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4. Right to fair trial: other aspects

[1]

The year 2013 was marked by the increasing political dependence of the judicial system and preparation of amendments to the Constitution with respect to the judiciary reform.

The results of the sociological poll carried out by Razumkov Center testify to the aggravation of situation reflecting the political dependence of the judicial system. Thus, by July 2013 the level of public trust towards courts has reached critically low mark. Over 80 % of citizens believe that courts are dependent; 51 % of respondents stated that the courts depended on President; 18 % of respondents stated that the courts depended on executive bodies of power; 14 % of respondents stated that the courts depended on the Supreme Rada. The courts enjoy the least trust among all the governmental institutions[2].

Constitutional stage of the judiciary reform

Political power declared that after judiciary reform of 2010 and introduction of the new Criminal Procedural Code in 2012 appropriate changes of the Constitution were regarded as the next reform step. It was also a requirement of the European structures.  

On July 4, 2013 the President submitted to the Supreme Rada the draft law on changes to the Constitution of Ukraine stipulating the strengthening of judges’ independence guarantees[3]. Earlier the draft law was positively assessed by the Venice Commission. It is noteworthy that the draft law was devised by the Presidential Administration without active contribution from the Constitutional Assembly – an expert consultative and advisory body, set up by the President to elaborate appropriate amendments to the Constitution.  

On October 10, 2013 the Supreme Rada expressed its preliminary approval of the draft law by 244 votes. The votes of at least 300 peoples’ deputies at the coming session (starting in February 2014) are needed for the final approval.

The draft law specifically requires non-participation of the Supreme Rada in the process of judges’ corps formation. All the decisions concerning appointments, transfers and discharges of the judges shall be made by the President on the motion from the Highest Council of Justice, and, in case of transfers, by the Highest Qualification Board of Judges. The judges will be appointed for life (currently the President appoints judges for 5 years, and then the Supreme Rada elects them for life).  The Highest Qualification Board will be composed predominantly by the judges elected by the judges’ convention.

The draft law also addresses the legalization of the Highest Council of Justice competences to appoint chief justices and their deputies on the motion from the respective judges’ councils.  

In general terms, the draft law takes into consideration the Venice Commission recommendations, with the exception of the clauses dealing with preservation of two independent bodies -  the Highest Council of Justice and the Highest Qualification Board of Judges, whose functions might be duplicated; too broad scope of judges’ immunity;  and also the clause concerning Prosecutor’s General membership in the Highest Council of Justice ( the draft law only bans Prosecutor General from participating  in decision-making processes with respect to judges).   

Nevertheless, many experts believe that the passing of the abovementioned law will not put an end to the political dependence of the judges, but, on the contrary, will enhance an impact on judicial system under the President, as the President will participate not only in the judges’ appointment, but also in resolving all the matters of their professional growth.  Meanwhile, the Highest Council of Justice and the Highest Qualification Board will remain the instruments of influencing the judicial system, used by the President and his administration. Although the majority of judges are elected by other judges in compliance with European standards, currently the judges’ convention in charge of the process fully depends on the President (the mechanism of this dependence is addressed in more detail below).     

The procrastination in the constitutional process allowed the power avoiding the introduction of other necessary changes in the mechanisms of selection and responsibility of the judges, judges’ self-governance etc. The opposition reluctance to support the Constitutional changes is also convenient for the political power, because under the circumstances the opponents can be accused of hindering the necessary reforms and hampering the process of Euro-integration.  

Judges’ self-governance: serving the interests of the political power

Following 2010 reform the re-organized system of the judges’ self-governance also became politically steered.

The political situation at the time was as follows: the Chief Justice of the Supreme Court V.Onopenko, de facto in charge of the general jurisdiction courts severely criticized the reform. He was supported by the Council of Judges of Ukraine, composed predominantly of the Supreme Court judges.  

Meanwhile Chief Justices of the Highest Administrative Court and Highest Economic Court supported the reform, proposed by the President Yanukovych, which envisaged the broadening of the scope of courts’ competences with simultaneous restrictions of competences of the Supreme Court.   It was at the time that the conflict between the said courts and the Supreme Court arose.

Then the chief justices of the specialized courts had a huge influence on the judges of the administrative and economic courts. The reform writers counted on this influence. Under the new law of 2010 “On Judicial System and Judges’ Status” the two thirds of the highest bodies of the judges’ self-governance (the judges’ convention and the Council of Judges of Ukraine) were composed of the administrative and economic courts’ officials, predominantly loyal to the President   Yanukovych.

