Judiciary and justice reform in Ukraine
Judiciary and justice reform in Ukraine
VII. Reform with the hidden aim
Source of image: dt.ua
The Soviet justice system was dependent on the bodies of the Communist Party. The division of powers between the state and the party were not practiced as they were in Western democracies. The courts of the criminal justice system did not actually bring to justice and punish criminals. People were not accustomed to resolving their disputes in court, let alone the fact that the jurisdiction of courts was limited. Many disputes were decided by administrative authorities. The appeal system was non-functioning in comparison to a democratic country, because the right to appeal was dependent on the court and prosecution officials. The application of “telephone law” operated on a large scale. Even though judges were elected by the public, the actual candidates were only those that were pre-selected by the communist party.
In the second half of 1980s the government system of the USSR began to be criticized by its supreme officials. Sporadic actions were taken towards the liberalization of the state, including the justice system, during the time of Perestroika.
In 1989 amendments to the Constitution of the Ukrainian SSR of 1977 were adopted. The people’s judges were now elected not by the public, but by the regional Soviets of the people’s deputies. The judge’s mandate was now for ten years instead of five years. The judges were required to suspend membership in political parties for the period of their mandate.
The first important stage of judicial reform was the adoption of the Declaration of the State Sovereignty of Ukraine in 16 July 1990 by the Supreme Rada of Ukrainian SSR. The Declaration stipulated that state power was to be divided between legislative, executive and judicial branches. It was at this moment that Ukraine began to create its own judicial system without the drawbacks of the Soviet system.
On 24 October 1990 provisions on the establishment of a Constitutional Court were included to the Constitution of the Ukrainian SSR. However, they were not practically implemented until 1996.
Ukraine was the first among the former Soviet republics to establish its own system of arbitral courts, independent from the all-USSR justice system for the settlement of commercial disputes in June 1991 (at that time and until 24 August 1991 Ukraine was still a member of the USSR). The Code of Arbitral Procedure was adopted in November.
A Concept of Judicial and Legal Reform in Ukraine was adopted by the Verkhovna Rada of Ukraine on 28 April 1992. The Concept contained the main issues of judicial reform, including the restructuring of the judiciary, adoption of new legislation, improvement of the judicial procedural forms as the main objectives of the reform and establishment of independent judiciary. It was deemed necessary to secure the autonomy and independence of the judiciary from the legislature and the government by effective division of powers, to implement democratic notions of justice, to establish legislation on judiciary, to gradually move to specialized courts, to bring the courts closer to the public and to secure the right to a fair trial.
The Concept as a policy document played an important role, though real actions of judicial reform were different from those declared by the Concept. Nevertheless, between the adoption of the Concept and the adoption of the Constitution of Ukraine, numerous actions proposed by the Concept were implemented: the arbitral courts started their work, the legislation on the status of judges and judicial qualification commissions system were enacted, judicial self-governance was introduced, the appeal procedure for acts, omissions and decisions of administrative bodies was developed, as well as a compensation mechanism for damages caused by investigative authorities, prosecution and the judiciary.
The main legislative acts adopted at this stage are the laws “On the Constitutional Court of Ukraine” of 1992 (but hadn’t had any effect in practice. The Constitutional Court was established in 1996 accordingly to new law), “On the status of judges” of 1992, “On State Protection of Court and Law-Enforcement Bodies Staff” of 1993 (still valid), “On the qualification commissions, qualification attestation and disciplinary responsibility of judges of Ukraine’s courts” of 1994, “On the bodies of judicial self-governance” of 1994, «On the Procedure of Compensation of Damage Caused to a Citizen by Illegal Actions of Inquest, Pre-Trial Investigation, Office of Public Prosecutor and Judicial Bodies” of 1994 (still valid).
