Judicial Reform in Ukraine: Challenges and Recommendations
Kyiv, 11 March 2014
The independent, honest, and fair judiciary is the foundation for developing a democratic political system and a competitive market economy. It is obvious that such judiciary is lacking in Ukraine. As of the end of 2013, only 19% of citizens trusted the judiciary, while 71.3% did not. Therefore, the judicial reform must be a key priority for the new government of Ukraine.
As a result of the so-called "judicial reform" of 2010 (adoption of the new Law On the Judiciary and the Status of Judges), the entire judiciary system of Ukraine became dependent on the political power, specifically on the presidential administration. The latter was able to exercise a decisive influence on each of over 9,000 judges by
- Controlling key personnel agencies, such as the High Council of Justice and the High Qualification Commission of Judges, and thus controlling assignment, transfer, and dismissal of judges, i.e. their entire career (while there are no statutory competitive procedures for promotion of judges in service);
- Controlling the judicial self-governance system which was deliberately established in 2010 as an overcomplicated structure where delegates at key self-governance authorities were de facto appointed and courts of different jurisdictions had disproportionate representation, as a result of which full control over the Congress of Judges was achieved;
- Establishing dependence of judges on court presidents (for fear of disciplinary liability) and dependence of court presidents on political authorities as they were appointed by the well-disciplined High Council of Justice;
- Toughening the mechanisms of disciplinary liability that any judge could face, where cases were heard by the High Qualification Commission of Judges and the High Council of Justice;
- Using compromising information owned by law enforcement agencies against some of the judges that could result in criminal liability.
All of this had a deterrent effect on judges and forced them to censor their own decisions, even where there were no direct instructions for a particular ruling in a case.
The president of the country also had a complete control of the Constitutional Court as he influenced its formation (proportional appointments by the president, the parliament (where the president had political support of the majority of MPs), and the Congress of Judges controlled by the president) and through the pressure of law enforcement agencies on disloyal judges of the Constitutional Court.
In 2013, while implementing the conditions for signing the Association Agreement with the EU, the government announced plans for further judicial reform where the main focus was on amendments to the Constitution. At the same time, they deliberately did nothing to improve the legislation on the judiciary and the status of judges (on the mechanisms of selection and accountability of judges, on judicial self-governance, etc.) – despite the need to bring it in line with the case law of the European Court of Human Rights (e.g. the case "Oleksandr Volkov v. Ukraine") and numerous opinions of the Venice Commission. The position of the authorities – "first amendments the Constitution, then the other amendments" – was manipulative: they pretended to be engaged in process of reforms while actually deferring them.
In July 2013, the president submitted to the parliament a draft law on amendments to the Constitution of Ukraine "On Enhancing the Guarantees of Independence of Judges." Prior to that, the draft law received a generally positive opinion of the Venice Commission of the Council of Europe. On 10 October 2013, the parliament preliminarily approved the draft law with 244 votes (the Party of Regions, the Communist Party, and the majority of independent MPs). The parliamentary opposition did not support the draft law. For the final adoption of these amendments, at least 300 MPs need to support them at the next regular session (which began in February 2014).
The draft law stipulated, inter alia, that the majority of members of the High Council of Justice and the High Qualification Commission of Judges would be judges elected by the Congress of Judges. However, in practice, without the reform of the judicial self-governance this would mean that candidates for the High Council of Justice and the High Qualification Commission of Judges would still be picked up by the presidential administration.
The then opposition made its proposals to the draft law submitted by the president, but the specialized Parliamentary Committee did not take them into account for formal reasons. Speaking about the merits of the suggestions by the opposition, at least half of them are far from the European standards. The combination of reasonable and unacceptable provisions was also noted in the opinion of the Venice Commission on these proposals issued in early December 2013.
The text of Section VIII “Justice" of the Constitution of Ukraine did not differ in the versions of 1996 and 2004, thus it did not undergo any changes as a result of the decision of the parliament adopted on 22 February 2014 on restoring validity of the Constitution of 2004.
On the eve of the political crisis in November 2013, representatives of the three opposition factions in the parliament submitted draft law #3678 on enhancement of the judicial self-governance. The draft law was based on the opinion of the Venice Commission on the Law of Ukraine "On the Judicial System and the Status of Judges" of 2010. The draft law simplifies the system of judicial self-governance bodies by cancelling conferences and councils of judges of general and specialized courts. Assemblies of judges at each court, under the draft law, would directly elect delegates to the Congress of Judges. The Congress of Judges and the Council of Judges of Ukraine would be formed on the principle of proportional representation of judges. It is also suggested to authorize the assemblies of judges to appoint presidents of courts. These amendments could restore independence of judicial self-governance and are worth supporting. After formation of the new Congress of Judges under the new rules, the High Qualification Commission of Judges and the High Council of Justice would be re-elected as regards the judicial quotas.
Another area of the reform where legislative initiatives were introduced in the autumn of 2013 was review of the mandate of the Supreme Court of Ukraine. The need to strengthen its role stems from the opinion of the Venice Commission which only saw political motives for limitation of its mandate as a result of the reform of 2010.
