When it comes to judicial authorities, the Ukrainians have almost the same associations – skepticism, distrust, and sometimes disappointment. It is not surprising because, despite the fact that the courts are a separate branch of power, their independence was almost always neglected by the “judges” themselves: either deputies, or presidents, or oligarchs, or those who have more money in their pocket “to get things done”.
The history of the courts reforming dates back even before Ukraine’s independence. In particular, the Declaration on State Sovereignty of 1990 consolidated the provision that state power in Ukraine is exercised through the division into legislative, executive and judicial. After independence, in 1992 the Parliament approved the Concept of judicial reform in Ukraine, which was aimed at establishing a truly independent court and implementing its specialization, adopting new legislation, and, the most important – ensuring citizens’ right to a fair trial. Before the adoption of the new Constitution in 1996, the Verkhovna Rada of Ukraine managed to adopt only a number of laws, which partially ensured the functioning of the court.
Only 2001 was the beginning of the first judicial reform in Ukraine, which in pundit circles was called “small” since changes were adopted not by means of new complex laws on the judicial system, but by the minimal changes to the existing legislation. At the same time, during a year the Parliament has barely adopted a new law “On the Judiciary of Ukraine”, and in 2004-2005 deputies even managed to adopt a new Civil Procedure Code (to replace the Code of 1963) and the Code of Administrative legal proceedings of Ukraine. However, all these changes have had no effect. Public distrust increased.
The next President of Ukraine Viktor Yushchenko picked up the baton of changing the judicial system, who in 2006 has declared his intention with the Concept for improving the legal system to ensure a fair trial in Ukraine in accordance with European standards. Actually, this document ended on the bookshelf because no changes occurred.
Only after Viktor Yanukovych came to power, the court system has undergone significant changes and was controlled by Bankova. The court system сhanges in 2010 have become evident, but their ultimate goal was completely different from that required by society. In particular the realization of the right to a fair trial. The Law “On the Judiciary and the Status of Judges” ignored international standards and aimed to create a court dependent on the state’s key persons. Europe condemned the negative aspects of Yanukovich’s judicial reform, in particular, the European Court of Human Rights (the case “Alexander Volkov v. Ukraine”).
The courts continued to mire in corruption schemes. Court bureaucracy became routine for Ukrainians, as the proceedings could have lasted for years, mutual responsibility was legalized, resulting in the judges, prosecutors and law enforcement agencies cooperated not for the implementation of the principles of the rule of law but for the benefit of the interested persons. The Institute of public trust in the courts gradually leveled off.
At the time of the Revolution of Dignity, the juridical branch once again confirmed its absolute dependence on the regime and approved verdicts depriving the liberty without a reasonable evidence base, deprived activists of driving licenses; throughout Ukraine judges prohibited peaceful assemblies, that provoked even greater distrust.
However, even after the overthrow of the regime, it is not so easy to eliminate the effects of Yanukovych’s pseudo-reform, because the resistance to the old political elite is still felt and, at the same time, there is the inexpugnable desire of the new government to take advantage of the “manual” justice for their own needs. Therefore, in 2014-2015 there were only certain piecemeal changes that did not produce a placebo effect.
At the same time, the new government in the person of Petro Poroshenko is putting judicial reform at the forefront in his “Strategy 2020”. For this purpose, he even created a special Judicial Reform Council, headed by Oleksiy Filatov, the Deputy Head of the Presidential Administration of Ukraine. The chosen pace of judicial reform in 2015 needs to be more dynamic. The only change of that year was the adoption of the law “On ensuring the right to a fair trial.” Besides, delaying and flagrant disregard by the Parliament for the appointment/dismissal of about 800 Yanukovych’s judges has cost Ukrainians about UAH 250 thousand a day. According to the international human rights organization Freedom House, over the past 8 years, the effectiveness and independence of the Ukrainian judicial system has deteriorated or rather stuck at the 2013 level.
In 2016, the GFK research commissioned by the USAID “Fair Justice” project, once again revealed that 69% of Ukrainians do not trust the judicial authorities. However, there is rather high society’s demand for cleaning the judiciary. Moreover, foreign investors have emphasized that the main obstacles to investments in Ukraine are large-scale corruption and distrust of the judicial system. This is evidenced by the results of the poll conducted by the investment company “Dragon Capital” and the European Business Association on the eve of the judicial reform in 2016.
Changes were inevitable.
Key bodies responsible for the implementation of judicial reform
The Supreme Council of Justice (formerly the High Council of Justice, the law of December 21, 2016) – a new collegiate, independent, constitutional body of state power and judicial administration in Ukraine, which has the final decision in the dismissal of judges, and upon its recommendation the President appoints judges.
The High Qualifications Commission of Judges (HQCJ) is a state body of judicial administration responsible for the formation of judiciary establishment, the transfer of judges, and ensuring their proper qualification level.
The Public Council of Integrity is a public collegial body created to assist the HQCJ in determining the suitability of judges (candidate for the position of a judge) for the criteria of professional ethics and honesty with the purpose of qualification assessment.
The National School of Judges is a state institution with a special status that provides training for highly skilled personnel for the judicial system and conducts research activities.