As to the judges of the general jurisdiction courts, their first conference under the new law of 2010 was called by the “organizational bureau”, composed of the appellation courts representatives. The Supreme Court was left completely outside of the process. Eventually the control over the conference and judges’ council was taken over by the newly formed Highest specialized court for civil and criminal cases, headed by the people’s deputy from the presidential Party of Regions   L.Fesenko.

The bodies of the judges’ self-governance are in fact appointed: the convention delegates are elected by the judges’ conferences, appointed, in their turn, by the judges’ councils, set up by the same conferences of judges.

The general courts representing the largest vertical in the judicial system are insufficiently represented in the judges’ convention and the Council of Judges of Ukraine.  In particular, the general courts’ judges, comprising about 2/3 of all judges, are represented by less than one third of all the convention delegates from the Council of Judges of Ukraine. Thus, only 30 delegates out of   6 700 judges of the general jurisdiction are represented at the judges’ convention, while 2 400 judges of the specialized courts have the representation of 60 delegates. Other delegates (3 per entity) are elected by the Supreme Court and Constitutional Court.

The XI regular convention of the judges of Ukraine was held on February 22, 2013 with the judges’ participation described above (93 judges out of 96 delegates participated in the event). It is noteworthy that the highest body of the judges’ self-governance not only abandoned any criticism of the judiciary reform and the entire situation in the field of justice, but also stressed the positive changes in this field and expressed its support of the President who initiated the draft laws aimed at improving the actual administration of justice[4].

Almost all the decisions made public by the head, were approved unanimously. In his comment the judge of the Supreme Court V.Kosarev (probably, the only delegate who was at least relatively active in the deliberations) stated that he “had a feeling that all the convention decisions have been prepared in advance”[5].

The Supreme Court: control established

For some time the power was struggling to gain control over the Supreme Court of Ukraine. The Court was stripped of certain competences and its influence was substantially reduced in 2010 allegedly due to its lack of loyalty and for counteracting the judicial reform. 

On May 17, 2013 changes occurred in the Supreme Court leadership. Ya.Romanyuk, formerly the first deputy of the chief justice was elected chief justice. He held the office of the Council of Judges’ of Ukraine head till February 2013. Right after the elections the new chief justice promised to restore the Supreme Court influence lost as a result of 2010 reform.

As early as October same year the respective draft law “On introducing changes into some legal acts of Ukraine regulating the Supreme Court of Ukraine competences” was submitted by the people’s deputies close to Presidential Administration to the parliament.[6] By the way, it was not the first instance of giving promises with respect to the restoration of the Supreme Court influence with the goal of electing Presidential Administration protégée as chief justice at the Supreme Court Plenum.   

Under the draft law the following competences should be granted to the Supreme Court:

- providing mandatory conclusions on the correct interpretation of material laws or procedural law in defining relevant jurisdiction on the request of the heads of appellation courts, allowed for consideration in the Supreme Court by the highest specialized court; 

- providing mandatory conclusions on defining relevant jurisdiction in specific cases on the request of cassation courts ( respective  highest specialized court );

- reviewing cases on the grounds of different interpretations of a norm of procedural law  by the courts (cassation court) in defining relevant jurisdiction;

- reviewing cases on the grounds of non-compliance of the cassation court ruling with  the decision of the Constitutional Court or the conclusion spelled out in the court ruling of the Supreme Court.  

The restoration of the Supreme Court competences dating back to the soviet system of justice was also proposed, i.e. supplying the general jurisdiction courts with explanations-recommendations with respect to the use of legal norms; studying, alongside with the highest specialized courts practices of norm use (actually this requirement earlier served to justify the right to organize all types of inspections for all the courts of lower level, especially when chief justice of a court had to be removed).   

The Supreme Court conclusions supposedly shall have the force of a law, as non-compliance of a court ruling with such conclusions will become the ground for appealing the ruling in appellation or cassation court.   

To ensure the judges’ support of the draft law an increase in salary for the access to state secrets was proposed, as well as pension increase for the retired judges.

