Successful Judicial Reform is Impossible without the Involvement of all Stakeholders

The government’s policy on judicial reform from September 2019 can be described as unsystematic, ineffective and unpredictable. Roman Kuybida, Deputy Chairman of the Board of the Centre for Political and Legal Reforms, co-author of the sectoral brief “Judicial reform” during the presentation of the document, began his speech with this.

“The level of trust in the courts remains extremely low. The bodies entrusted with the implementation of the reform – the High Qualification Commission of Judges (HCCJ) and the High Council of Justice (HCJ) – did not show due initiative. And some of their actions can even be considered sabotage,” said the expert.

He called the introduction of electronic services in courts due to the COVID-19 coronavirus pandemic a positive change recently.

In a short period, what could not be done for years was introduced,” says Kuybida.

Current issues in judicial reform identified in sectoral brief:

• low level of trust in the judiciary, which is primarily caused by corruption and influence practices, unconscionable behaviour of many judges, dependence and clientelism;
• ineffectiveness of activities and even sabotage of reforms by the HCJ by the majority of its judges, whose activity enhances the public perception of the prevalent corruption and clientelism in the judiciary;
• the failure of the HCJ and the previous composition of the HCCJ to implement the policy of clearing and renewing the judicial bodies; failure to form a new composition of the HCCJ, which halted the processes of competitive selection, transfer and evaluation of judges;
• inconsistency in the process of reorganization of local courts and courts of appeal, filling vacancies not through competitions, but by transferring existing judges to new courts;
• poor access to justice due to the lack of staff in the courts, heavy workload on judges and the prevalence of judicial red tape;
• the courts’ poor focus on meeting the needs for justice for participants of the judiciary processes, and the lack of electronic services.

Recommendations for priority actions in 2020-2021:

• continuation of the started projects, which have the potential to become successful, with the work on mistakes (in particular, rebooting the HCCJ and HCJ, independent preliminary assessment of the candidates to these bodies; competitive selection for judicial positions in courts of all levels, involving lawyers and scholars; evaluation of judges; introduction of electronic judiciary, institutional improvement of quality of legal education with refusal to prepare lawyers in militarized state educational institutions);
• supporting the agents of change; creating new institutions instead of supporting old ones;
• involvement of the public and international experts in ensuring confidence in the reform process and its results;
• service orientation of the courts.

Projects of necessary reforms:

1. New governing judicial bodies as the agents of change. HCJ staff is cleared by the Integrity and Ethics Commission, and if the goal is not met – the constitutional changes should create a new body with a majority (at least for a transitional period) of members from the civic society with impeccable reputation. New members of the HCJ, staffing and disciplinary bodies, and prosecutors are appointed only after careful scrutiny of integrity and a transparent contest with a decisive vote by members of the public and international experts (the latter are engaged on a temporary basis to ensure credibility of the staffing policy). Judges and prosecutors delegate their representatives to these bodies not through intermediaries, but through direct electronic voting among the candidates, who pass pre-screening with the participation of the public and international experts.

2. New judicial institutions. In the Supreme Court, the law establishes an anti-corruption chamber, the selection of judges to which is carried out under the rules of selection of judges to HCCJ with the involvement of the Public Council of International Experts. The Supreme Administrative Court is created to consider administrative cases of national importance in the first instance. A classic jury trial should be introduced, where jurors make decisions about a person’s guilt, as well as magistrates in territorial communities as a solution alternative to judicial disputes.

3. Monitoring of the integrity of judges and prosecutors as a mechanism for accountability. There is a need to determine the mechanism for exercising the duties of judges and prosecutors, as well as the candidates for these positions, to prove the legality of the origin of property, non-performance of which should be the ground for dismissal (rejection of the candidature). The transparency of qualification assessment procedures should be enhanced with the possibility of reviewing the decisions of the previous composition of the HCJ. Inappropriate conduct by a retired judge who has prejudiced the authority of the justice may be the ground for his/her deprival of the status of a retired judge.

4. Electronic court and the de-bureaucratization of litigation. Document flow in courts should be simplified and transferred into electronic form. The electronic court should become a part of the “state in the smartphone” concept. Hearing of the certain categories of cases online, regardless of where the parties and the court are located, should also facilitate the even distribution of cases between courts and judges. Court procedures should become less formalized, more understandable and simplified provided that it does not impair the guarantees of judicial protection.

5. Hearing renewal mechanism for crimes not committed by the convicts. Convicts unlawfully sentenced to life imprisonment or other long-term imprisonment, should be provided with a statutory mechanism for reviewing the judicial decisions against them based on the defined criteria.

To review the cases of arbitrarily convicted persons, the draft law №2033-a “On Amendments to the Criminal Procedure Code of Ukraine” was developed even earlier. This draft law has received a positive opinion of the Council of Europe and does not contradict the European Court of Human Rights, says Oleksandr Banchuk, Deputy Minister of Justice.

He called the introduction of a jury trial another essential aspect of judicial reform.