In 1995 Ukraine became a member of the Council of Europe and undertook obligations to safeguard human rights and justice. As a result of these obligations, Ukraine undertook began the process of acceding to framework instruments of legal policy on human rights protection, legal and judicial reforms, new codes of criminal and civil procedure and prosecution reform according to the European standards. Some of these undertakings are still ongoing 18 years later.
The European Convention for Protection of Human Rights and Fundamental Freedoms entered into force in Ukraine in 1997. This meant that the State became obligated to secure the right to a fair trial and other human rights according to the Convention. The rights of the individual were now protected by the European Court of Human Rights from violations by the State.
At once Ukraine became one of “the leaders” as per the number of complaints to the European Court of Human Rights. The ECHR recognized in many of its decisions violations of the right to a fair trial by Ukraine, including the right to execution of national judicial decisions, reasonable time for judicial proceedings, independent and impartial tribunals established according to the law, stability of the final court’s rulings, substantiated judicial decision and the right to counsel and legal aid.
The ECHR even criticized Ukraine in its decisions for the failure to implement a number of reforms: on appeal and execution of judicial decisions, criminal justice, legal aid etc.
The Commission for Democracy through Law (the Venice Commission) has played a very important role in changing the attitudes of the Ukrainian government and the public through their production of reports which have examined a number of bills and laws on judiciary and justice.
Resolutions of the Parliamentary Assembly of the Council of Europe became an important indicator of the compliance of Ukraine to its obligations before the Council of Europe, as well as pointing out major problems in rule of law in Ukraine.
European standards for fair trials are among the core values for the experts of CPLR. Experts make use of them in their monitoring, in drafting legislation and in awareness-raising activities. One of the key publications of CPLR is the handbook for judges on requirements of the Art. 6 (right to fair trial) of the Convention.
Unfortunately, Ukraine is still far from full compliance with European standards in its domestic legislation and even farther in administrative and judicial practices.
After complicated and long process the Verkhovna Rada of Ukraine adopted the new Constitution of Ukraine on 28 June 1996. Specifically for assistance in these reforms, and guided by the new Constitution, CPLR was created in November 1996.
The Constitution outlined a new judiciary system, safeguards for the right to a fair trial and laid the foundations of the administration of justice. The Constitution became the most radical document in this field since independence.
The court jurisdiction was extended to cover all legal relations to the state. The main constituent principles of the judicial system became territoriality and specialization. It was determined that judiciary functions are to be carried out by the Constitutional Court and by the courts of general jurisdiction. The Constitutional Court is the only authority with constitutional jurisdiction. The highest body in the general jurisdiction court system is the Supreme Court and the highest bodies of the specialized court systems are the respective Highest Courts. The system of general jurisdiction courts also includes appellate and local courts.
Judges hold their office for life, except for the judges of the Constitutional Court and newly appointed judges, whose first mandate is to last for five years. According to the law judicial functions should be carried out in some cases by people’s assessors and by jury.
The fundamentals of the judiciary in Ukraine are the principles of legality and equality before the law and the court, innocence until proof of guilt, adversarial procedure and independence in provision of evidence to the court and arguing the convincing value of such evidence, maintenance of the state accusation in the court by the prosecution, right to counsel for the accused, public hearings and its full recording with the technical devices, right to appeal and cassation of judicial decisions with appropriate exceptions prescribed by law, and binding judicial decisions. A High Council of Justice was created, which would be responsible for preparing professional judges.
The Law “On the Constitutional Court of Ukraine” was adopted on 16 October 1996. The newly established Constitutional Court started its work in 1997. The following year an appropriate law on the High Council of Justice was adopted.
The transition provisions of the Constitution stipulated that the Supreme Court and the High Arbitral Court were to act until the general jurisdiction courts system would be established according to Art. 125 of the Constitution, but not longer than for five years. However the parliament of Ukraine did not manage to pass a new law on the judiciary within course of the following five years.
