analytics

Draft laws 1656 and 1497 on judicial reform - key differences

26.01.2015

Draft law № 1656 (prepared by the Administration of the President of Ukraine)

Draft law № 1497

(Prepared by RPR together with Ministry of Justice of Ukraine and international experts)

The President of Ukraine establishes, reorganizes and liquidates courts (art. 19). The President is not entitled to liquidate courts according to the Constitution of Ukraine.

The President of Ukraine only establishes (and reorganizes) courts (art. 19), which corresponds to art. 106 of the Constitution of Ukraine.

The President is entitled to transfer judges to courts of the same level and higher level, while the Verkhovna Rada – to lover courts (art. 75 and 82).

Such provisions despite the Constitution of Ukraine contain hidden possibilities for the President and the Verkhovna Rada to have influence on composition of particular courts and receive loyalty of particular judges.

The Council of Judges transfers and promotes judges by proposal of qualification commission and according to the results of competition for the vacant position (art. 72 and 79).

Both the President and Parliament are eliminated from the process of transfer and promotion of judges.

Therefore, on the statutory level political influence on judges is eliminated together with politically motivated decisions.   

The President of Ukraine signs certificates of judges firstly appointed to the position and of the heads of the courts, deputy heads of courts despite the fact that it is not in his competence to appoint them. (art. 51). It demonstrates unequal attitude to judges and may content hidden President`s influence on the heads and deputy heads of courts.

The Head of Council of Judges of Ukraine signs certificates of all judges, the heads and deputy heads of the courts (art. 49).

Judges personally take oath in front of the President (art. 56).

For almost a year around 300 judges still haven`t taken oath (due to the fact that the President is short of time), therefore they do not administer justice but still get paid. Avoiding such practice could save budget funds.

The President is eliminated from the process of judges taking oath.   

The draft law saves corrupted commercial courts and at the same time may create a distance between people and appellate civil and criminal courts because the President intends to liquidate some of these courts.

The draft law provides gradual liquidation of corrupted commercial courts.

The draft law provides two disciplinary procedures in High Qualification Commission and High Council of Justice.

In particular, there are no exact terms of disciplinary proceeding, which means that disciplinary cases may last for years. The draft law contains a provision: “a judge who committed actions which discredit the judiciary”, which is an unclear reason for dismissing  a judge and may be used to pressure particular judges.

There is single clearly defined disciplinary proceeding in disciplinary commission and High Council of justice. The daft law provides terms for making decisions in disciplinary cases, which minimizes possibility to put pressure on judges.

Higher Qualification Commission of Judges (HQCJ) remains while its list of competences is widened. The number of its members increases which requires additional budget funds.

Instead of High Qualification Commission of judges, the draft law establishes Qualification and Disciplinary Commission of Judges (QDCJ) by analogy to such bodies in prosecutor’s offices and bar associations. Its structure differs from the one HQCJ currently has. QDCJ has working bodies on prior examination of complaints, disciplinary and qualification commissions. Such structure will increase effectiveness of QDCJ without increasing the number of its members.

QDCJ has competences mostly in selection of candidates for position of judges, their special training and disciplinary proceedings.

HQCJ has 14 members and is formed by  Congress of judges (8 judges elected for permanent terms or former judges), Congress of representatives of law schools and academic institutions (2 members), Congress of bar association representatives (2 members), parliamentary ombudsman (1 member, not among judges), Head of State judicial administration (1 member). Concerning conference of representatives of law schools and academic institutions and conference of bar association representatives, - it is not clear among whom they shall elect their members to HQCJ.  It means that a prosecutor or a judge may become an HQCJ member elected by conference of bar association representatives. It is a possibility to create closed societies.

QDCJ has 11 members and is formed by Congress of judges (6 judges elected for permanent terms or former judges), Congress of representatives of law schools and academic institutions (2 members among scientists), Congress of bar association representatives (1 member among barristers), parliamentary ombudsman (2 members among NGO representatives). There is a clear provision, according to which a member elected by bar association representatives must be  a barrister, in the same way members elected by conference of representatives of law schools and academic institutions must be scientists.