At the same time the draft law retained the procedure for submitting cases to the Supreme Court by the highest specialized courts, as well as the competences of the highest specialized courts to review the cases independently without remanding them to the Supreme Court, if the European Court for Human Rights passes a ruling against Ukraine and the violation in question will involve non-compliance with the procedural law requirements. Obviously, this provision is related,  in particular, to the possibility of Yu.Tymoshenko’s verdict revision following the next hearing in the  the European Court for Human Rights, and the Supreme Court’s actions remain unpredictable as far as political power goes.

The need for enhancing the role of the Supreme Court arises from the Venice Commission conclusion, which pointed out only political motives for restricting its authority in 2010[7]. However, the combination of submitting this draft law to parliament and the election of the new Supreme Court Chief Justice gives grounds for concern. It looks like another step of strengthening political influence on the judicial system alongside with the restoration of certain administrative (out of court) levers in the Supreme Court operation.  

The draft law[8]  was signed by the leaders and people’s deputies of the two opposition fractions – “Bat’kivshchyna” and “UDAR”. It differs substantially from the draft law devised by the Supreme Court and Presidential Administration. 

This draft law envisaged the restoration of the Supreme Court competences on reviewing cases addressing controversial use of the procedural law norms. It also contains the proposal to empower the Supreme Court to remand cases for the Supreme Court review when need arises.

The Supreme Court also got the competences on reviewing cases when a cassation court ruling is contrary to the Constitutional court decision or legal position or interpretation spelled out in the Supreme Court ruling. The Supreme Court should be composed of 72 judges instead of 48.  

The clauses enabling an individual access to justice represent an important novelty. The courts will be deprived of possibility to reject consideration of a case. The conflict issues of courts’ jurisdiction will be addressed by the Supreme Court. If a court of different jurisdiction should handle the case, it should be sent to that court.  

The latest draft law submitted by the opposition looks the most well-grounded among others, although it needed finalizing ( especially in the part concerning the refusal of the Supreme Court and highest specialized courts  to provide clarifications on the use of law outside court procedures; rejection of unjustified increase in  the Supreme Court composition).

Access to justice

Under the law “On introducing changes to some legal acts of Ukraine regulating payment of court fees” of September 19, 2013 twice higher tariffs for court fees have been established for almost all the categories of cases. Moreover, the legislator introduced the court fees even if a person is penalized by the court for an administrative infringement.

The fair balance between the court fees paid for filing a petition in administrative and civil cases has been disrupted.

Earlier the amount of court fee for filing a petition against a body of authority in administrative case was smaller, but the introduced changes obliged the petitioner to pay twice as much if property claims against a body of power are lodged (0,2 % of minimum wages, but not less than 1,5 minimum wages and no more than 4 minimum wages) – as opposed to civil claims against a private agent under the civil law  (1% of the claim cost, but not less than  0,2 minimum wages and not more than 3 minimum wages).

Therefore after introducing the changes in 2013 the administrative claims’ fees amounted to 1 720.5 UAH, while civil cases fees remained at the level of 229.4 UAH. Noteworthy, the bodies of authority are exempt from paying the fee in property claims against private individuals.

In fact the legislator stipulated that only one tithe of the administrative claims’ fees is to be paid, while the court will collect the rest after the case is resolved, according to the  compensation obtained.  Nevertheless the fear to lose such a lump sum hinders many claimants from filing property claims against bodies of authority. This risk is also enhanced by the fact that the administrative courts are reluctant to make decisions on compensation to be paid by the administrative bodies.    

Hence, the changes in the law defining court fees significantly restricted access to justice, especially in cases related to private property claims against the bodies of authority.  

Selection of judges and their responsibilities

Formally the decisions on judges’ appointments, transfers and removals are made by the President and the Supreme Rada, but in fact they are guided only by the motions from the Highest Council of Justice and Highest Qualification Board of Judges. Both bodies play key role in the formation of the Judges’ corps and holding the judges accountable, and are, to a certain extent, under presidential and parliamentary majority control. No wonder that in many matters (judges’ transfers, their appointment to administrative offices) they act in a synchronized mode, although the decisions are made independently.  

Selection of judges to the courts of higher instances and also for the positions of chief justices and their deputies is being done “in chambers.” The law not only fails to provide objective selection criteria, but stipulates no competition to that end. Characteristically, the majority of judges is transferred from Donetsk and Lugansk oblast’ to hold leading offices in the courts. This “policy” led to a large number of judges’ vacancies in the said oblast’s. [9] Slight progress has been registered in the procedure of primary judge’s appointment: despite certain manipulations, some candidates got to the office by way of fair competition, without prior agreements or clout. But the mechanisms of career advancement and judges’ responsibility, which present the largest threat for a judge’s independence, almost annihilated this progress.

