Threats inherent in proposal judicial reform could outweigh achievements
On 31 May President Yanukovych submitted to the Verkhovna Rada a Draft Law “On the Judicial System and Status of Judges” (No. 6450). To a large extent it is reminiscent of the draft laws on the judicial system and status of judges submitted by President Yushchenko. Special training for work as a judge is envisaged; competition for the post of judge to be run by a permanent High Qualifying Commission of Judges; clear grounds for taking disciplinary proceedings against judges; the duty to declare income and outgoings of the judge and his / her family; clear size of judge’s salary; the issue is resolved of independent cassation level in civil and criminal cases by creating the relevant high court; military courts are to be dissolved; and so forth.
At the same time the new draft law endangers the independence of judges in is wide scope for the use of protection for some judges and reprisals against others.
The greatest danger is the lack of competition for promotion of judges, with no criteria given for how judges are chosen for higher level positions. There is only the requirement that they have been a judge for a certain amount of time and a provision regarding them having an interview with the High Qualifying Commission of Judges. However according to European standards, period of service should not be a guiding principle for the promotion of a judge, professional experience and the number of years service should be viewed only as additional grounds for judges’ independence (4.1 of the Opinion no 1 (2001) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on standards concerning the independence of the judiciary and the irremovability of judges”. Unfortunately this means that patronage could remain the main way for judges to further their career.
Many issues are raised by the system for special training of future judges envisaging that this training will initially take place in a specialized legal higher educational institute of fourth level of accreditation (this is perhaps referring to the Institute for Professional Judges in Odessa, and the analogous faculty of the Yaroslav Mudry National Law Academy in Kharkiv). Following successful conclusion of this level, there would be further training in the National School of Judges of Ukraine which would function under the High Qualifying Commission of Judges. Yet according to European standards, special training of judges may not be carried out by educational institutions dependent on the Ministry of Education, including in the issue of accreditation. This should be dealt with by an autonomous institution under the control of judges (Item 66 of CCJE Opinion No. 10 from 2008 “Council for the Judiciary in the Service of Society”). The requirement is also not observed that those who carry out the training do not take part in assessment of candidates. Specialized institutions subordinated to the Ministry of Education will not only be unable to weed out candidates. The National School of Judges thus meets the given criteria, while the specialized legal institutions of fourth level of accreditation do not.
The scope of powers of the High Qualifying Commission of Judges arouses doubts as to its ability to achieve these efficiently even if it functions on a permanent, non-voluntary, basis. For example, the draft law envisages that the High Qualifying Commission of Judges (with 11 members, not 15 as at present) will oversee not only the selection and career of judges, but issues of disciplinary liability. Yushchenko’s draft law envisaged the creation of a separate Disciplinary Commission of Judges and Service of Court Inspectors. The latter would check appeals, put forward and support accusations against a judge of disciplinary offences, while the Disciplinary Commission was, after ascertaining the position of the judge or his/her representative, to determine whether to bringing disciplinary proceedings against the judge.
However according to the new draft, the members of the High Qualifying Commission will themselves carry out the check (including with the help of disciplinary inspectors), present accusations and punish judges. This could mean that the High Qualifying Commission of Judges will be overloaded, and that the disciplinary procedure will not be adversarial. This makes it possible to assume that the High Qualifying Commission given certain manipulation with selection of its members could be used to select “needed” judges and reprisals over “inconvenient” judges.
Such an inquisitional, rather than adversarial, mechanism supplements the existing model of a politicized High Council of Justice which was heightened by the Law on Amendments to Some Laws of Ukraine on Preventing Abuse of the Right of Appeal” from 13 May 2010. It is interesting that some grounds for dismissal of judges due to infringement of their oath under the current Law on the High Council of Justice (in the version from 13 May 2010) totally encompass, and in places are even broader than the grounds for disciplinary liability formulated in the draft law. That is, for some more serious offences, a reprimand is envisaged, while for trivial offences – dismissal.
The draft law does not propose the relevant amendments to the Law on the High Council of Justice.