In early October 2013, MPs close to the presidential administration submitted to the parliament a draft law on amendments to some legislative acts of Ukraine concerning the powers of the Supreme Court of Ukraine. However, in the circumstances where the Plenum of the Supreme Court elected the president's protégé as the president of this court, it seemed to be another step to intensify the political influence on the judiciary, which was followed by restoring some of the Supreme Court's administrative leverages over the courts.
Another draft law, #3356-2, was signed by the leaders and MPs of the other two factions being in opposition at that time – "Batkivschyna" and "Udar". Unlike the former draft law, this one stipulates that admission of cases for consideration by the Supreme Court will be decided by this Court, rather than the high specialized court; the Supreme Court will be able to review judgments for the reason of contradictory application of any provisions of the procedural legislation, and not only those relating to determining the jurisdiction. However, this draft law also includes such questionable powers of the Supreme Court from the perspective of the European standards as providing recommendation interpretations on application of legislation.
On 23 February 2014, after the overthrow of the regime of Viktor Yanukovych, the parliament adopted the law on certain aspects of the judiciary and the status of judges restoring the authority of the Parliamentary Committee on Justice for preliminary consideration of judge recruitment issues at its sessions (the Committee had this mandate before the reform of 2010). The law also stipulated that court presidents and their deputies should be appointed by the parliament on the proposal of the respective councils of judges. This law is an attempt of the parliament to assume resolution of personnel issues in the judiciary system, but this is contrary to the European standards.
What Should Be Done? Recommendations
- Adopt draft law #3678 on enhancement of the judicial self-governance submitted by MPs (developed based on the opinion of the Venice Commission, it will simplify the system by canceling the appointed bodies – conferences and councils of judges of general and specialized courts – the "proxies" between assemblies of judges at each court and the Congress of Judges and the Council of Judges of Ukraine; as well as authorize assemblies of judges to appoint presidents of courts). Thus, it is necessary to abolish the law of 23 February 2014 on certain matters of the judiciary system and the status of judges;
- After adoption of these changes, to implement them in practice: to re-elect new judicial self-governance bodies, the High Council of Justice, the High Qualification Commission of Judges (banning the current members from being elected to these bodies), and to appoint new presidents of courts and their deputies at assemblies of judges;
- To strengthen the role of the Supreme Court in the formation of a coherent judicial practice by adopting draft law #3356-2 submitted by MPs (but having improved itby withdrawing the authority of the Supreme Court and high specialized courts to issue interpretations regarding application of laws beyond court proceedings; no unjustified expansion of the Supreme Court's membership).
- To work out and adopt amendments to the legislation on the system of recruitment of judges (in particular, to introduce competitive mechanisms to promote judges based on objective criteria, e.g. by using a polygraph) and on the system for disciplinary accountability of judges (to clarify the grounds, to stipulate proportionate sanctions, to set validity periods for bringing to liability, to stipulate a competitive procedure for disciplinary proceedings, to establish a single disciplinary authority, to foresee special integrity proofs) – based on the draft new Law "On the Judiciary and the Status of Judges" developed in 2011 by the Commission for Strengthening Democracy and the Rule of Law that received a positive feedback from the Venice Commission;
- To finalize the preliminarily draft law #2522 on amending the Constitution adopted by the parliament to strengthen the guarantees of judicial independence for full implementation of the opinion of the Venice Commission, including:
o To eliminate the president from the processes of transfer and dismissal of judges, he/she can only have the power to appoint a person to the position of a judge based on the recommendation of the High Council of Justice;
o To empower the High Council of Justice to identify the court where a judge will work and transfer him/her to another court on competitive grounds;
o To establish qualification and disciplinary boards within the High Council of Justice, while the separate High Qualification Commission of Judges should be eliminated;
o Judicial self-governance authorities should appoint presidents of courts;
o To bring down judicial immunity to the functional one (i.e. not to apply the immunity for crimes that judges may commit beyond their professional activity);
o To remove the General Prosecutor from the composition of the High Council of Justice;
o To cancel the increase of the retirement age for judges to 70 and the raise of the minimum age for judges from 25 to 30 years old, given the need to increase the number of the younger generation representatives (who have a better command of foreign languages and were brought up in the independent Ukraine) among judges;
o To stipulate the individual's right to file a cassation appeal to the Constitutional Court;
o To establish a separate unit to act on a voluntary basis for selection of candidates for positions of judges of the Constitutional Court.
- To reform the mechanism of forming the Constitutional Court – nominations for the office of a judge of this court should be put forward by a special commission from among competent professionals (including the retired judges of the Constitutional Court who have not discredited themselves at that position);
- To develop a clear legal framework for lustration of judges – dismissal of those who passed their decisions with gross disregard for fundamental human rights. Lustration of discredited judges is needed to restore public confidence in the judiciary system.
This is a short version of the larger report by Roman Kuybida, Deputy Chairman of the Center for Political and Legislative Reforms, edited by Dmytro Shulga, Director of the European Program Initiative of the International Renaissance Foundation, in the framework of the International Renaissance Foundation project for civic monitoring of Ukraine's implementation of the benchmarks for signing the EU Association Agreement.