Policy paper "Instruments for strengthening confidence in the courts in Ukraine"

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The goal of this research paper is to facilitate an informed discussion with policymakers on improving confidence in Ukrainian courts. The research paper has been prepared based on analytical desk research (including surveys conducted by Ukrainian and international organizations/institutions) and discussions with practitioners from the justice sectors in Ukraine and the Netherlands.

Authors: Roman Kuibida, Centre for Policy and Legal Reform; Mykhailo Zhernakov, DEJURE Foundation; Maksym Sereda, Centre for Policy and Legal Reform. 
Reviewer: Lino Brosius, Center for International Legal Cooperation (the Netherlands).

The document is divided into the following sections:

• “Tradition”: does the level of confidence depend on the geopolitical location of the country, its history and culture? how does the confidence in the courts relate to the confidence in other public institutions? what are the trends in changing the level of confidence in courts over time and with respect to the experience of participation in judicial proceedings?
• “Personnel”: how to ensure high quality of judicial personnel through the mechanisms of se-lection, training, and accountability?
• “Service orientation”: how to make courts effective, convenient, clear, and focused on the needs of participants in court proceedings?
•  “Communications”: how to increase confidence in courts by providing quality information services?

Conclusions and Recommendations

• There are certain societies that have a high level of confidence in the state and public institutions, and there are those that have low ones. Currently, Ukrainian society belongs to the latter group. Generally, only a small number of public institutions enjoy the trust of the majority of Ukraine’s population. Only 11% of the respondents trust the courts.
• The low level of confidence in the courts in Ukraine can be explained both by general distrust in the authorities and by special reasons, since the courts in Ukraine generally enjoy less confidence than political authorities. This distinguishes Ukraine from Western European states, where courts enjoy higher confidence than other branches of government.
• The fact that the users of court services have greater confidence in the courts than those who have not participated in trials is of great significance for potentially improving the confidence in the courts. Personal experience can destroy stereotypes. It is important that the experience of communication with the court be positive.
• People who provide judicial services are the face of justice. They have the greatest influence on the development of the judiciary as an authority and, accordingly, of confidence in it. Ukraine has faced, and continues to face, high public demand for cleansing and updating of the judicial ranks.
• To overcome mutual coverups and protectionism in the Ukrainian justice system it might be beneficial to change the composition of the judicial selection bodies, for instance, by including a majority of civic sector representatives who are trusted by the community (e.g., human rights activists, journalists, representatives of specialised NGOs, etc.). Temporary participation of international organisation representatives’ in the judicial selection bodies will also increase transparency and confidence in this process among Ukrainian society and the international community.
• It is important to introduce the verification of compliance with the integrity and professional ethics criteria for candidates to judicial positions in local courts and to increase the weight of these criteria in competition procedures for higher level courts.
• In light of the Dutch experience, it is important to redirect the professional training of future judges in Ukraine from applying the law to the development of judges’ ability to be guided by principles and values in resolving various dilemmas. Persons with dubious reputation should not be engaged as trainers for judges.
• Judicial accountability mechanisms could have a restraining effect, but they are not in very high demand in those societies where the justice system enjoys trust and where the judges have gained respect among the public. It is necessary to aspire for the integrity of judges to be their conscious choice and for them to stand firm before influences and temptations. This could be accomplished by quality selection of judicial personnel that takes into account their past and virtues, as well as their training. At the same time, continuing development of accountability mechanisms in Ukraine and – most importantly – their proper application could have a positive impact on the conduct of in-office judges.
• Service orientation is widespread in business and is starting to be implemented in Ukraine’s public sector. There is progress in creation of convenient conditions for administrative services. But courts are still not perceived as a convenient and comfortable institutions aimed at meeting people’s needs.
• The effectiveness of the judicial system in Ukraine is suffering from excessive workloads and lack of judges. Therefore, now it is important to fill judicial vacancies. It is also necessary to improve time management in the courts and to introduce a system of early notification of trial participants regarding postponement of court sessions. Regarding the enforcement of court decisions, it is important to develop the institution of private bailiffs who work on a competitive basis, and to gradually reduce the share of the state enforcement service, potentially with the view of eliminating it entirely.
