JUDICIAL REFORM: THE SEVEN MOST ANTICIPATED EVENTS OF 201706.02.2017
Last year has been a decisive one for the launch of a full-fledged judicial reform. Минулий рік став вирішальним для запуску повномасштабної судової реформи. The Constitution was amended, new laws “On Judiciary and Status of Judges”, “On Superior Council of Justice”, and two laws relating to the enforcement of judgments were adopted. After these came into force, the High Qualification Commission of Judges announced the competition to the new Supreme Court.
The new Supreme Court
By law, at least 65 judges must be appointed to the new Supreme Court by the end of March of this year. For the first time, not only judges, but also legal scholars and advocates are competing for judicial positions on the highest judicial body. A total of 653 candidates are taking part in the competition, which is being conducted by the High Qualification Commission of Judges. The candidates are also being screened by the Civic Integrity Council made up by authoritative civil society organizations. At the beginning of 2017, the Civic Council’s opinions finding that certain candidates are lacking integrity were given greater weight, as overcoming them now requires the vote of two thirds of the High Qualification Commission’s members (10 out of 16).
Great hopes are being placed on the new Supreme Court. Not only is it supposed to replace three specialized courts and the current Supreme Court, but it should also set high justice standards for the entire judicial system through its exercise of cassation duties. Obtaining a final judgment in a case will become quicker, as the third tier will be the final one (at present, there are four tiers in the judiciary).
It is crucial that the notion of the new Supreme Court is not destroyed by “tossing over” to it tens of thousands of cases that are currently pending before high courts. It is this kind of a mechanism that is envisioned by the law. However, the new Supreme Court may not survive under an overwhelming influx of cases.
Thus, the law needs to be amended, so that the new Supreme Court receives only newly filed cassation petitions. Cases currently pending before high specialized courts must either be resolved by these courts prior to their liquidation or – a forced but undesirable step – transferred to appellate courts.
According to the Constitutional amendments, all sitting judges must undergo a qualification evaluation – i.e., the review of their competence, integrity, and adherence to ethical standards. Failure to undergo such an evaluation is grounds for removal of a judge. Given the large numbers of judges, this process will stretch over several years.
It is important that judges who were previously appointed to five-year terms and appellate court judges undergo this evaluation in 2017. There is also an opportunity to launch the reorganization process for appellate courts and to compose new appellate courts based on a competition open not only to judges. It is necessary to begin forming a reserve of candidates for local court judge positions, as the previous reserve formed during the Yanukovch times has exhausted itself.
The Civic Integrity Council will also participate in the process of evaluating the judges and the candidates for judicial positions. It is necessary that the Constitution’s new provision regarding a judge’s obligation to verify the origin of his or her property (violations may lead to a judge’s removal), is able to demonstrate its viability in practice.
Introduction of anticorruption courts
The Law “On Judiciary and Status of Judges” provided for the creation of the High Anticorruption Court, but its actual establishment was delayed until after adoption of a separate law. The effectiveness of activities of both the National Anticorruption Bureau and the Specialized Anticorruption Prosecution could be completely nullified without the adoption of such law and the launch of anticorruption courts. The existing courts simply delay the consideration of high-level official corruption that were assigned to them, in addition to leaking the information about searches and covert investigative activities, thus sabotaging crime detection operations.
In addition to the High Anticorruption Court serving as the first instance court, a specialized appellate review unit should also be established in the Supreme Court. Subsequently, it may also be necessary to establish several regional anticorruption courts.
The law should set forth a special procedure for selection of judges to these courts, with a decisive voice given to international organization and civil society representatives rather than to political authorities. Judges on anticorruption courts must be not only professionals, but also intolerant towards any manifestations of corruption. It is also important to provide for additional security and personal safety guarantees for judges on these courts and their relatives.
In the event that the law is adopted in the first half of 2017, there is a chance that anticorruption courts could become operational starting in 2018. However, no political will for the adoption of quality law is apparent thus far. Attempts on the government’s part to push through such a version of the law that would enable the selection of loyal judges are likely. Yet, it is also apparent that the civil society will stand up for the creation of truly independent anticorruption courts.
Certain e-court elements have already been introduced into court proceedings, including online payment of court fees, obtaining information on stages and tracking of a case through the court system, ability to receive court notifications and copies of court decisions via email, SMS-information, access to texts of court decisions via a unified state register of court decisions, online streaming of select court hearings, and conducting video-conferences between courts, as well as with pretrial detention facilities.
However, this is far from enough. Justice will be a lot more accessible if all communications with a court could be made fully electronic – that is, for those users who find this format more convenient that regular mail correspondence and personal trips to a court. Cloud technologies should enable functionality to provide users with access to case files and materials through the Internet. In the event that judicial decisions are appealed, it will no longer be necessary to transport voluminous case files to higher level courts.