Meanwhile, there were as much as six bills registered with the parliament, including those from the Ministry of Justice and the Supreme Court. The models of the judicial systems provided in the latter two bills split the parliament and as a result none of them was supported by the majority. In 1999 there was an incredible decision to adopt in the first reading these two totally incompatible bills, one of which was developed by the working group of the Supreme Court and registered by the member of the parliament V. Sirenko and another which was developed and registered by the member of the parliament V. Shyshkin. The parliamentary Committee on legal policy was then to draw up a unified bill on judiciary based on the two bills for a second reading by the parliament.
Before the end of the five-year transitional provisions of the Constitution there were two models of judicial reform simultaneously developed at the parliament. The first model was based on adoption of a new law on judiciary, which would stipulate in its transitional provisions the minimum Constitutional requirements: creation of the Higher Commercial Court (based on the Higher Arbitral Court), Higher Civil Court and Higher Criminal Court and reorganization of the Supreme Court. Further implementation of judicial reform was to be carried out gradually within a longer period of time.
However it was a second model that that was eventually adopted. A week before the fifth anniversary of the Constitution, on June 21, 2001, Parliament approved a package of laws amending the various laws governing the judiciary, the status of judges and the judiciary. These amendments represented many of the recommendations provided by Ihor Koliushko, founder of CPLR, who was the first deputy chairman of the parliamentary committee on justice at the time.
These changes are called “small judicial reform” and are mainly associated with the formation of a unified system of courts of general jurisdiction by the creation of courts of arbitration, which have been renamed commercial courts. The amendments introduced new appeal procedures (appeal and cassation, instead of the Soviet cassation and supervisory review), and court authorization for arrest, custody procedures and the detention of suspects, the examination and search of a dwelling or other property. Appellate commercial courts were established to review decisions by local economic courts. Heads and deputy heads of local courts were to be appointed by the Minister of Justice, and heads and deputy heads of appellate and supreme courts were elected by the general meeting of judges.
Small judicial reform brought the national judicial system into conformity with the Constitution of Ukraine and created the necessary conditions for the adoption of the new law on the judiciary.
In order to fulfill the order of Parliament to merge the projects of Sirenko and Shyshkina into one bill, the parliamentary committee on legal policy created a working group, but left out the initiators. The working group used as its starting point the conservative design of Sirenko and created a document was intended to have the support of the Supreme Court and the pro-presidential majority in parliament.
The new law “On Judicial System of Ukraine” was adopted in 2002 to replace the Law “On the Judicial System of Ukraine” from 1981, the Law “On the commercial courts” and other relevant laws.
The new Judiciary Act provided a new instances within the general jurisdiction court system – the Cassation Court was to act as a cassation instance in the system of general courts and the Court of Appeal as a court of appeal against decisions of other appellate courts of general jurisdiction approved in the first instance (although both courts and were not formed). The law also stipulated a three-year term for the creation of administrative courts.
Organizational support of the court system was transferred a new system – the state judicial administration, formed within the executive branch specifically for organizational support of the courts.
Several provisions of the law worsened guarantees of judicial independence. The territorial jurisdiction of the general courts (as well as the powers of local authorities, public prosecutors) was strictly tied to the administrative-territorial structure. The law unconstitutionally expanded presidential powers on the judiciary. Yes, the law gives the President the authority to appoint the chairmen and deputy chairmen of courts (except the Supreme Court) and dismiss them from office, to transfer judges from one court to another, to assign the judges of military courts of all military ranks, and to determine the quantitative composition of the Supreme Court. Administrative powers of court presidents and their deputies expanded, raising the possibility of influencing the judges of the courts when considering their cases. The only exception to direct presidential influence was the heads of courts and many small administrative functions.
The Ukrainian law “On Judicial System of Ukraine” does not provide a comprehensive reform of the judicial system because it has not made significant progressive changes to the justice system, except for the creation of a complete system of administrative courts.
