Kyiv, December 17, 2015. Draft amendments to the Constitution on justice foresee serious transformations that are to lay the groundwork for more effective functioning of the judicial system. This is Ukraine’s fifth attempt to conduct judicial reform. Experts note that this time it has a chance to succeed. “This reform package is radical as it concerns the constitutional status of judges and of judicial power,” noted Natalia Petrova, deputy director of the USAID FAIR Justice Project during a discussion held at Ukraine Crisis Media Center. Virgilius Valancius, Team Leader of the EU Project “Support to Justice Sector Reforms in Ukraine” and an international consultant to the working group on justice within the Constitutional Commission is of the opinion that “the Constitutional draft submitted by the President to the Verkhovna Rada (Parliament) is quite a good basis for further establishing a quality, independent and transparent judicial system”. “The draft opens opportunities for eliminating political influence, simplification of the judicial system and considerable renovation of the judicial corps,” said Roman Kuybida, Deputy Head of the Center for Political and Legal Reforms, chief expert of group on judicial reform with the Reanimation package of reforms (RPR) civil initiative.
A fundamental change foreseen by draft provisions is that neither judicial career progression nor dismissal of judges will depend on the Verkhovna Rada or the President. These powers will be passed to the reformed High Council of Justice while the President will only approve the appointments with his orders. Members of the High Council of Justice will be elected by the congress of judges. Removing the influence of the two other branches of power on the judicial system another key change suggested by the amendments to the Constitution on justice. It has received positive feedback from both experts and judges themselves. Mykola Onyshchuk, Head of the National School of Judges and member of the Constitutional Commission notes that “it would be very hard to talk about further progress” without this step. Valentyna Simonenko, judge of the Supreme Court of Ukraine, head of the Council of Judges of Ukraine and member of the Constitutional Commission reassured that independence of judicial system is not going to lead to a lack of responsibility. New laws foresee disciplinary liability of judges including fines and removal from the office. Virgilius Valancius noted that this mechanism will also foresee checks on whether the lifestyle of judges matches the income that they declared. Other monitoring elements include requirements to have all trials held openly and all court decisions published in the unified registry.
Transition from the four-level judicial system to a three-level one is foreseen. “In a majority of European states the functions of the court of cassation are being implemented not by four courts like in Ukraine but by one, or two at most,” explained Roman Kuybida. The expert noted that it is going to considerably speed up the consideration of cases as it won’t be “travelling among the four different institutions”. Kuybida also noted that in case the three-level judicial system is introduced courts will be reorganized and judges are to be re-elected on competitive basis. At the same time, such competition creates career mobility opportunities for five and a half thousand judges of local courts: they will have a chance to be selected to posts at courts of cassation. Moreover, professionals from beyond the judicial system who comply with the established criteria will be able to take part in the competition. “Thanks to the competition we will be able to include more people into the judicial system who have not previously worked in it and who will be able to change people’s attitude towards judges with their work,” noted Kuybida. It is also foreseen to secure citizens’ right to a trial by jury.
Reform of the judicial system also foresees change of requirements for candidates to the post of judge: minimum age is 30 years and at least five years of experience in the legal field are required. “It will enable to select more experienced professionals to courts on a competitive basis who have already earned their reputation. It will increase the level of trust to judicial authorities in society,” noted Valentyna Simonenko. Judges willing to continue their work will have to undergo evaluation to test their professional knowledge, integrity and compliance with professional ethics. Moreover, from now on, before their appointment to the post judges will study at the National School of Judges for one year. Such a system for access to the profession is widespread in majority of the EU countries, noted Natalia Petrova. Judges will be trained to communicate with society, resist to psychological pressure, manage their time and write court decisions. Much attention will be also paid to studying anticorruption legislation.
The main challenges to justice system reform include the need to design such criteria for selection of judges that “will enable to select best of best” as well as provide decent work conditions including salary of the judge, noted Virgilius Valancius. “When the salary of the judge is too low, it is hard to resist temptation. If a policeman’s salary is higher than that of the prosecutor or of a judge it creates a misbalance. Salaries of anticorruption prosecutors and judges need to be increased as their decision is the final stage on the way to justice,” the expert explained. At the same time strict mechanisms that will control income of judges need to be introduced to prevent corruption. The state may cooperate with civil society in this field, however it is worth foreseeing mechanisms that allow information checks on the judge’s corrupt acts based on submissions from citizens. “There needs to be a filter because many people are dissatisfied with court decisions are going to appeal,” noted Valancius. Civic council may become such a filter.
Another serious challenge is about the dilemma how to purify the judicial system from people who do not deserve their posts while avoiding both too passive and too radical steps. “We need to aim at keeping professional judges, dismiss those who have discredited the profession and select new professionals to vacant posts,” emphasized Natalia Petrova. “Decent conditions need to be created and at the same time limits need to be introduced. Then those who want to leave need to be granted such an opportunity. Violation of the limits would be the reason to hold one liable. Then those who will not be able to work under such conditions will leave”. Moreover it is of utmost importance to bring up independent thinking and decision-making in the judges. Judges now often take the head of the court for their boss.
Experts said that the work over drafting of laws is currently starting. The laws in question are to implement the new constitutional provisions.