In 2013 the power continued applying the mechanisms of disciplinary responsibility to impose pressure on judges. The basics for judges’ responsibilities are spelled out in the law in such a way that any judge can be held liable. Thus, for making “independent” decisions, a judge can lose his/her office, for example, for non-adherence to the time-frames designated for the consideration of a case. In practical operation, due to the judges’ work overload, this becomes the main pretext for bringing a judge to disciplinary responsibility.[10] The public monitoring results testify[11] that the disciplinary practice is inconsistent and often acquires the characteristics of targeted persecution. So, the justice is selective with respect to judges as well. These developments hamper the judges’ operation and make them the censors of their own decisions, even under the absence of any guidance as to the specific outcomes of a court decision.

These and other mechanisms of the judges’ dependence have been revealed, in particular, in the decision passed by the European Court for Human Rights in the case “O.Volkov vs. Ukraine” of January 9, 2013. The European Court for Human Rights made a note that under a disciplinary body discretion any action can be classified as the violation of oath and lead to the removal of a judge. Within the focus of the use of disciplinary mechanism to influence judges, the European Court for Human Rights obliged Ukraine to reform the system of judges’ discipline.[12].

Politically steered justice

The courts developed into the means for achieving political and commercial goals, in lieu of performing their role as the instrument of human rights’ protection.      Political power has been using courts to resolve political issues (e.g. stripping the opponents of their deputy mandates, continuance of mayor and city council elections in the capital).   

The administrative courts, sticking to the prevailing tendencies of former years kept banning many peaceful gatherings under the false pretexts. Virtual absence of decisions classifying the violations in resolutions, actions or inertia manifested by the President and higher state bodies and officials is most eloquent in itself. 

The Constitutional Court, which is used to justify constitutionally dubious, but badly needed decisions, remains a trustworthy ally for political power. The practice of the Constitutional Court is politically predictable. The Constitutional Court used to ignore its earlier practices based on political expediency. In 2013 the power kept renewing the composition of the Constitutional Court, appointing loyal judges. As a result, for the first time the Constitutional Court has in its ranks the majority of judges (10 out of 18) with the experience in the inquest and investigation bodies; 9 – with the prosecutor’s office background. Less than a half (seven judges) grew professionally in Donetsk or Lugansk oblast’. O.Tupytsky became a new, the seventh, judge from Donetsk. He used to work in the prosecutor’s office, and, like the majority of judges in the Constitutional Court, had no prior expertise in the constitutional law. Only four judges in the Constitutional Court have scholarly background, specifically dealing with the constitutional law. The composition of the body under discussion fails to meet the European standards.[13]

Although judiciary reform substantially weakened the influence of the chief justices on the judges, the courts’ heads still are perceived as the “center” representatives, as they are appointed by the Highest Council of Justice[14] on the motion from the council of judges of the general courts, economic courts or administrative courts.

In cases of judges’ non-compliance with the court heads’ recommendations, they can be disciplined by the Highest Council of Justice or the Highest Qualification Board of Judges.

In practice the judges’ councils of the respective courts, the Highest Council of Justice or the Highest Qualification Board of Judges, President and the Supreme Rada act in the totally harmonized way in personnel issues and in the appointment of the courts’ heads. Very often the judges recently transferred from another courts (predominantly from Donbass) are appointed to hold the office.    

Recommendations

1. Finalizing the draft law on changes to the Constitution, approved earlier by the Supreme Rada, with respect to the enhancement of guarantees of the judges’ independence, aimed at complete implementation of the Venice Commission conclusions and due consideration to the opinion of the Constitutional assembly.

Finalizing procedure should cover the following areas:

- President should be empowered to appoint a judge on the motion from the the Highest Council of Justice, but should not be involved in the judges’ transfers or removals; 

- the Highest Council of Justice should choose the court where the judge would work or transfer him/her to another court on the basis of competition;

- a standing qualification and disciplinary collegiums within the framework of the Highest Council of Justice in  lieu of the Highest Qualification Board of Judges should be set up;

- The appointment of the courts’ heads should become the prerogative of the judges’ self-governance bodies; 

- The concept of judges’ immunity should be narrowed to the functional aspects;

- Prosecutor General should be removed from the Highest Council of Justice;

- Reject the proposal of increasing the retirement age for the judges up to 70 (the proposal to increase the minimum age for the judges from 25 to 30 is also worth revision, considering the need to have more representatives of young generation among the judges ‘corps – i.e. young professionals with knowledge of foreign languages and appreciation for the European values).   