The new law “On the Judiciary of Ukraine” became a significant but transient step in the formation of a new system of justice. Its adoption, as well as the adoption of new Criminal, Civil, and Family Codes, as well as other acts of codified substantive law made it possible to move to the next stage of the legal and judicial reform – the updating procedural legislation.
A new Civil Procedural Code was adopted in 2004. And in 2005 the Parliament of Ukraine adopted the new Code of Administrative Proceedings. The Centre for Political and Legal Reforms were active participants in processing both instruments. CPLR experts have produced publications related to civil proceedings and administrative justice, and also experts Igor Koliushko and Roman Kuybida have been active in the working groups that finalized the drafts of these codes in parliament. Moreover, the Code of Administrative Justice was written based precisely on a project of the Centre for Political and Legal Reforms.
The Codes entered into force on 1 September 2005. Next, work was started in creating a system of administrative courts. Implementation of the Code of Administrative Procedure accompanied numerous trainings for judges, held on the basis of programs and guidance offered by our experts.
Another of our achievements at the time was the adoption of the Law “On Access to Judicial Decisions” (22 December 2005). On the basis of this law there was established a single state register of judgments, including the judgments from general, commercial and administrative courts, and with public access to the judgments via the Internet. Interestingly, the Supreme Court was against the adoption of this law, apparently fearing that the registry would not flawlessly mirror the courts.
With the election of the new President of Ukraine in 2004, Viktor Yushchenko, the need for drastic reforms in all spheres of government was declared. Particularly, much activity has been in the preparation of documents that would guide the complex solving of the problems justice, as judicial reform has occurred inconsistently and haphazardly. So began the debate on comprehensive reform, which, unlike previous fragmented and disjointed attempts, would provide interconnected changes that encompass all aspects of the judiciary.
Specialists at the Centre for Political and Legal Reforms contributed to the development of projects producing such documents under the National Commission on Strengthening Democracy and the Rule of Law. The basis of the concept of further judicial reform was taken from a project developed by our experts.
In 2006 the President of Ukraine approved the “Concept of the Judiciary to ensure fair trial in Ukraine in line with European standards”. The Concept stated that Ukrainian courts have not yet become effective institutions for the protection of human rights, and the level of confidence in them by society is extremely low.
The concept covered a wide range of issues related to the right to judicial protection: the system of courts, the judiciary, the status of judges, judicial authorities, providing courts and related institutions, without reform of full judicial reform is impossible. Related institutions include: the mechanism of legal aid within the system of pre-trial investigation in criminal cases, the prosecutor’s office, the system of execution of court decisions, the organization of the penal system and alternative (non-judicial) methods of dispute resolution, as well as the institute of administrative misconduct.
The implementation of the concept was planned for ten years if the required legislative framework will be provided in 2006-2007. Certain aspects in the Concepts were applied, even before its official approval, including the measures for implementation of the obligations of Ukraine, resulting from membership in the Council of Europe (approved by the President on January 20, 2006) and the Action Plan for 2006 to improve the judicial system and ensuring justice in Ukraine according to European standards (approved by the President on March 20, 2006).
To implement the concept of the Commission prepared a package of bills, two of which – a new bill on the Judiciary and on the Status of Judges – were submitted by President to Parliament in December 2006. They were approved upon the first reading in April 2007. However, because of the increasing resistance of various political forces to President Viktor Yushchenko they did not have enough support in parliament to pass.
Work on the Concept and the introduction of bills for its implementation, helped identify a number of deficiencies in the Constitution of Ukraine, as well as inconsistencies of the Concept with European standards (the appointment of judges did not meet the requirement for perpetuity appointment, the election of judges by Parliament undermined the independence of judges, in the High Council of Justice judges elected by their peers, were only fifth of its members).
These and other questions of the constitutional amendments on the justice system were the subject of the National Commission on Strengthening Democracy and the Rule of Law in 2008. Our experts also provided expert support in this process. However, due to political crisis and relevant draft amendments to the Constitution made by the President, the suggestions of the Commission have not been supported.