The broadening of the powers of the High Council of Justice is unwarranted without bringing the procedure for forming its makeup into line with European standards. Thus, according to the draft law, the High Council of Justice will have the authority to appoint and dismiss heads of courts and their deputies. Yet such authority vested in the High Council of Justice is dubious since it is not envisaged by the Constitution (Article 131 of which gives a comprehensive list of the Council’s powers). In accordance with European standards, at least half of the members should be judges elected by judges (Item 1.3 of the European Charter on the Law for Judges). The draft law envisages that the President, the Verkhovna Rada, the Congress of representatives of law schools and institutes, Congress of bar lawyers, the Ukrainian Congress of Prosecutor’s Office Staff appoint a certain number of members from among judges. Yet this still does not meet the requirement that no less than half the makeup should be judges who are elected by judges. It is clear that without making amendments to the Constitution this cannot be achieved however one can also not broaden the powers of the High Council of Justice before making changes to the Constitution.
The right to appoint and dismiss the heads of courts will retain its attraction for political forces since according to the draft law, the powers of the head of the court, although narrowed, have not been so reduced as to not enable their influence on judges. For example, issues regarding leave, judges’ accommodation, etc are not placed in the authority of judges’ assemblies and therefore remain in the competence of the heads of courts. The heads of higher level courts will have certain procedural rights, for example on changing the jurisdiction in criminal cases.
The provisions of the draft law on the language of court proceedings are in breach of Article 10 of the Constitution which states that the State language is Ukrainian. The Constitutional Court explained that the status of State language means that it is the mandatory means of community throughout Ukraine for the authorities in carrying out their duties. The use, together with the State language of other languages is permitted only where local bodies of power, bodies of the Autonomous Republic of the Crimea and bodies of local self-government are carrying out their powers within the framework and procedure stipulated by Ukrainian laws, however this does not apply to the courts (Judgment regarding the use of the Ukrainian language, from 14 December 1999, No. 10/99). That is court bodies are obliged to use only the State language. In breach of this, Article 12 of the draft law empowers a court located in a place “densely populated by people of another nationality” to use another language – the language of the relevant national minority. And at the application of people taking part in a case, the court should ensure that the proceedings be in another language.
An achievement of the draft law in question is that amendments are proposed at the same time to all procedural codes. However some amendments to procedural legislation could have adverse consequences. For example, the Supreme Court will be able to re-examine court rulings at cassation level on two grounds: 1) different use by a court (courts) at cassation level of the same norms of material law leading to the passing of contradictory court rulings in similar cases; 2) the establishing by an international court body whose jurisdiction is recognized by Ukraine, of a violation by Ukraine of its international obligations in the treatment of a court of a case. Yet firstly, this will not make it possible to remove the discrepancies in the application by high courts of the norms of procedural law, including with regard to jurisdiction. Secondly, it is envisaged that the access of cases for the review of the Supreme Court will be undertaken by the high courts themselves. It is doubtful whether high courts will wish to hand cases adjudicated by their colleagues for review even where there are grounds for this. Clearly the principle of mutual corporate loyalty will come into play.
Thus, some new features of the draft law “On the Judicial System and Status of Judges” may not only retain, but also heighten the influence of individual political forces on the judicial system.
Yet the true objective of judicial reform should be to ensure the human right to a fair trial. In carrying out this reform, such fundamental tasks must be resolved as creating effective mechanisms for ensuring independence, professional and responsibility of judges, broadening the powers of judge self-government, while at the same time reducing the role of the heads of the courts in court administration. The system of general jurisdiction courts should be made more balanced and clear in accordance with specialization and stages of court proceedings, and effective and fair court proceedings should be ensured.
Should the draft law “On the Judicial System and Status of Judges” be passed at its first reading, we recommend at the reworking stage that:
1) transparent competition for posts in higher level courts and clear criteria for choice of candidates be set out;
2) institutes subordinate to the Ministry of Education be excluded from the system of special training of judges;
3) a separate Disciplinary Commission of Judges be created to examine disciplinary cases of judges of local and appellate courts with a service of court inspectors, and ensure adversarial disciplinary procedure;
4) the makeup of the High Council of Justice be brought into line with European standards; the appointment of judges to the post of head of court or deputy head to be made part of the powers of judge self-government, with the competence of the heads of courts being exclusively representative powers, as well as powers over the court apparatus.
5) the provisions on language be brought into line with the Constitution;
6) the Supreme Court not be stripped of its powers to react to discrepancies in the application by high courts of the norms of procedural law and allowing applications for re-examination of case according to strictly defined criteria.