing detention will apply to a judge, just like any ordinary citizen (note: obtaining unlawful benefits falls under such crimes). In other cases, consent of the Superior Council of Justice will be required for arrest or detention. At present, this consent is given by Parliament, which is a political body and often cannot rapidly respond to such situations, giving a judge an opportunity to flee.

As for the enforcement of judgments, this area will undergo demonopolization. Private enforcement officers will now operate alongside the state enforcement service. Competition in this area should reduce corruption and increase efficiency of enforcement of judgments. Experience of the countries that have introduced such systems has proven the effectiveness of private enforcement officers.

At the same time, the newly adopted laws also contain provisions that raise doubts as to the sincerity of intentions to carry out a genuine judicial reform.

Risks

Perhaps due to oversight, but more likely deliberately, authors of the new law on the judiciary have given an opportunity to the Yanukovych-era court presidents, accustomed to fulfilling the political instructions, to remain in their positions for an additional seven years. The 2014 law terminated their mandates; yet, judges in many courts have again elected them to the same office. In 2015, they were elected as court presidents for the third, or even the fourth time, despite the prohibition on holding this office for more than two consecutive terms. At that time, the Council of Judges explained that, because each election as court president was based on a new law, the prior term in office no longer counts.

The logic behind such an interpretation goes back to the notorious decision of the Constitutional Court on “Kuchma’s third term”, when the Court did not count Kuchma’s first term in office on the grounds that he was elected president under the former Constitution. Thus, Kuchma received the green light to run for the third time, but fortunately chose not to take advantage of this opportunity.

The new law on the judiciary does not contain any safeguards against the election of court presidents to the fourth, or even the fifth actual term, despite the prohibition to hold this position for more than two consecutive terms.

Moreover, the law, in violation of the Constitution, charges the President with issuing identification certificates to court presidents, who will be elected by meetings of judges. This could lead to a situation when presidents of key courts will be invited to an audience, ostensibly to receive their certificates, but in reality to establish informal contacts with presidential “handlers” of the judicial system.

Despite the introduction of public integrity council, the public may not actually receive effective instruments for influencing the selection and evaluation of judges. Due to the “informational” nature of the newly established public council’s opinions for the HQCJ, the latter could simply ignore them. In other words, these opinions will not play a decisive role in the qualification evaluation of the judges’ integrity, as the HQCJ is under no obligation to justify non-adherence with such opinions or to issue unanimous decisions on the matter. Moreover, the public council will have no influence whatsoever over competitions for vacant positions on local courts.

There are no public representatives on the HQCJ, and judges make up the majority of its members. Instead, the law provides for expanding the HQCJ’s composition with two additional members, nominated by the Head of the State Judicial Administration and the Ombudsman (in the past, these officials used to appoint judges as HQCJ members). Thus, the threat of mutual cover-up remains.

As for the Superior Council of Justice, the existing HCJ will continue in this role until 2019. Thus far, it had failed to prove itself as an agent of change within the judicial system in one year of its activity. Judges similarly make up the majority on this body, and the threat of preservation of the judicial system is very high.

In addition, while the law on the judiciary envisions the High Anti-Corruption Court as the court of first instance for cases involving high-level office corruption, it postpones the creation of this court indefinitely. This court’s status does not provide for any added safeguards for its independence, such as special procedure for selection of judges, higher judicial salaries, own budget, etc. The political authorities’ real intent to establish this court is yet to be seen.

Experts have also pointed out other, equally important problems with constitutional amendments: introduction of the bar’s monopoly on representation in court, preserving a purely political way of appointment and dismissal of the Prosecutor General, and postponing the ratification of the Rome Statute by three years.

Scenarios of possible developments

Pessimists (perhaps, “realists” is more apt here) do not believe in the political powers’ genuine intentions to give up their influence over the judiciary, despite the elimination of certain legal influence mechanisms. They are cautious of a situation where establishment of a new Supreme Court will be used to advance “own” judges and weed out “strangers”, while other courts will preserve the informal system of influence through court presidents.

Looking at the situation through an optimist’s eyes, however, one can see that the changes open up good opportunities for judicial reform, notably through renewal of the judicial ranks and strengthening of the independence of judges – even though this will extend over several years. Civil society organizations and mass media will do everything in their power to ensure that these opportunities are utilized to the full extent. In all likelihood, Ukraine will also score high with its foreign partners when it comes to evaluating its level of the implementation of European standards. In order for the constitutional amendments to become fully effective, it is still necessary to adopt a new law on the Superior Council of Justice, laws on the bar and the prosecution, law on the Constitutional Court, and amend the procedural codes. All of this – just over the next three months.

That being said, the judiciary’s resistance will be vehement. The Constitutional Court is expected to receive a large number of constitutional petitions, aimed primarily at whittling away the laws’ key accomplishments. A serious setback could also occur at the legislative level; given the hasty way of its adoption, the law on the judiciary is certain to undergo subsequent amendments.

Yet, despite this cognitive dissonance, it appears that a huge step towards reforming the justice system did, after all, take place. Whether this will be a step forward will, in many respects, depend on every one of us, and on our ability to keep a watchful eye on all the processes and to persistently fight for our right to a fair trial.

Roman Kuybida, expert

Centre for Policy and Legal Reform and

Reanimation Package of Reforms

Published in «Mirror Weekly. Ukraine».