TOP 3 achievements of judicial reform to know about

Sep 27, 2018 | Justice

Volodymyr Manko, politics expert

Original in Ukrainian: Обозреватель

For more than two years, the Ukrainian justice system has been living in a different dimension. On June 2, 2017, in spite of fierce opposition, the historic amendments to the Constitution were adopted regarding the judiciary. Thanks to them today we are seeing significant changes happening in real life. These changes take place structurally - at the legislative, institutional, and staffing levels. International experts repeatedly praised such a systemic and effective approach to the judiciary reform in Ukraine. Despite this, the media tend to outcry “zrada” when speaking about this reform, which, although encourages the reformers to perform better, also undermines the trust of citizens. For this purpose, accents are deliberately shifted, and distorted information is provided. Here one should weigh carefully whose opinion is more reliable: either the one of young and ambitious “experts” or the one of experienced and unbiased representatives of the European institutions who are rather reluctant to waste words.

“Ukraine has already done a great job in the field of the judiciary reform. We support all these changes. We all know that nothing is ideal, but we need to strive to get as close as we can. What I recommend to Ukraine is to continue in the same direction,” says regarding the judiciary reform the President of the Venice Commission Gianni Buquicchio.

What changed the judiciary reform in general? Legislators note that the changes happened in three key areas: independence, responsibility, and prevention of corruption. In particular, the implementation of those principles required legislative amendments, changes in the composition and scope of powers of the institutions responsible for judicial careers, introduction of the instrument of judicial declarations, and the publicity of all processes, as well as the purification of the entire court corps.

“Legislative amendments allowed harmonizing Ukrainian legislation with European standards of the judiciary. I am grateful to the Venice Commission and Mr. Buquicchio for their active cooperation and full support of the constitutional ammendments, including by the Council of Europe,” says President of Ukraine Petro Poroshenko.

What has been done for the sake of the judicial independence

Today, no political body influences the judicial system. The point is that the Parliament is no longer responsible for the appointment, transfer, or dismissal of judges, and the president - solely on the basis of a submission from the High Council of Justice (hereinafter – HCJ), plays a purely ceremonial role which is to sign the decree. By the way, the sole ground for him not to do so would be the relevant submission of the High Council of Justice, which is the main constitutional body responsible for the judicial career. This body meets sustainable European practices and recommendations of international institutions. It is the only body that makes decisions regarding the appointment, dismissal, or disciplinary liability of judges. The reform also abolishes the five-year appointment of judges.

“Among many changes in the area of justice, the judiciary reform also stipulates more rigorous liability of judges for violating the rules of ethics or other serious misconduct. The discipline in the judiciary is overseen by the High Council of Justice – that is where one may complain about dishonest judges,” says Team Leader of the EU Project “Support to Justice-related Reforms in Ukraine “Pravo-Justice” Dovydas Vitkauskas.

What has been done in the area of responsibility of the judiciary

Courts are now formed or liquidated only on the basis of law. There are clear grounds for disciplinary liability of judges. The principle of judicial immunity is interpreted in a reasonable manner, thus applied exclusively in the framework of professional activities. All judges are equal before the law in the same way as any citizen, which increases their responsibility.

Last year, the renovated High Qualification Commission of Judges of Ukraine held a public and transparent contest for judicial positions in the new Supreme Court. This was a historic process by where the whole judicial instance was reshuffled by way of the competition. New people came in – lawyers and scholars who never worked before in the judicial system. Judges of lower courts who could not ever dream of a position at the highest court overcame many judges of higher courts in a fair contest, and became justices of the Supreme Court. The new court has been operating for eight months, despite the fact that judges of the former Supreme Court of Ukraine constantly hinder their work. Some impressive decisions have been passed and become precedents. The new court protects the right of people living in the ATO area to receive their pensions, the rights of pregnant women on maternity leave, the right of consumers of goods and services to go before court at all instances without being obliged to pay any court fee, as well as the rights of foreign shareholders to be protected from illegal takeovers etc.

Lawyers point out that the new court operates I full compliance with public expectations and gives an example of high-quality justice.

What has been done to prevent corruption

Currently, the HQCJ is very busy with the qualification evaluation of 5700 judges. Each judge must be assessed against the criteria of integrity, competence, and professional ethics. Such a process has no precedents in Europe. Not only judges make tests and draft decisions to confirm their professionalism, but also pass interview on the basis of their dossier with the HQCJ members and answer in person the questions about property and issued judgments.

“We support the HQCJ in what they are doing. Their job is very difficult and requires a lot of effort. We assume this procedure, because it is necessary and is designed to ensure public confidence in the judiciary,” said Gianni Buquicchio.

“We need help in order to make those who either discredited themselves, or are too tired, or do not want to work properly – leave the judiciary. Today they are more than 2,5 thousand – more than 30% of judges have already opted for quitting the judicial system. New people who will come will defend Ukrainians, justice, and law,” said President of Ukraine Petro Poroshenko.

While previously no judge could be detained even at the crime scene, until the Verkhovna Rada gives the consent to his detention, currently if a judge caught in flagrant delict during or immediately after committing a serious crime, no consent is required at all. In other cases, the High Council of Justice should give consent to the detention of a judge. Immunity is limited solely to administration of justice. “Many are jealous of Ukrainians,” said Rimvydas Norkus, President of the Supreme Court of Lithuania, at the conference in Vilnius. According to him, what was done in Ukraine over the last years never happened in any other country. “That is what other countries shoud try to achieve,” he said.

“Independence, responsibility of each judge, and absence of corruption are the key underlying principles of the new judicial system in Ukraine. The steps that we have done for the depoliticization and strengthening of the judicial independence have already brought about the very first significant outcome,” says the President of Ukraine Petro Poroshenko.

The reset of the judiciary implies an ambitious, comprehensive, and long-term approach. There is no quick success – only step by step progress.

The main point is that the success of such changes does not depend exclusively on either Presidential Administration, or Verkhovna Rada, or Cabmin, or court. European standards of justice say that some changes will happen not when the Parliament or the Verkhovna Rada amend the constitution or legislation, but rather when there will be a change in the mindset of judges but even more important Ukrainian citizens. Legislators argue that social consciousness shall be in place to allow people accepting properly legitimate and just decisions, even if not in their favor, with respect and trust in the court. That is when we get really European standards in the area of justice.