Participation of NGO representatives in QDCJ with possibility to influence quality of judiciary is a novelty.

The draft law establishes five qualification classes for judges, which creates gradation among judges without any precise criteria provided by law.

Establishing qualification classes for judges may result in misuse of such classes in order to influence disloyal judges in the same way as it was before elimination of qualification classes.

The draft law does not contain such provisions.

The draft law establishes the following bodies of judicial self-governance: judges of a particular court, conferences of judges of specialized courts, Council of Judges of Ukraine and Congress of judges.

The draft law establishes the following bodies of judicial self-governance: judges of a particular court, Council of Judges of Ukraine and Congress of judges. Therefore, additional burdensome bodies such as conferences of judges of specialized courts are eliminated. They are not only unnecessary but also often used as a way to manipulate in issues related to judicial self-governance. Simplification of judicial self-governance system is one of the Venice commission requirements, which aims at strengthening judicial self-governance.

Convention procedures of the Congress of judges remains without changes: delegates from local courts are filtered by appellate courts on a conference of judges of general and specialized courts; delegates for Congress of judges are determined “from the top” – by conference of judges of general and specialized courts in Kyiv.

Such procedure leads to delegation of “friendly” candidates.

Convention procedures of the Congress of judges provides that the delegates are elected directly from each court.

Council of Judges remains entitled to determine procedure for case distribution. Current experience shows that such competence resulted in establishing numerous exceptions from automatic distribution, which allows heads of courts distribute cases to “appropriate” judge.

The draft law exhaustively regulates procedure for case distribution (automatic distribution).

Members of the High Council of Justice are elected according to the same principles as it is established in active legislation (and does not correspond requirements of the ECHR because the majority of its members are not judges elected by judges).

Therefore, every judge dismissed by High Council of Justice can challenge his dismissal in ECHR on the grounds of   illegitimate composition of the High council of Justice (the majority of its members are not judges).

Judges - candidates for membership in the High Council of Justice are approved by the Council of Judges (according to requirements of ECHR on composition of the High Council of Justice where the majority of members must be judges elected by judges). It strengthens guarantees of judicial independence and capacity of judicial self-governance. It also means that dismissed judges would not question their dismissal with reference to decisions of ECHR in order to resume.

Courts will still be entitled to return complaints to claimants because of lack of jurisdiction.

The draft law establishes a mechanism according to which a court cannot return a complaint to the claimant because of the lack of jurisdiction. Now the court, which received a complaint, shall determine appropriate court and transfer there a respective complaint.

The draft law does not establish any mechanisms of electronic judiciary.

The draft law establishes mechanisms of electronic judiciary, in particular, instead of paper documents a person can submit and receive electronic service documents. Such mechanism makes communication with the court more convenient for people and less expensive for the state.

The draft law suggests screening of judiciary by means of qualification attestation without clearly defined criteria. If a judge does not undergo this procedure, he may be dismissed on the ground of breaking the oath.  Considering that the procedure and criteria for qualification classes are not clear and precise, the draft law creates a threat of politically motivated decisions with regard to judges.  Moreover, the procedure of screening of judiciary by means of qualification attestation requires amendment to the Constitution of Ukraine. Without such amendment, there is a risk that dismissed judges will be able to resume after challenging their dismissal in ECHR. Therefore, suggested procedure strengthens dependence of judges from arbitrariness of some officials, does not guarantee real screening of judiciary and creates a threat for the dismissed judges to resume.  

The draft law creates prerequisites for efficient screening of judiciary through effective mechanisms of disciplinary liability of judges. In order to conduct effective screening of judiciary it is necessary to amend the Constitution of Ukraine, which will guarantee irreversibility of this process.

The experts of RPR have already prepared respective draft law.