The State Judicial Administration of Ukraine is a body of judicial power that carries out the organizational and financial provision of the legal authorities within its authority limits.
A three-level judicial system of Ukraine:
The first instance – the district economic courts, district administrative courts, district general courts, the Supreme Court on Intellectual Property, the Supreme Anti-corruption Court.
The second instance – commercial courts of appeal, administrative courts of appeal, general courts of appeal.
The third instance – the new Supreme Court, which consists of 4 cassation courts: commercial, civil, criminal, administrative.
What does the reform envisage?
• To create a truly independent judicial branch of power, henceforth judges will be appointed by the President upon submission of the High Council of Justice;
• Turn the four-level judicial system into three-level, creating local courts – appellate courts, the new Supreme Court, which includes the Grand Chamber, the Administrative Court of Cassation, the Commercial Court of Cassation, the Criminal Court of Cassation, the Civil Court of Cassation). All other higher courts – the economic, administrative, specialized court for civil and criminal cases are liquidated, the specialization of legal proceedings remains;
• The introduction of a competitive selection of judges according to new qualification requirements to judges (a judge shall be a citizen of Ukraine, who is not younger than 30 years old and has 5 years of experience in the field of law, assistants of judges with 3 years of experience can also become a judge). From now on, professionals outside the system with an appropriate work experience may become higher-level judges, and appointments are perpetual;
• Filling by judges the declaration of integrity and declarations of family ties;
• Creation of a Public Council of Integrity;
• Creation of the Higher Anti-corruption Court and the Intellectual Property High Court;
• New procedure for the establishment of the High Council of Justice;
• Restrictions on judicial immunity, in particular, a judge caught in a serious crime, may be detained without the consent of the Parliament and the High Council of Justice;
• Judges’ remuneration significantly increased;
• Expansion of grounds for judges’ dismissal (if the illegitimate source of their property is proved);
• Enlargement of the grounds for disciplinary liability of judges, qualification assessment;
• Constitutional complaint – henceforth any citizen of Ukraine may apply to the Constitutional Court;
• The gradual introduction of lawyer’s monopoly on representation in courts.
Realization of judicial reform: the current situation
Fact 1. Filtering of the Judiciary staff. After the adoption of new legislation on the judicial system, the Ukrainian Themis experienced significant personnel losses. The massive resignation of judges began. Only in July-August 2016, about 1,000 judges have filed letters of resignation, which were approved by the Parliament in September. Probably the judges tried to avoid anti-corruption checks and re-certification. Besides, resignation provides judges with lifelong financial allowance.
Fact 2. Dismissal for oath breaking. Judicial reform has officially begun on September 30, 2016. On September 29, the Parliament met in an extraordinary session to dismiss 20 judges who took decisions against the Maidan activists. Among the dismissed judges there were Judge Svitlana Volkova (released the “berkut” officer Sadovnik, who is suspected of murdering 39 Maidan activists), Alla Demydovska and Andriy Makukha (they made a decision on activists’ detention). The President of Ukraine supported the trend of filtering the Judiciary from unjust judges by signing the release of Oksana Tsarevych, an odious judge in times of the Revolution of Dignity.
Fact 3. An attempt to block the reform. It is impossible to ignore the fact that after the start of judicial reform, judges of the current Supreme Court of Ukraine appealed against it to the Constitutional Court of Ukraine. In particular, they appealed against the liquidation of the current Supreme Court of Ukraine and the fact that judges appointed for life, should pass the competition. But the most interesting thing is that despite the appeal of judicial reform, they still applied for the contest to the new Supreme Court.
Competition to the Supreme Court
On November 7, 2016, the High Qualifications Commission of Judges announced a competition for the replacement of 120 vacant positions in the new Supreme Court. According to optimistic forecasts, the Supreme Court should have been started its work in April this year, but the process was delayed. It is noteworthy that the nominees for the positions of judges could be professionals outside the system, including lawyers and scholars.
846 candidates submitted their documents for the participation in the contest to the Supreme Court, and more than 60% of which are current servants of Themis. After the examination, 653 candidates continued their participation in the competition. Afterward, candidates were expecting for an individual examination (in particular by anti-corruption authorities).
In February, 643 candidates passed anonymous testing and wrote a practical part (a court decision). The examination of the case study of the judges significantly delayed the contest to the Supreme Court. During this period, NGOs picketed the HQCJ for them to release a dossier of candidates.
Even after the publication of the results of the written practical part of the competition to the Supreme Court the HQCJ could not escape manipulations. As the points for the practical part of the competition were not high, they decided to summarize them with scores for anonymous testing. Thus, another 44 candidates received a “new lease of life” for participation in the competition. 382 candidates have passed moral and psychological tests, while neither the practical work nor the methodology of their assessment was not released by HQCJ, which gives a reason for doubts in the transparency of the competition.
