Monitoring of the reforms progress based on the analysis of the implementation
of the recommendations of sectoral analytical brief for URC 2021
Section 1. Monitoring of the implementation of recommendations on reform priorities for 2020-2021
1. The composition of the High Council of Justice (HCJ) should be clarified with the help of an independent body, and if the goal is not achieved - through constitutional changes to create a new body with a majority (at least for a transitional period) of members from the civil society representatives with an impeccable reputation.
In February 2021, a presidential bill №5068 was registered in the Parliament. It provides for the creation of the Ethics Council with the participation of international experts, which will conduct a one-time review of the integrity of current members of the HCJ with the right to recommend their dismissal. While evaluating this bill, the Venice Commission recommended to give international experts a decisive voice in decision-making by the Ethics Council and made some other proposals.
The registered version of the bill allows the "judicial" part of the Ethics Council to terminate participation in the competition of any candidate, as well as to block the decision on the dishonesty of a member of the HCJ. There is also a current procedure for appealing, according to which the formation of the Ethics Council and its decisions may be subject to consideration in the Kyiv District Administrative Court (KDAC), the chairman and judges of which are suspected in crimes related to the seizure of power.
Bill does not contain effective tools for “cleaning” the HCJ, as the conclusions of the Ethics Council will be of a recommendatory nature, and decisions on the dismissal of HCJ members will be made by the subjects of election (appointment). Adoption of the bill in this version will not achieve the planned goal.
2. New members of the HCJ, personnel and disciplinary bodies for judges and prosecutors should be appointed only after a thorough integrity check and a transparent competition with a decisive vote of members of the civil society and international experts (the latter are involved temporarily to ensure confidence in personnel policy).
Parliament is considering two bills to improve the procedure for selecting members of the HCJ and High Qualification Commission of Judges of Ukraine (HQCJ). The Ethics Council provided for in draft law №5068 will check the compliance of candidates for HCJ with the criteria of integrity and professional ethics and will recommend at least two candidates for each vacant position of HCJ member to the appointing entities .
A draft law №3711-d recommended by the parliamentary committee at the end of April 2021 is designed to restart the competition for HQCJ. The draft law provides for a tender commission with international participation to conduct all stages of the tender, the winners of which will be appointed by the HCJ. However, to a large extent the results of the competition will depend on the HCJ and the judiciary community, and therefore the new composition of the HQCJ may not act as an agent of change.
On June 29, the Parliament passed the law 3711-d which provides for amendments to the Law "On the Judiciary and the Status of Judges", according to which it is planned to restart the High Qualifications Commission of Judges with a crucial role of international experts.
At the same time, none of the bills provide for the involvement of civil society representatives in the selection of candidates for the HQCJ and HCJ, although, especially after the mandate of international experts has expired, such participation is necessary to ensure public confidence in the competition.
The issue of establishing a separate disciplinary body to consider disciplinary cases against judges is also being discussed.
At present, the disciplinary powers and the function of selecting new prosecutors have been transferred to the personnel commissions set up by the Prosecutor General. Representatives of civil society, delegated by international partners, take part in the work of such commissions.
3. Judges and prosecutors delegate their representatives to these bodies not through intermediaries, but by direct electronic voting from among those who have been pre-screened with the participation of the civil society and international experts.
The bill concerning the introduction of a remote congress of judges, in which all judges will be able to participate, is being considered by the Parliament. It is proposed to elect, in particular, members of the HCJ and the Council of Judges at such congresses. If this mechanism is introduced simultaneously with the proposed draft law №5068 (but improved!) by the preliminary competitive selection of candidates for HCJ, it will allow to achieve the implementation of the recommendation.
No similar mechanisms have been proposed for prosecutors.
4. By introducing a new law, to create an anti-corruption chamber in the High Court, the selection of judges to which will take place according to the rules of selection of High Anti-Corruption Court of Ukraine (HACC) judges with the involvement of international experts.
No action has been taken yet.
5. To create the Supreme Administrative Court for consideration of administrative cases of national importance at the first instance.