It should be noted that there have nevertheless been development with regards to certain provisions of the Concept. In 2006 the President approved the formation of a system of free legal aid in Ukraine, and in 2008 the Concept of Criminal Justice Reform Ukraine, which were also prepared with the active participation of our experts. Also in 2006, the President of Ukraine approved the Concept for Combating Corruption in Ukraine “On the Way to Integrity”, which among other things provided for measures to combat corruption in the judiciary.
A radically new Criminal Procedure Code was then drafted, which after several changes (including negative ones), and after compromises, was approved in 2012. The working group in charge of the project to draft the new CPC included the experts from CPLR, Oleksander Banchuk and Roman Kuybida. Problems with working on the new CPC were covered in several publications.
VII. Reform with the hidden aim
2010 was a turning point in judicial reform. The urgent need for it could not be denied by anybody. There has been a long time need of it by society, because the level of confidence in the judiciary declined annually.
There began active work on preparing a reform of the entire system of government after the election of President Viktor Yanukovych. The President created the Working Group on Judicial Reform, headed by Justice Minister Oleksander Lavrynovych and set the task to, in a short time, develop the necessary bills. On May 31, 2010, the President submitted to Parliament a draft law “On the Judicial System and Status of Judges”, allegedly prepared by the Working Group on judicial reform, but actually written in the corridors of the Presidential Administration and the Ministry of Justice.
On July 7, 2010, the Parliament adopted the Law “On the Judicial System and Status of Judges” despite the promises of President’s prior approval of the project with the Venice Commission. It entered into force on July 30 – the day of publication.
This event marked the beginning of major changes in the judiciary, but was perceived ambiguously. The authorities have presented it as a long-awaited reform of the justice system, which had not been managed by the previous government. Instead, Chief Justice Vasyl Onopenko called the adoption of the law a “legislative gamble” and stressed that its destructive power threw Ukraine back in its democratic development. On October 5 2010 the Parliamentary Assembly of the Council of Europe expressed concern that such a law was passed with too great haste. The Venice Commission followed a few months later, showing inconsistency of the law with a number of European standards.
Was the new law as predicted? The positive stories include: the introduction of automated assignment of cases to judges in all courts, strengthening the responsibility of government agencies for non-compliance with court decisions in administrative cases and more. The law introduced mandatory special training for judges, including prior appointment, and the competitive selection process for judicial work in the permanent single qualification commission of judges. Also found in the Law are for the first time requirements to declare income and expenditure by judges and their families, as the law comprehensively regulates the payment of remuneration of judges, the Law decided to issue a separate cassation in civil and criminal cases by introducing a higher court, abolished military courts and more. The State Judicial Administration was removed from the executive and put within the judiciary. The Law also limited the presidents’ powers that allow him to interfere in the administration of justice.
However, the law has worsened people’s access to justice and created a number of threats to judicial independence. Thus, the Law “On the Judicial System and Status of Judges” made changes to all procedural codes, some of which resulted in negative consequences. Procedural time limits were reduced as if to counter litigation. When judges adjusted caseloads to follow these new limits it resulted in numerous violations of procedural rights of the parties and superficial handling of cases.
The Supreme Court was denied an effective opportunity to promote the uniform application of substantive law and procedural rules – such opportunities with regards to procedure are absent altogether. The Venice Commission concluded that “willful attempt to reduce the powers of the Supreme Court is far beyond the desire to create a more effective judicial system” and is the result of unhealthy conflict between the judiciary and the executive (apparently referring to political power).
The law created serious leverage for political pressure on judges. Despite the formal constraints of the President and Parliament to take part in shaping the judiciary, the Centre of decision-making has shifted to political power controlled by the High Council of Justice and the High Qualifications Commission. For example, the High Judicial Council, which is under strong political influence, was given significant opportunities to influence the selection and dismissal of judges, appointment of court presidents and their deputies.
