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15.07.2010 | Ihor Koliushko, Roman Kuybida, Centre for Political and Legal Reform

New Law on the Judicial System: hasty, low quality justice from intelligent but dependent judges

   

On 7 July the Verkhovna Rada fulfilled the President’s promise to swiftly carry out judicial reform, and without awaiting the Venice Commission’s opinion, passed the Law “On the Judicial System and Status of Judges”.  The Law, with the exception of some provisions, is to come into force on 15 July. Despite a large number of positive changes, the authors of the above-titled analysis point out some problems not immediately evident which could in the final analysis outweigh all achievements of the new court reform.

Training of judges

The law envisages mandatory special training for judges, including before their appointment to the post. The authors say that the idea is excellent, but point to a worrying lack of clarity. The initial training should be in the School of Judges (presently the Academy of Judges) or in an institute / faculty for training professional judges created by the President at a higher educational institute of fourth level of accreditation. All is clear, they say, with the School of Judges. Its status is clearly stipulated and it basically complies with European standards. Questions arise regarding the institute / faculty for training professional judges at a higher educational institute of fourth level of accreditation. It is clear that this is an element of an institution under the Ministry of Education. Yet according to European standards, such an institution should not depend on the executive branch of power, including the Ministry of Education. Secondly, the Constitution does not give the President the power to create institutes or faculties. A law, according to the position of the Constitutional Court, may not extend the constitutional powers of the President.

Thirdly, there are already institutes for preparing judges at the Institute for Professional Judges in Odessa (whose President is the Head of the Parliamentary Committee on Justice Issues, S. Kivalov) and the analogous faculty of the Yaroslav Mudry National Law Academy in Kharkiv. The authors of the bill evidently meant those, yet neither of them was created by the President who only instructed the Cabinet of Ministers in 2001 to ensure the creation of these institutions.

Thus, regardless of the authors’ intentions, judges’ training should only be carried out by the School of Judges and not Ministry of Education institutions.

Selection of Judges

A centralized competition for appointment as judge is introduced for the first time. This will be run by the High Qualifying Commission of Judges both before sending people for special training, and after its completion, in order to make a recommendation as to their candidacy as judge to the High Council of Justice. According to the results of a qualifying exam, a rating will be used of candidates.

It is worrying that the competition will be run “with the participation of specialized educational institutions” which contradicts the principle that those who teach must not assess to avoid subjective factors becoming involved. This principle was carried through by the previous regime in Independent External Assessment [ZNO] for school leaves which is considered more objective. The so-called specialized educational establishments could thus become influential players in the process of choosing judges.

There is no procedure at all envisaged for a competition to select judges at higher level. Nor is there at the present time. There are no criteria for how judges are chosen for higher level courts, all suggesting that judges of appeal level, high courts and the Supreme Court were chosen from those “necessary” for somebody.

Disciplinary responsibility and dismissal

The Law for the first time gives a clear list of grounds for bringing disciplinary proceedings against a judge. Interestingly, some grounds for dismissal due to violation of a judge’s oath according to the version of the Law on the High Council of Justice passed on 13 May 2010 totally cover and are sometimes broader than in the Law “On the Judicial System and Status of Judges”. For some more serious offences a reprimand is envisaged, while for more trivial ones – dismissal. As from recently the Law on the High Council of Justice makes it possible to hold all judges under the permanent threat of dismissal (for example, over missing the time limits for examination of a case). The new law has strengthened this possibility.

Despite the declared adversarial nature of the disciplinary proceedings, it will not in fact be so. A member of the disciplinary body (the High Qualifying Commission of Judges and the High Council of Justice ) are at the same time the investigator (being helped in this by disciplinary inspectors), prosecutor and judge with regard to the judge in question.

Instruments of influence

The High Qualifying Commission of Judges has received broad powers for forming the judge corps and bringing disciplinary proceedings against judges. We cannot exclude the possibility that following the example of the High Council of Justice, a fierce battle for the position of each member of the Qualifying Commission will ensue. Despite the fact that 6 of the 11 members will be judges appointed by the Congress of Judges of Ukraine, political forces will dominate. Perhaps especially for this the system of bodies of judge self-government has been changed. Clearly influence from the new regime on the formation of the High Qualifying Commission of Judges is inevitable.