Presidential bills on the limitation of exclusive jurisdiction of the KDAC by transferring cases on appeals against regulations of central authorities to the jurisdiction of the High Court, as well as the draft law on liquidation of KDAC and the creation of the Kyiv City District Administrative Court instead, are under consideration of the Parliament. These bills are not sufficient for a comprehensive solution to the problem of the capital's administrative court and only partially fulfill the obligation before the International Monetary Fund.
The Strategy of development of the justice system and constitutional justice for 2021 – 2023, approved by the President of Ukraine, provides for elaboration of the issue of expediency of creation of a higher specialized court for consideration of administrative cases, which will include central executive bodies and other state bodies, whose jurisdiction extends to the whole territory of Ukraine.
Although the transformation of one court into another without changing the approach to its functioning will create a chance to clean the judiciary, yet still, it will further deepen the problem of excessive workload on this court, due to the presence of the central government in its jurisdiction. Therefore, the reorganization changes should be more comprehensive: KDAC and Kyiv (region) district administrative court should be replaced by new courts of two levels - district - for Kyiv and the region - and the Supreme Administrative Court - for cases involving state bodies of all-Ukrainian level. The Supreme Administrative Court should be formed according to the procedure of selection of judges of the High Anti-Corruption Court.
6. To introduce a classic jury trial, where jurors decide the guilt of a person, as well as magistrates in local communities as an alternative to litigation.
Since 2020, several packages of bills on the introduction of the classic jury trial have been under consideration by the Parliament - from the MPs from the Servant of the People faction (№№ 3843, 3844, 3845) and government’s bills № 4190, 4191, 4192, which are not considered even in the first reading. There are no legislative initiatives to introduce the institution of magistrates.
7. To overcome the practice of prolonged stay of the same persons in the positions of chairpersons of the courts.
The introduction of mechanisms to overcome this practice is envisaged by the project of the Anti-Corruption Strategy for 2020-2024, approved in first reading in November 2020, but no legislation in this regard has been adopted.
8. To introduce competitive selection for judicial positions in courts of all levels with the involvement of lawyers and scholars in competitions.
Competitive selections in 2020-2021 were not conducted due to the absence of HQCJ. Prior to that, the newly formed courts of appeal were formed not through a competition process, but by transfer of the current judges.
9. To determine the mechanism of realization of the duty of judges and prosecutors, as well as candidates for these positions to prove the legality of the origin of property, non-fulfilment of which is the basis for dismissal (rejection of the candidacy).
The introduction of such a mechanism for judges and their relatives is envisaged in the draft Anti-Corruption Strategy.
10. To strengthen the transparency of qualification assessment procedures by introducing the possibility of reviewing individual decisions of the previous composition of the HQCJ.
No action has been taken yet.
11. To determine the grounds for deprivation of the status of a retired judge, dishonest behavior of a retired judge, which has damaged the authority of justice.
Strategy of the development of the justice system and constitutional justice for 2021 - 2023 requires to establish additional grounds for terminating a judge's resignation, in particular in the event that he/she commits actions which defame the title of a judge or undermine the authority of justice. However, the implementation of this amendment requires legislative changes.
12. To simplify and translate into electronic form the processes of document circulation in the courts
In April 2021 the law, which will allow the gradual introduction of the Unified Judicial Information and Telecommunication System was adopted. On June 1 the bill on the introduction of information and telecommunication system of pre-trial investigation, which would optimize the work with the materials of criminal proceedings was adopted. The law should be enacted on December 15, 2021. By this time, a provision on the procedure for the functioning of the information and telecommunication system of the pre-trial investigation must be approved.
13. To make e-court a part of the "state in a smartphone" concept.
First for the period quarantine, and later on a permanent basis, the Parliament gave the opportunity to participants of non-criminal cases to participate in the hearing by videoconference using their own technical means, which certainly simplifies access to justice. However, this is only a small part of the expected e-court concept.
14. To introduce the possibility of hearing certain categories of cases online, regardless of the location of the parties and the court, which will also contribute to the even distribution of cases among courts and judges.
The introduction of such a possibility is envisaged by the draft Anti-Corruption Strategy, but bills to implement this in practice have not yet been introduced.
15. To introduce less formalized, more understandable and simplified court procedures if that does not impair the guarantees of judicial protection.
No action has been taken yet.
16. To introduce a legally defined mechanism for reviewing sentences against arbitrarily sentenced to life or other long-term imprisonment according to a specified criterion.
