NAPC published a draft Anti-Corruption Strategy for 2020–2024: integrity in the judiciary is one of the focuses
On June 23, the National Agency for the Prevention of Corruption submitted for public discussion a draft Anti-corruption Strategy for 2020-2024 – the main program document in the area of anti-corruption policy. According to the Law “On Prevention of Corruption”, the anti-corruption strategy shall be approved by law.
Section III of the draft strategy is dedicated to the prevention of corruption in priority areas, which include the judiciary ("Fair Court").
The NAPC states the following problems in the judicial system:
- lack of regulatory requirements for the integrity of members of the High Council of Justice (hereinafter – the HCJ) and the High Qualification Commission of Judges of Ukraine (hereinafter – the HQCJ);
- integrity and professional ethics as constitutional requirements for judges have not been implemented in practice, and the assessment of these requirements is not transparent and predictable;
- lack of effective permanent mechanisms to maintain the integrity of the judicial staff;
- existence of significant corruption risks due to the imperfection of the judicial system.
The solution of the above problems is possible through the achievement of specific strategic results, which are enshrined in the strategy and which can be divided into several groups, in particular:
- ensuring the integrity of HCJ and HQCJ members by stipulating this criterion in the law, as well as their selection by a special commission of representatives of the Council of Judges, international and public experts. It is also proposed to check the integrity of the current members of the HCJ by an independent external commission of representatives of the Council of Judges, international and public experts, and if a HCJ member fails to pass this integrity check, he/she should be dismissed;
- improvement of the qualification assessment procedure by approving clear integrity criteria jointly by the HQCJ, the Public Integrity Council and the Public Council of International Experts, ensuring full transparency and openness of the assessment process (publication of exam materials, voting and evaluation results). It is also proposed to introduce a mechanism for reviewing decisions of the previous composition of the HQCJ, according to which the HCJ refused to dismiss a judge due to unmotivated decision of the commission, as well as the successful assessment of a judge if there is information about his/her dishonesty;
- improvement of the institution of disciplinary responsibility of judges, which should ensure prompt and fair consideration of disciplinary cases, open, consistent and predictable disciplinary practice, real responsibility of judges for unjust decisions and failure to prove the legality of the origin of their property or property of their family members;
- other measures aimed at addressing certain problems of the judiciary: regular replacement of judges holding administrative positions; electronic litigation with the implementation of the extraterritorial principle of case distribution; introduction of a full-fledged jury trial; expanding the scope of alternative dispute resolution; ensuring cassation review of decisions in cases of high-ranking corruption by judges selected with the involvement of the Public Council of International Experts; conducting an independent audit of the activities of state-owned enterprises of the State Judicial Administration and taking measures to respond to the identified inefficiencies.
1. Formation of a fair and independent composition of the HQCJ and the HCJ plays a key role in ensuring fair judicial staff, as these bodies form standards of integrity when assessing the conduct of judges (within disciplinary, competitive procedures, qualification assessment). However, the members of these bodies themselves did not pass the integrity check, and their appointment is often accompanied by circumstances that cast doubt on their integrity and independence (see paragraphs 12-17 of the Alternative Report on the Status of Judges' Independence for 2018 and paragraph 7-9 of the Alternative Report for 2019). In practice, this leads to their tolerance of cases of dishonest behavior of judges or “recognition as fair” of negative practices that have existed for a long time in the judicial system (for example, such a form of abuse of office as privatization of official housing by judges). The measures proposed in the Strategy will help to prevent such cases. Some of these measures are mentioned in paragraph 26 of the Memorandum on Economic and Financial Policy between Ukraine and the IMF.
2. In practice, the institution of qualification assessment of judges has become a formal procedure that has not shown its effectiveness. Only a few judges were dismissed on the basis of such an assessment, in most cases on formal grounds (failure to appear for the assessment or failure to take the test of knowledge of the legislation). The measures proposed in the strategy will make the qualification assessment mechanism effective and predictable, in particular through the development of agreed standards of integrity of judges.
3. Te mechanism of disciplinary responsibility does not currently ensure the achievement of its tasks, in particular the practice of the HCJ is inconsistent, selective and is used to put pressure on some judges or to cover the illegal, dishonest behavior of other judges. The constitutional basis for dismissal of judges due to failure to prove the legality of the origin of the acquired property has never been applied since its introduction (since 2016), despite numerous published facts of obvious disproportion of the judge's property to his/her declared income. The measures proposed in the strategy will help to overcome these problems.
4. Other measures aimed at addressing certain problems of the judiciary, provided for in the strategy, are also relevant.
In summary, ignoring and unresolving for many years the problems of justice diagnosed in the draft strategy leads to the fact that no judicial reform achieves the desired results.
The proposed measures to address these issues are appropriate (provided they are properly implemented in practice) and take into account past implementation experiences of similar institutions.
In view of the above, the CPLR experts support the approaches to the establishment of integrity in the judiciary, proposed in the draft Anti-Corruption Strategy for 2020-2024.