Major powers over judges were given to the High Qualifications Commission of Judges. Despite the fact that most of this Commission consists of judges elected by the Congress of Judges of Ukraine, however, the agency failed to avoid politicization. Before the formation of its new membership according to the law “On the Judicial System and Status of Judges”, a reorganization of the judicial authorities was perpetrated, one that in fact was controlled from the outside.
The Law does not provide a competitive basis for the promotion of judges, undefined criteria for judges will factor into promotion to superior courts. Despite the declared adversarial disciplinary procedure, the reality is different.
New mechanisms have been created to keep each judge under constant threat of disciplinary action and dismissal (for example, a violation of the terms of cases).
The dependence of judges on the good will of political power is indicated by banning of rallies and demonstrations through court orders, making other favorable political power solutions, and the use of courts, prosecutors, security services and police in the prosecution of opposition and human rights activists. The automated system for distribution of cases was not difficult to get around, for example through the creation of specialized courts.
The judges themselves saw significant politically motivated rotation: the government propagated in 2010 the resignation of many judges, especially in the higher courts, and then the government forced the transfer of judges to the courts of Kiev – mostly from Donetsk and other eastern regions. Many of these judges appointed chief judges and their deputies.
Thus it can be said that judicial reform in 2010, despite some positive stories, worsened access to justice for people and significantly undermined judicial independence. The new government did not escape the temptation to use reform to enhance their impact on the courts. Ensuring the right to a fair trial was not the real purpose of judicial reform.
The Centre for Political and Legal Reforms during this period was limited mainly to monitoring measures that exposed the true intentions of reformers – making judges dependent and controlled by the central government. To remedy this situation, we have focused also on legislative activities, particularly within the Commission to strengthen democracy and the rule of law. The relevant bills we have supported have given overwhelmingly positive opinions by the Venice Commission, but have remained bills.
Judicial reform has affected the functioning of other state institutions (prosecutor system of enforcement, penal judicial system, etc.). Previously, all of these reforms were isolated and not linked to each other. Even within the judicial system reform, they were mainly autonomous reforms and not comprehensive.
Justice should be available to everyone. The court system should be as simple and clear as possible. There should be no dispute as to the legal protection of individual rights, which cannot be left to the discretion of the court. Courts recognize that their credibility depends on the widest possible public information about their activities. Courtrooms in every court proceeding should be open to public access. Adequate resources should be provided to Courts to ensure they are not overloaded with cases. Compliance to court decisions should be controlled so that they are followed within a reasonable amount of time. In case of the violation of the right to trial within a reasonable time the State should compensate the damage.
Cases should be considered with independent, professional and responsible judgment. Politicians should have no power to influence and pressure judges in deciding their cases. Judges are selected from qualified persons as a result of a complex, but transparent and objective, competitive test. Cases among judges distributed without any interference of subjective factors. Judges are aware of their high mission and should maintain an impeccable reputation. The judge should have a real liability for unfair behavior and abuse, resulting ultimately in dismissal. The misconduct of judges should be made public information.
The court should rest on the principle of equality of arms. Court should not give undue advantage to any of the trial participants. In court should have the same respect for each visitor, as each visitor shows respect for the court. Impoverished families should have state-guaranteed right to legal aid. The defense in criminal cases should have the same opportunities to collect evidence as the prosecution. Investigations that can impinge upon human rights should be held under the control of the court. There should operate real, and not fake, juries in the criminal cases.
Judgments should be fair and easily compliable. The court decision provides compelling and fair assessment of all evidence and the arguments of each party. Similar cases should be applied equally. All decisions of the court should be made available via the Internet. It should be more profitable to execute a judgment than to delay it. The court should monitor the execution of its decisions.
The efforts of the Centre for Political and Legal Reforms have, for many years, set out to achieve these goals – through monitoring, and proposing legislative activity. Some things have been achieved, but the most important tasks are still ahead.