It should also be noted the importance of the work of the Public Council of Integrity, which analyzed activity, lifestyle and the candidates’ income, and assessed integrity according to the rules of judicial ethics. Out of the 382 candidates who were admitted to interviews, 140 of them received a negative conclusion, which means public’s “veto” to their further participation in the competition. After the interviews with the candidates, the HQCJ agreed only with 25 negative conclusion of the Public Council of Integrity, which means that these candidates automatically stopped their participation. A total of 308 applicants were successfully interviewed, and 115 of them received negative conclusions of the Public Council of Integrity.
The HQCJ considered the cases of these candidates in plenary meetings, where members of the HQCJ should get 11 out of 15 votes to overcome the conclusion of the Public Council of Integrity. The HQCJ does not support the conclusions of the Public Council of Integrity since only 16 out of 69 already examined candidates have ceased their participation; others will be included in the general ranking. Candidates who rank first are likely to become new judges of the Supreme Court. Therefore, one should not be surprised if only the “ minor repairs” will be carried out in the new Supreme Court, since the actual chances of becoming a judge still have the current chairman of the Supreme Court Yaroslav Romanyuk (stood up for draconian laws on January 16), the Head of the council of judges Valentyna Symonenko (known for her ties with Occupied Crimea, and being on the post of Head of the Council of Judges counteracted judicial reform), as well as Judge Pavlo Vovk (who has close ties with political circles, especially with Serhiy Kivalov and the curator of the legal system from the Petro Poroshenko Bloc – Oleksandr Hranovsky).
Unfortunately, there is no common vision of how the work of the new Supreme Court will look like and how the court cases will be handled because the Parliament delayed the consideration of the new procedural codes, in which the key points of transition to the three-level judicial system should have been outlined.
The selection of judges for 600 vacant posts
Starting from April 2017, the HQCJ announced the selection of candidates for local court judges. Since the judicial authorities have a significant shortage of Judiciary staff (one-third of justiceships are vacant) and about half of the courts are understaffed, dragging on the litigations and becoming irrelevant, the selection of new judges is extremely important. However, there are a few admonitions.
Despite the fact that lawyers above 30 years of age with 5 years of experience in the field of law can take part in such a selection, which envisages an upgrade of the judiciary, in fact, deputy judges above 30 years old with 3 years of experience in this position take part in the same selection. Interestingly, both categories of candidates must be selected and trained at the National School of Judges. The biggest manipulation is hidden in the fact that deputy judges will study at the school of judges only for 3 months, they say they have a much better understanding of the judiciary, and lawyers – for 12 months including training in courts and independent work. According to many experts, such unequal access to the judiciary and the long process of the contest may hamper the rapid renewal of the judiciary, which is so much expected by the society.
CHESNO movement, CHESNO campaign. Filter the judiciary!
Centre of Policy and Legal Reforms
All-Ukrainian Public Organization “AvtoMaydan”
Judicial group of the Reanimation Package of Reforms
Center for combating corruption
Timeline of judicial reform since 2014:
April 8, 2015 – The Verkhovna Rada approved the law “On restoring confidence in the judiciary” (law on lustration of judges)
2014-2015 – functioning of the Interim Special Commission for the Verification of Judges of General Jurisdictions of the High Council of Justice. The commission was created within the framework of the law “On restoring confidence in the judiciary”.
October 27, 2014 – President Petro Poroshenko created the Judicial Reform Council, which was supposed to develop the necessary laws to launch the judicial reform.
February 12, 2015 – The Verkhovna Rada adopted a law “On ensuring the right to a fair trial”.
June 2, 2016 – the law “On the Judiciary and the Status of Judges” and the amendments to the Constitution in terms of justice were adopted.
July-September 2016 ¬- purification of the judiciary (341 judges were released for oath breaking, 1320 voluntarily resigned) / renewal of the judiciary (218 judges appointed by the President)
September 30, 2016 – launch of judicial reform through amendments to the Constitution in the sphere of justice
November 7, 2016 – Competition to the Supreme Court has began
On November 11, 2016 – the Public Council of Integrity was formed
November 2016 – judges began to fill out the declaration of integrity and the declaration of family ties
November 17 – December 9, 2016 – submission of candidates’ documents to the Supreme Court
November 18 – December 16, 2016 – Checking the compliance of candidates’ documents
December 21, 2016 – the Law “On the High Council of Justice” was adopted.
December 22, 2016 – February 6, 2017 – Special examination of candidates for the Supreme Court
February 16, 2017 – anonymous testing of candidates for the Supreme Court – the first stage of the written part of the competition to the Supreme Court
February 21, 2017 – Practical work – the second stage of the written part of the contest to the Supreme Court, on which the candidates write a court decision
February 22 – March 28, 2017 – Verification of the practical part by the members of the HQCJ
April 3, 2017 – The HQCJ announced the selection of candidates for the positions of local court judges
The beginning of April 2017 – testing of moral and psychological qualities of candidates for the Supreme Court, interviews with psychologists
April 17 – May 16, 2017 – Candidates for the positions of local court judges could submit their documents for participation in the selection (5336 candidates)
April 21 – July 12, 2017 – interviews with the candidates to the Supreme Court, and holding plenary sessions with the candidates who received the negative conclusions from the Public Council of Integrity
June 20, 2017 – The Verkhovna Rada of Ukraine adopted the first reading draft amendments to the procedural codes