“We are finalizing the approval of the draft jury trial in the classic form in cases of particularly serious crimes,” the deputy minister explained.

Another initiative of the Ministry of Justice is to protect victims from violent criminal offenses.

“The relevant bill had to be withdrawn due to the resignation of the previous Cabinet, but now we will re-introduce it,” Banchuk predicts.

According to him, the Ministry of Justice is also focusing on alternatives to classical justice: a draft law on mediation is being prepared to reduce the burden on the courts.

Judicial reform, which began several years ago, was never completed before the current Verkhovna Rada took office. But the positive aspects are the formation of the judiciary of the Supreme Court and the Supreme Anti-Corruption Court. This was stated by Roman Babiy, a member of the Verkhovna Rada Committee on Legal Policy.

“Changes need to start from the top – that’s why the Verkhovna Rada of the current convocation passed a law” On Amendments to Certain Laws of Ukraine on the Activities of Judicial Governments “, which provided for the reset of the HCCJ,” – MP explains.

But the Constitutional Court declared this law unconstitutional and the HCCJ was not restarted.

“The procedure for forming the HCCJ will be replaced, taking into account the remarks of the CCU,” Babiy promises.

He also stated the inefficiency of the State Judicial Administration (SJA).

“We are discussing the possibility of transferring the issue of court administration to the HCJ,” the MP summed up.

According to Taras Tarasenko, a member of the Verkhovna Rada Committee on Human Rights, Deoccupation and Reintegration of Temporarily Occupied Territories, judicial reform should involve all its stakeholders, including judges.

Another critical issue is the communication of this reform.

“Ordinary citizens consider almost all judges corrupt. This hurts the psychology of honest judges,” the MP said.

A decisive moment in the formation of the judiciary of the Supreme Court and the Supreme Anti-Corruption Court was the participation of public and international experts in this process. Sviatoslav Tkachuk, Legal Adviser, USAID Justice Sector Reform Program, draws attention to this.

He suggested that the Venice Commission be involved in drafting a new bill to reform the HCCJ so that it could make recommendations not to the already adopted law, but to its draft.

There is a misunderstanding between judges and civil society about the need for judicial reform, says Larysa Holnyk, a judge at the Oktyabrsky District Court in Poltava.

“Judges often defend the current system, not seeing the need for change. And society considers judges to be representatives of “revenge”. Unfortunately, few judges are ready to express their position on the importance of reforms publicly,” Golnyk explains the situation.

According to her, the HCJ should not select judges, as the system is not capable of self-cleaning. External selection with the involvement of international experts is required.

“If we see HCJ members with people with a perfect reputation, can we trust them? Obviously not,” the judge asks rhetorically.

An additional distrust of the HCJ is the lack of transparent disciplinary practice against judges.

Ivan Horodyskyi, director of the School of Law at the Ukrainian Catholic University, drew attention to the professionalism of judges, particularly in the first instance.

“It seems that they are distancing themselves from resolving issues, transferring it to appellate or cassation instances,” Horodyskyi said.

Lyudmyla Chernyavska, Gender Policy and Judicial Administration Coordinator of the Ukrainian-Canadian Judicial Reform Support Project, spoke about the lack of a comprehensive gender approach in judicial reform.

“But we see the first positive steps – the SJA conducted a gender audit with the whole team’s participation. I hope that this practice will be extended to the central bodies of judicial governance and courts,” the expert said.

Denнs Tarasov, an expert with the Zaporizhzhya Human Rights League “Universal”, called the Supreme Court’s orientation on the rule of law a positive aspect of judicial reform. After all, its legal opinions are binding on the courts of first and appellate instance.

Tarasov called the problem of access to justice the size of the court fee, which “for many people is now exorbitant.”

He called the necessary elements of the reform the introduction of the election of judges of local courts and the possibility of their recall, as well as an open register of complaints about judicial violations.

Taras Shevchenko, director of the Centre for Democracy and the Rule of Law and co-author of the sectoral brief, is convinced that the long-term problem of judicial reform is the lack of a permanent stakeholder.

“The center of judicial reform is moving from the Government to the Administration / Office of the President, which means its politicization,” he said, adding that the Government should shape the policy with the involvement of Parliament.

An urgent problem of the reform is the renewal of the GRP: the introduction of effective mechanisms for the dismissal of its dishonest employees and the creation of filters for the selection of new members. This opinion was expressed by Halyna Chyzhyk, an expert at the Anticorruption Action Centre and a reviewer of the brief.

“Volodymyr Zelensky must understand that his future also depends on the effective reset of the HCJ. This can be seen in the example of criminal cases against Petro Poroshenko, who never managed to create an independent judiciary,” the expert concludes.

“Regional Discussion of Reforms” is organized by the RPR Coalition in partnership with the Embassy of the Republic of Lithuania. The event is supported by the Ministry of Foreign Affairs of the Republic of Lithuania and the National Democratic Institute (NDI), with financial support from the United States Agency for International Development.