A mechanism of electronic court order could also prove useful, as it wouuld allow to consolidate approximately 20% of all civil and commercial cases in one or two courts in the entire Ukraine. Thanks to a simple algorithm, these courts would be able to deal with this workload fairly easily: if a duly notified debtor does not object to a claimant’s monetary claims, the court would generate a court order for the collection of these amounts. The experience of Poland and several other countries operating such a court has proven its effectiveness.
Not only will e-court save significant financial and human resources; it will also allow speeding up case resolution for parties, as well as reducing caseloads at the courts. Certain technical capacities for e-court have already been created, but its full-fledged launch requires changes to procedural legislation, which is oriented towards paper-based communications and in-person presence in court. It is hoped that these amendments will be finalized as early as this year.
Review of verdicts against arbitrarily convicted individuals
As reported by human rights advocates, dozens of individuals convicted to life imprisonment are currently serving terms for crimes committed by someone else. The European Court of Human Rights has issued dozens of judgments finding violations of human rights as a result of convictions on the basis of fabricated evidence or confessions obtained under torture. Ukrainian courts at all levels keep turning a deaf ear to such defense arguments. Yet, unfortunately, not all those arbitrarily detained have applied to the ECHR, be it due to absence of a lawyer, total despair, or any other reasons.
As evidenced by the practice, the number of instances of acquittals in Ukraine has not exceeded one percent of all sentences for many years. Both judges and prosecutors have been subject to punishment for acquittal verdicts.
At present, there is no mechanism in Ukraine to review verdicts against such persons if they were issued a while ago. Many of these individuals have died or perished without getting the right to have their cases reviewed. Unfortunately, such a right is not yet provided for by law. However, Parliament adopted in the first reading a draft law that might create a chance for such review. Unfortunately, Parliament was unable to put this draft law up for the second reading last year. This is due partly to the work of judicial and prosecutorial lobby, and partly to the doubts as to efficiency of any potential review by the current judicial system that is unwilling to admit its mistakes.
At the same time, these doubts could be dispersed in 2017, if the process is carried out under control of the new Supreme Court. In this instance, chances for adoption of the law increase. It is important that Parliament does not let go of this opportunity and provides those serving sentences for some else’s crimes with the right to restore justice.
In light of the overall distrust towards the government generally and towards courts in particular, increased public engagement can become an effective instrument for restoring this trust. The institution of jury trials exists in court proceedings. At present, it applies only to criminal cases and only in a curtailed form. By its nature, it does not differ much from the same people’s assessors that existed under the old system – i.e., two judges and three people’s assessors who decide the matters of both the fact and the law. At the same time, a classic jury trial model envisions a jury of peers, which decides on the issue of a person’s guilt based on evidence presented by defense and prosecution, and a judge, who acquits or convicts a person and determines the sentence based on the jury’s verdict.
The need for introduction of this model of jury trials has now become apparent. It is also necessary to expand the scope of its application, which is currently limited only to cases where a person faces potential life imprisonment. Obviously, this will require increase in expenditures for such courts, which will be impossible to accomplish during the coming year. What is entirely possible in 2017, however, is the establishment of a legislative framework for the introduction of jury trials.
Additionally, the introduction of jury trials for resolution of commercial disputes is also entirely possible this year. Even more, this is already referenced in the Law “On Judiciary and Status of Judges”. This implies a somewhat different model. Specifically, the resolution of claims with a large disputed amount will involve authoritative lawyers, selected by the parties themselves from among those delegated by the business community. Obviously, the parties will also have to bear any costs associated with engagement of such jurors-arbitrators. Such a model is capable of killing corruption in economic courts and of creating preconditions for restoring investors’ trust towards the Ukrainian justice system. Its implementation will require amendments to relevant procedural legislation.
Launch of the institution of private bailiffs
Unfortunately, the judiciary’s authoritativeness is further damaged by the poor level of enforcement of judgments. The government has a monopoly in this area, through the state enforcement service. Yet, with only 4.5 thousand public bailiffs and millions of enforcement proceedings falling onto them annually, opportunities for corruption are vast. A public bailiff may refuse to even move his finger without an additional “incentive”. And the disciplinary body, in turn, will always have a justification: excessive caseload.
On October 5 of last year, two laws relating to ensuring the enforcement of court judgments came into force. One of these had provided for the introduction of the institution of private bailiffs, operating side by side with the public ones. Private bailiffs will follow the same procedural rules for enforcement of judgments as their public counterparts. The difference is that the party seeking enforcement will now have the option to choose whether to go to the state enforcement service or to a private bailiff. With the addition of competition, the quality of enforcement should increase, while the opportunities for corruption decrease.
It is anticipated that the first private bailiffs will begin operating as early as the first quarter of 2017, following the completion of competitive selection procedures. Certainly, it is pointless to expect that the number of private bailiffs this year will be sufficient to pose adequate competition to the state enforcement service. With time, however, the share of state enforcement service in this area should decrease significantly – or even entirely disappear.
Whether the President-initiated judicial reform will turn out successful, and the justice fair and efficient, will become known later this year. There are chances for success – and these are rather high. However, the risks are also serious.
Deputy Chair of the Board
Center of Policy and Legal Reform