This makes it possible to assume that the High Qualifying Commission of Judges with certain manipulations in choice of members can be used to choose the “right” judges and deal with “inconvenient” ones.

The broadening of the powers of the High Council of Justice is also unwarranted without bringing the procedure for forming its makeup into line with European standards. Thus, according to the law, the High Council of Justice will have the authority to appoint and dismiss heads of courts and their deputies, as well as to oversee complaints of judges whom the High Qualifying Commission of Judges has turned down for indefinite tenure.

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 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.

Pay, declarations and rewards

In accordance with European standards, the size of judges’ pay must be guaranteed by law. Up till this law, such issues were resolved through subordinate acts, many of which were not even published. According to the law, judges’ remuneration is made up of a salary for the position and extra payment for number of years service, administrative position, academic qualification, work involving access to state secrets.

The previously promised minimum salary of 15 times the minimum wage will be introduced in 2015, before that rising gradually.

The norms about declaring property leaves a loophole since close relatives who are not members of the immediate family are not included and can easily be used to avoid public scrutiny over the income of a judge.

Reorganization of the court system

The law envisages the creation of a High Specialised Court for Civil Cases, and one for Criminal, stripping the Supreme Court of its function as cassation level in these cases. The authors note that this has aroused debate, but they basically see the idea as worthy of attention, since the Supreme Court is overloaded, and has no time to devote to its main function, ensuring standardised application of the law. Furthermore, the Supreme Court is presently forced to review complaints against its own rulings in exceptional circumstances.

However the procedural mechanisms in the law effectively strip the Supreme Court of any possibility of influencing the practice of general jurisdiction courts.

It loses the power to give courts explanations regarding application of legislation, although the high courts have retained this.

It can examine rulings by high courts only in the case of divergent application of material law, not procedural law, and only when the application for a review comes from the relevant High Court whose ruling is being appealed. It’s easy to guess how often that’s likely to happen

In the case that they allow the complaint, the most that the Supreme Court can do will be to revoke the ruling and send the case for new examination, but not pass a new ruling.

The authors note that the mechanism arouses doubts due to the Judgment of the Constitutional Court from 11 March this year stating that the Supreme Court is not the cassation level with regard to the High Council, that is the ;eve; which revokes rulings but does not have the power to issue new ones.

They are also sceptical that the new High Court will be ready to begin work on 1 November this year.

The abolition of military courts is welcomed.

The law has rejected the idea which was quite correctly envisaged in the draft submitted by the President about the inadmissibility of bodies of power rewarding judges while they are in office. The law envisages the right to grant awards of various kinds, though in theory not for their work as judges. Such a formulation, the authors say, makes the restriction very easy to bypass.

Reduction of time limits

The authors of the law announced a reduction in procedural time frames as one of the ways of overcoming protracting court proceedings. For example, the periods of examination of cases at each level should not exceed 1-2 months, in some categories of cases – 20, 15 or even 5 days. Given the considerable load, the need to observe these periods will lead to violations of the procedural rights of the parties and to superficial examinations. We will receive quicker, but low-quality justice. Or hundreds of thousands of complaints to the High Council of Justice, with this body using such complaints to manipulate judges.

The Law also significantly shortens the time frame for lodging appeals or cassation appeals (10 and 20 days, respectively). In conditions where there is no system of accessible and effective legal aid, this will be a serious blow for people on low incomes since they will not have time to even determine which lawyer to approach. Moreover in a number of categories people have been deprived the right of appeal altogether.

Conclusion

Application of the new Law “On the Judicial System and Status of Judges”, should it be signed by the President, will reveal a far greater number of hidden sticking points. A fair number of contradictions and clashes will also emerge, these being impossible to avoid given the speed with which the law was drawn up and passed. One can except a number of constitutional submissions to the Constitutional Court, a critical assessment from the Venice Commission “post factum” and other attempts to rectify deliberate and unconscious mistakes.

The most dangerous thing is that the principle “quick but shoddy”, demonstrated in drawing up and passing this fateful and long-awaited Law, will be transferred to the work of the judiciary, whose dependence on politics will be heightened, but will become more latent. Can the court be fair under such circumstances?

Slightly abridged

 

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