In February 2020 the bill with such a mechanism was submitted to Parliament, but it was never considered and a year later it was withdrawn from consideration. In addition, in March 2021, the Parliament adopted in first reading bills (№№ 4048, 4049), which established a mechanism for mitigation of punishment in the form of life imprisonment, with the possibility of parole of persons to whom such punishment was mitigated.
17. Institutional improvement of the quality of legal education with the refusal to educate the lawyers in militarized departmental educational institutions.
In April 2021, a sectoral parliamentary committee supported draft of the Concept for the Development of Legal Education and sent it to the Commission for Legal Reform for approval and submission to the President for approval.
The revised Concept for the Development of Legal Education decided not to completely abandon the training of lawyers in militarized departmental institutions, limiting itself to indicating that higher education is carried out according to uniform rules in all educational institutions, regardless of ownership and management, taking into account the peculiarities of training in departmental institutions.
In addition, according to the Government's decision from January 2022, the Ministry of Internal Affairs will be responsible for conducting the Unified State Qualification Exam for Masters of Law, along with the Ministry of Education and Science, which indicates that militarized departmental institutions will continue training the lawyers in the near future. The independent evaluation of law graduates shows that militarized departmental institutions do not provide a high level of legal education, but the large amount of funding they receive from the state budget allows them to attract a large number of students with low quality of educational services.
Section 2. The current major challenges in implementation of the reform (at the time of monitoring)
Despite the fact that the President Volodymyr Zelensky systematically states the need for effective judicial reform, he approved the official strategyof its implementation only in the third year of his presidency. The strategy is a very vague, sometimes eclectic document, which does not commit to clear achievable results, indicators and deadlines, but rather outlines the directions of possible changes that can be implemented both in the interests of society and with disregard of those.
The issue of judicial reform has been repeatedly raised by international partners, who have even provided recommendations on specific areas of its implementation and consider judicial reform as a key factorfor Ukraine's transition to a new level of European integration. In addition, some of its specific measures, such as HCJ and HQCJ reforms, are part of Ukraine’s commitments to International Monetary Fund and European Union.
The lack of a clear plan for judicial reform has led to fragmentary, uncoordinated, contradictory and so far ineffective legislative steps. Consideration of important legislative initiatives in Parliament under the influence of oligarch-controlled MPs remains ineffective. It seems that only the motivation of international partners and public demand forces the authorities to demonstrate (imitate?) efforts to carry out the judicial reform.
It is also erroneous to bet on reform by entities in the judiciary that are the least interested in such reform and have already proven it in practice.
It is also important to pay attention to a number of resonant decisions of the Constitutional Court adopted in 2020, which significantly undermined the accountability of the judges. In such a way, in June the criminal liability of judges for making a knowingly unjust decision was declared unconstitutional, and in October- Punishment for providing false declarations of public officials and a number of key control powers of the National Agency on Corruption Prevention. The court motivated its decisions mainly by the fact that these institutions encroach on judicial independence. Such a broad interpretation of judicial independence by the Constitutional Court in the long run may lead to the strengthening of judicial impunity and bail, and thus to corruption in the judicial environment, and risks imposing unconstitutional legislative changes to clean up the judiciary.
Section 3. Recommendations on reform priorities for 2021-2022 (next annual period, until URC 2022)
The monitoring revealed that no significant progress was made in the area of judicial reform during 2020-2021 (the mark “partially done” mostly means only the presence of bills that in one way or another correspond to the relevant recommendations). The recommendations provided for priority actions for 2020-2021 remain relevant in the future.
The priority steps of judicial reform in the near future should be:
the reform of the judiciary - the HQCJ and the HCJ - primarily in terms of the procedures for selecting and verifying their members, with the crucial role of international experts to ensure the integrity of such members; without asserting the independence and integrity of these bodies, any judicial reform is doomed to failure;
reorganization of judicial bodies in order to solve the problem of KDAC - creation of one district administrative court for Kyiv and Kyiv region and creation of the Supreme Administrative Court - for consideration at the first instance of disputes including the state bodies of central level;
approval and implementation of a new Anti-Corruption Strategy, which contains urgent measures to promote integrity and fight corruption in the judiciary.