• It is necessary to review and revise court services, resources, and related technological procedures, from the point of view of orienting them towards meeting the needs of the users of these services. It is also important to develop and introduce quality standards for court services. It is desirable to make court procedures less formalistic; to humanise them. Court building designs should take into account the needs of users of court services to the greatest extent possible.
• The introduction of modern technologies in court proceedings (e-court) might enable faster exchange of information and reduce time and financial inputs by both the state and the users of court services. The risks of disrupting the schedule of court hearings due to non-arrival by one of the participants will decrease, while any postponements will not carry such negative consequences. Thus, there will be guaranteed ability to obtain justice while remaining at one’s home or workplace, without spending much time on this. As a result, the court will become more accessible to people, including to persons with disabilities.
• It is advisable to amend procedural codes to provide for extraterritorial assignment of cases among courts, if those cases are decided by c-court. This will allow to balance out court workloads, since cases decided via the E-Court system will be allocated among courts and judges without taking into account traditional territorial jurisdiction rules – because the Internet makes a court’s location irrelevant.
• In the longer-term, the introduction of artificial intelligence will enable an e-court to serve as mediator for various disputes without involvement of a human judge, while in some cases it could conceivably even absorb certain traditional functions of a judge.
• The level of confidence in the courts depends not only on quality of them performing their main function – the administration of justice – but also on the information about such activity that reaches the public. Negative information about courts and judges prevails in the Ukrainian informational space (sadly, the judicial system provides a lot of grounds for this), which certainly affects the decline in confidence. However, the fact that trial participants tend more towards trusting the courts suggests it is possible to use communication tools to increase confidence among those who have not been to court.
• Ensuring procedural justice is also important: listening seriously to the parties’ stories equally, assembling true facts to build the bridge between the norms and the facts, being interested in the ‘truth’, treating people as you yourself want to be treated – respectfully: justice must not only be done, it must also be seen to be done; paying attention to the judges’ core task: grounding/motivating each decision thoroughly. People/society must be able to understand the line of reasoning of a judicial decision.
• It is advisable to recommend the High Council of Justice to develop and implement a methodology for regularly collecting and analysing information necessary for the development of effective communications with different target groups.
• It is necessary to commend the significant progress that Ukrainian judiciary is making to improve its communications with the society. That being said, communications need improvement. It is necessary to emphasise quality over quantity of information output. The courts should be producing content that improve the impression of the judiciary’s activity (positive changes) without being misleading at the same time (honest communication). The style used in information messages should be more “humanised” and oriented towards users (dry bureaucratic language is harmful).
• Regarding the high-profile cases of great societal significance, it is worthwhile to give preference to proactive communication rather than reactive. Proactive communication could involve organising press conferences immediately after court sessions (primarily those where a final court opinion is announced) or dissemination of press releases as to the court’s principal rationales.
• It is advisable to amend procedural codes to require the court, after announcing its opinion, to provide a short, plain-language justification understandable to the parties and the public. Currently, judges most frequently only read out the resolution part of the court opinion and postpone the drafting of the complete text until later. At the same time, in criminal cases, judges typically read the full text of the court opinion during the court session. However, this could be dropped in favour of providing a short and clear oral rationale during the court session, followed by subsequently providing the full text of the opinion to the parties and posting the opinion in the registry of court decisions.
• Youths need to be designated as a separate target audience in the courts’ communication strategy, requiring special attention and the creation of special content (animated cartoons, videoclips, educational films, computer games, comic books, etc.). Creation of such content is currently possible in partnership with interested civic organisations.

Instruments for strengthening confidence in the courts in Ukraine from Centre of Policy and Legal Reform

This publication is prepared with the support of Foundation Open Society Institute in cooperation with the OSIFE of the Open Society Foundation.