Publication

The article was written within the project “Ukraine – Out of the Crisis Through Dialogue”, implemented by IWP and Caucasian House. The project is funded by the FCO/DFID/MOD Conflict Pool through the British Embassy in Ukraine.Iaroslav Kovalchuk, Head of Internal Policy Department, ICPS
Kakha Tsikarishvili, Member of Disciplinary Board of Judges of Common Courts of Georgia

The sociological survey conducted by the “Democratic Initiative” Fund in December 2014 shows that in Ukraine the balance of trust/mistrust towards Ukrainian judges has deteriorated from -52% to -72% over the last year[1]. The situation has worsened even though last year the survey was conducted after the start of the Revolution of Dignity, when courts were already perceived as puppets of executive power, namely that of Viktor Yanukovych and his Family. At that time everyone understood that judges could be easily influenced into taking any convenient decision. The 2014 survey shows that Ukrainian politicians did close to nothing to change the judicial system after the Revolution. It reveals that this area will need radical action from the Ukrainian government in the short term and a lot of public attention will be paid to judicial reform. Under such circumstances Georgia’s experience of justice reform, which was implemented in several stages and brought tangible results, may be applicable in Ukraine too.

The judicial system in Ukraine has never been an independent branch of power. The courts have often been used as a convenient instrument for confrontation between the President and Parliament. During the presidency of Viktor Yanukovych, courts were actively used for the persecution of dissidents, the manipulation of election results and the prohibition of mass gatherings. The inability to protect oneself using legal means, i.e. a lack of rule of law, was one of the driving reasons for the Revolution of Dignity.

The punishment of those judges who were deliberately involved in illegal decision-making, the guaranteed independence of the judiciary system and the prevention of corrupt practices in the system were the main demands of the post-revolutionary period. However, the passing of reforms was hampered by resistance in the system and the unwillingness of the political elite to abandon such a convenient instrument for the legalization of their decisions.

2014: a year in vain?

On April 8, 2014, the Verkhovna Rada adopted the law, “On restoring trust in the judiciary system in Ukraine”[2], which automatically dismissed all heads of courts and dictated that in regards to administrative posts, judges are to be elected by colleagues. The adoption of the law did not bring forth results, as shortly afterwards, 80 percent of court heads were restored to their posts through collective decision-making. Some judges, who lost positions in the Constitutional Court and the High Council of Justice, returned to their offices under the decision of the Supreme Administrative Court of Ukraine[3]. In addition, in May 2014, a group of MPs filed an appeal to the Constitutional Court, calling into question the constitutionality of this law.

Pursuant to the law, the Interim Special Commission on examination of judges of general jurisdiction was created[4]. As of November 10, 2014, the Commission has initiated 88 examinations into judges. Materials concerning only two of them were submitted to the High Qualification Commission of Judges (HQCJ), while for eight of the examinations, conclusions on a violation of oath were delivered to the High Council of Justice (HCJ). However, even those few judges have already appealed against the decisions, and therefore the process of purging the judiciary continues to be delayed.

The decision on the punishment and dismissal of judges is to be adopted by the High Council of Justice and the High Qualification Commission of Judges. The law, “On restoring trust”, dismissed the previous members of these bodies, but new members have not been appointed.

In Ukraine, the High Council of Justice consists of 20 members. The Verkhovna Rada, the President, the Congress of Lawyers, the Congress of Judges and the Congress of Representatives of Higher Legal Educational Institutions appoint three members of the High Council of Justice each, while the All-Ukrainian Conference of Prosecutors appoints two members and the Prosecutor General, the Minister of Justice and the Chairman of the Supreme Court are ex officio members of the HCJ.

The Congresses of judges, lawyers and academics have been held, but their results were challenged in court. The reason lies in the interest of some influence groups, such as Serhiy Kivalov, in retaining personal control over the judicial system and capitalizing on this influence in their relationship with the new government.

Probably the only tangible result in Ukrainian judicial reform for the last ten months has been the respective chapter in the coalition agreement, which was signed in November 2014. Though a public discussion of the concept of judicial reform was not conducted, the authors of the coalition agreement presented quite comprehensive elaborations in this field. In particular, it proposes that the selection of judges will be competitive and requirements for the position will be formulated, based on the need to declare revenues and expenditures for candidates and members of their families. Judges’ actions will be regularly assessed, and the law will define a procedure for a judge to face disciplinary action. Further, the Supreme Court will recover the authority that it lost during the reign of Viktor Yanukovych. In criminal proceedings, lay courts will be used. The authors of the agreement promised to introduce efficient legal mechanisms to meet deadlines in courts and to improve the procedure of court decision implementation, whereby there will be accountability for a violation of deadlines and stimuli for voluntary fulfillment of court decisions.

At the same time, developers of judicial reform did not explain a number of important issues, namely concerning the professional training of judges, the mechanisms to ensure the independence of judicial self-governance and the assurance of a reduction in the number of cases per judge. Without definite answers to these questions, it will be impossible not only to effectively implement this reform, but to even launch it.

Concerning these issues, Georgia’s experience may be useful for Ukraine, as Tbilisi managed to conduct judicial reform even without a majority of judges being sacked.

Justice reform in Georgia: pros and cons

The rose revolution of 2003 brought sweeping changes in all areas of public life including justice. With regard to the courts, the government announced its plans to fight judicial corruption and reinforce the court system. Subsequent reforms brought about numerous positive changes to the court system, including, but not limited to: the transformation of the High Council of Justice into a judicial self-governing institution; the unification of courts and specialization of judges; renovation of all courthouses including upgrades with modern technologies; virtual elimination of corruption among judges; the creation of a special educational institution for judges – the High School of Justice; implementation of trial audio recording and court case management systems in trial courts (which largely replaced paper in the courts); introduction of jury trials and lifetime appointment of judges; a reduction in case backlogs and case delays; introduction of user oriented communication standards for judges and court staff; adoption of the law banning ex-parte communication with judges etc.