2. The constitutional changes should be accompanied by the whole set of amendments to the law regulating court system, judges’ status and administration of justice, otherwise they will only increase the judges’ dependence. The aforementioned amendments should be introduced even prior to the changes in the Constitution.

They should mandatorily address:

- the reform of the judges’ self-governance system.  It should be simplified by cutting off the appointing bodies – the judges’ conferences and councils of the general and specialized courts, so that each court could send its representative to the higher bodies of the judges’ self-government.  The number of delegates will probably grow as a result, but imposing political pressure on the larger of judges will become more difficult.  Besides, the authority to appoint the courts’ heads should be vested in the judges’ meetings; 

- the reform of the judges’ selection. The mechanisms of competition in judges’ career growth with objective criteria should be devised;

- the reform of the judges’ disciplinary responsibility. The grounds for the disciplinary responsibility should be spelled out precisely; commensurate sanctions and statutes of limitations should be defined for the disciplinary responsibility; the contestant procedure for disciplinary action should be established; the uniform disciplinary body should be set up.  

- the increase of the Supreme Court role in establishing consistent judicial practice. The draft law, introduced by the “Bat’kivshchyna” and “UDAR” fractions, can be used as framework document, with the amendments concerning the rejection of clarifications to be provided by the Supreme Court and highest specialized courts on the use of laws beyond the court procedures,  as well as the rejection of the unjustified increase in the composition of the Supreme Court;

- revision of the court fees’ tariffs. The discrimination of claimants against power bodies seeking property damages should be banned.  

 

[1] Prepared by R.Kuibida and T. Ruda. Center for political and legal reforms.

[2] Nationwide sociological poll “Courts and judiciary reform in Ukraine: public assessment” // national security and defense 2-3 (139-140), 2013 .// Internet source: www.uceps.org.

[3]The draft law on changes to the Constitution of Ukraine stipulating the strengthening of judges’ independence guarantees #2522 of July 4, 2013  // w1.c1.rada.gov.ua

[4]Decisions of  ղ judges’ convention of February  22,  2013 // court.gov.ua.

[5] Convention of the judges of ǿ : // ua.racurs.ua.

[6] The draft law “On introducing changes into some legal acts of Ukraine regulating the Supreme Court of Ukraine competences” # 3356 of October 4, 2013  // w1.c1.rada.gov.ua.

[7] Joint conclusion on the Law of Ukraine “On Court system and judges’ status”  #588/2010 of October 15-16, 2010 prepared by the Venice commission and Directorate for the technical cooperation of the Directorate General for human rights and legal issues of the CE.// Internet source: http://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2010)026-e.

[8] Draft law on introducing changes into some legal acts of Ukraine regulating the competences of the Supreme Court of Ukraine as the highest judicial body within the system of the courts of general jurisdiction # 3356-2 of October 24,  2013 Internet source: w1.c1.rada.gov.ua.

[9] No one is left to administer justice to Donbass residents   // www.pravda.com.ua.

[10] As of first six months of 2013, the average monthly rate of cases filed with the general court per judge amounts to  63.5.  It means that to avoid disciplinary sanctions a judge of a local general court, working without holidays should address at least  three cases a day. In the appellation and administrative courts the average monthly workload per judge amounts to 280.7 cases, i.e a judge working without holidays should address at least 12 cases a day.  

[11] Disciplinary responsibility of the judges in Ukraine: legal and practical problems/ R.Kuibida, M.Sereda. – .: FOP O.Moskalenko, 2013. – 72 p. (pravo.org.ua).

[12]Decision passed by the European Court for Human Rights in the case “O.Volkov vs. Ukraine” of January 9, 2013. // www.minjust.gov.ua/file/26531

[13]Experts claim that another Donetsk judge in the CC in fact invalidates its independence // www.unian.ua.

[14] The Constitution does not stipulate this competences among the competences of the Highest Council of Judges, the list of which is exhaustive.