Overall, Georgian experts positively assess the above steps, but they also draw attention to some shortcomings of the 2003 reform, mainly concerning political influence over judges, which has remained quite strong. Various mechanisms were used to get rid of politically unwanted judges and pressure the remaining judges to comply with the will of the executive branch and Parliament, such as reorganization of courts and placement of unwanted judges in the reserve list[5]; transfer of disobedient judges from court to court[6]; banning of television cameras from the courtrooms[7]; the use of court chairmen to control outcomes of court cases[8]; non transparent application of financial bonuses; disciplinary and criminal prosecutions against politically disobedient judges; reduction or elimination of judicial discretion in criminal sentencing, while giving unrestricted discretion to prosecutors.

After the change of ruling party in 2012, a number of steps were taken to address these shortcomings: the creation of a new High Council of Justice, where a majority of members are elected by judges through free, transparent and fair elections and a minority are representatives of civil society and academia[9], readmission of TV cameras into courtrooms; the creation of an alternative judicial association[10]; the creation of an independent disciplinary board in charge of adjudication of judicial disciplinary cases[11].

Georgian lessons for Ukraine: why should we reinvent the wheel?

Georgia’s experience is especially important for Ukraine regarding such issues as the high quality of judges’ professional training, self-governing bodies of the judicial system and judges’ workload.

The professional level of Georgian judges is ensured by higher requirements for their qualifications and permanent training programs. In contrast to Ukraine, where a citizen over 25 who has a higher legal education and three years of professional experience can become a judge, key requirements in Georgia include an age minimum of 30 years and no less than five years of experience in law.

An applicant must be selected to the High School of Justice, which in Georgia is modeled on l’École nationale de la magistrature (France). All judges (except for Supreme Court judges) have to undergo an initial 10 months training in the High School of Justice, 5 months of which are dedicated to theoretical studies, 4 months to an internship in court and the remaining 1 month consists of various practical workshops. At the end of the training the students have to pass a final exam, the result of which, together with the results of the whole training course, is taken into account in their appointment to judicial vacancies.

However, even after obtaining a post, each judge must take continuous education courses at the High School of Justice..

In Georgia, trial and appellate judges are appointed for life (with a three year probationary period) after having successfully completed mandatory training course in the High School of justice[12]. Disciplinary cases are investigated and prosecuted by the High Council of Justice and are adjudicated by the Judicial Disciplinary Board, a majority of members of which are also judges elected by Judicial Conference.

Autonomy of the judiciary in Georgia is guaranteed by the fact that most of the judges of the High Council of Justice are professional judges: 9 members are judges elected by Judicial Conference through a secret ballot, the remaining 6 are representatives of civil society and academia appointed by Parliament and the President.

Concerning a reduction in the number of cases, the Supreme Court in Georgia was successfully relieved by 35-40% due to the introduction of an admissibility principle whereby the ultimate destination of a contested decision from a local court is a court of appeal, and the Supreme Court deals with the interpretation of judicial practice and resolves contentious cases[13]. The number of cases in courts of general jurisdiction has been reduced due to the introduction of a mandatory mediation in disputes between family members and neighbors and regarding inheritance issues[14].

The inaction of the Ukrainian government concerning justice reform may totally discredit the idea of changes in the country. Ukrainian society and international partners demand specific results, not declarations from the authorities. The cost of non-doing in judicial reform will include an outflow of foreign capital from the country, a lack of public trust in state institutions, a growing sense of injustice in society, and a deterioration of the investment climate in the country.

[1] http://www.dif.org.ua/ua/publications/press-relizy/gromadska-roku.htm

[2] http://zakon4.rada.gov.ua/laws/show/1188-18

[3] http://www.pravda.com.ua/columns/2014/07/10/7031530/

[4] http://www.vru.gov.ua/add_text/30

[5] See e.g. American Bar Association, Judicial Reform Index for Georgia, 2005, p. 2

[6] Georgian Young Lawyer’s Association, Justice in Georgia, 2010, p. 17-20

[7] See Georgian Young Lawyer’s Association, Justice in Georgia, 2007, p. 36

[8] Georgian Young Lawyer’s Association, Justice in Georgia, 2010, p. 14

[9] US State Department Georgia Human Rights Report (2013) p. 18. The 2013 amendments to the Law on Common Court no longer allows court presidents to serve as members of High Council of Justice (in line with Kiev Recommendations on Judicial Independence, 2010 par. 11).

[10] The new judicial association “Unity of Judges” was established on June 4, 2013 and it currently has up to 50 members. Consequently, there are now two associations actively representing the voice of judges in different areas of judicial life.

[11] The Judicial Disciplinary Board is composed of 5 members, 3 of which are judges elected by Judicial Conference and 2 are civil society representatives elected by Parliament. The separation of prosecuting and adjudicating bodies in the disciplinary process is in line with Kiev Recommendations on judicial Independence 2010, par. 5

[12] Though this probationary period has been criticized as a potential threat to judicial independence (See e.g. European Commission for Democracy Through Law, Opinion N° 773 / 2014)

[13] Though the Supreme Court has lately been subjected to criticism for discretionary (arbitrary) use of admissibility criteria, there are currently some legislative proposals from the Ministry of Justice to bring more clarity in admissibility criteria and oblige the Supreme Court to explain its admissibility decisions.

[14] Though during the year 2014 the number of cases sharply rose in all levels of courts , one of the reasons provided for this is the insufficiency of judges.