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IV. Right to a fair trial: other aspects

[1]

The year 2014 has become the year of great expectations of quality changes in law proceedings, restoration of independent court and trust to judicial power which became a tool for achieving political goals and enhancement of power usurpation during Yanukovych’s regime. After victorious Revolution of Dignity, attempts have been made to cleanse judicial authorities from political and corruption influences, enhance its independence and carry out screening of judicial establishment, as well as bring former regime servants to justice. But, in spite of great social demand, the new government has failed to perform a complex judicial reform despite the initiatives demonstrated by expert environment; the former government representatives have shown the intention to preserve their control over the courts, and the judges themselves strongly resisted to any attempts to perform judicial staff screening.

1. Parliamentary Influence upon Courts

After rolling back the Constitution to its pre–2004 version and restoration of the parliamentary presidential system, the Verkhovna Rada decided to get back its influence upon courts as there was no trust to the then staff of the High Council of Justice and the High Qualification Commission of Judges. On February 23, 2014, the Parliament adopted the Law “On Amendments to Certain Laws of Ukraine on Individual Matters of Judicial System and Status of Judges”[2], according to which it undertook significant authority to resolve personnel matters in the judicial system. The right to appoint presiding judges and their deputies was delegated from the High Council of Justice to the Verkhovna Rada, although the Constitution does not provide any such authority to any of the specified agencies. Besides, vast powers regarding personnel matters were granted to the parliamentary committee on rule of law and justice. Just like before the 2010 reform, the committee started preliminary consideration of matters regarding election of judges and their dismissal, before submitting these matters to the debating chamber of the Verkhovna Rada. Moreover, the law established that the High Council of Justice may approve decisions on matters within its competence only at presence of preliminary opinions of the respective committee which shall be mandatory. The authors of this law were the member deputies of the specified parliamentary committee who were in opposition at that time and clearly expected to get a major vote in this. But, after the formation of the new government and transition of several deputies to new positions, the majority vote in the committee was obtained by the representatives of former leading party with its permanent head S. Kivalov. Practically, the law hardly worked because the High Qualification Commission of Judges and the High Council of Justice terminated their activity in April 2014, and vacant presiding judge positions in courts were once again filled by boards of judges of the given courts.

2. Attempt to Enhance Judicial Power Independence

On April 8, the Verkhovna Rada adopted the Law “On Renewal of Trust to Judicial Power in Ukraine”[3], aimed at enhancement of judge independence. The Law guaranteed the society liability of judges involved in obvious violations of human rights during Yanukovych’s regime; the Law also ruined the administrative vertical line of hierarchy in the judicial system, establishing opportunities for judges to overcome negative consequences of administrative and political influence exerted upon them.

With the adoption of this Law, all presiding judges and their deputies have lost their positions (although they still remained judges), and the judge personnel of each court have obtained a possibility to elect new presiding judges at judge meetings. Also, the term of occupying an administrative position has been cut to one year, but no more than two years in a row. Meanwhile, legislators failed to provide preventive measures which would prevent former presiding judges and their deputies from taking back their former positions. So, according to the results of elections which had taken place under new rules, the presiding chairs were once again occupied by the same persons who had occupied them in the times of previous government in about 80% of courts. To keep their positions, former presiding judges and their deputies often used the all too familiar “dirty technologies” — bribery, damaging ballot papers, pressure upon judges. Also, in many courts no alternative candidates were suggested as judges were afraid of negative consequences in case of losing to former presiding judges. In certain courts, former presiding judges took advantage of inactivity of the judge team, and in some other courts they used the fact that a large number of judges were obliged to the presiding judge for their positions in the given court. The script of electing the same people as presiding judges was disrupted only in superior specialized courts under pressure from the community. Thus, the new Law demonstrated judges’ inability and non-readiness to stand for their own independence.

One of the important provisions of the Law is termination of authorities of all members of the High Council of Justice and the High Qualification Commission of Judges (except for those who are members by position) who were directly or indirectly elected and appointed by former government. Both these agencies play a key role in forming judiciary manpower and bringing judges to justice. The Law established that the staff of these agencies had to be formed anew, at that a ban to hold respective positions by persons, who had been occupying them as of the moment this Law entered into force, was imposed.

It should be noted that the previous government, along with the old members of the High Qualification Commission of Judges and the High Council of Justice had taken to various manipulations aimed at leveling the changes and preserving their influence upon the courts via these institutions which are so important for judicial power. For instance, on March 20, a draft law was registered in the Parliament which withdraws restrictions on membership in the High Qualification Commission of Judges and the High Council of Justice, as established by the Law “On Renewal of Trust to Judicial Power in Ukraine”[4]. If adopted, this draft law could bring back people with doubtful reputation to the High Qualification Commission of Judges and the High Council of Justice.

Other methods were also used to resume operation of the High Qualification Commission of Judges and the High Council of Justice with its old personnel list. For example, “screened” members of the High Qualification Commission of Judges attempted to get back through courts[5]. Also, the staff of the High Qualification Commission of Judges tried to “legitimize” themselves by establishing a public scientific and advisory council which included not only respected scientists but also people of questionable integrity[6].

Another problematic situation came about the composition of the High Council of Justice. People’s deputies chose to ignore the resolution on appointment of new members to the High Council of Justice by their quota. The judge convention managed to elect members of the High Council of Justice only in September. The decision to appoint new members of the specified agency by quotas of the President (at that time, acting President O. Turchynov), the convention of advocates and representatives of higher schools of law and scientific institutions were successfully appealed against in courts by the Parliament members concerned[7]. It was the decision of the conference of prosecutor’s office employees regarding appointment of the High Council of Justice members by their quota which actually did not become a subject of court proceedings. Thus, the formation of the High Council of Justice staff as of the end of 2014 has not been completed, and a number of appointments to this agency have been blocked in court. Until this agency is formed under the new law, nobody can be appointed to or dismissed from a position of a judge.

The newly-staffed High Qualification Commission of Judges began working only in the end of 2014. It resolved to reconsider all decisions, made by the previous illegitimate staff which was adopted after its authorities had been terminated by law. Unfortunately, in the majority of cases all deadlines for imposing disciplinary penalties upon the judges have expired.

The Parliament did next to nothing to reform the system of disciplinary liability of judges. The remarks laid out in the resolution of the European Court of Human Rights in the case “Oleksandr Volkov v. Ukraine” were left unnoticed[8]. Although, it is worth mentioning that on May 7, 2014, the draft Law “On Amendments to Certain Legislative Acts of Ukraine (on Improvement of Measures to Renew Trust to Judicial Power)”[9] was registered in the Verkhovna Rada, which stipulated reformation of the system of disciplinary liability of judges in accordance with the European standards. Thus, the draft law suggested withdrawal of disciplinary cases and cases on dismissal of those members of the High Qualification Commission of Judges and the High Council of Justice who performed screening of judges, from the resolution procedure; instead of one reprimand, a wider range of disciplinary sanctions was stipulated which would meet the principle of proportion; terms of limitation were determined for dismissal for oath breaking; the High Council of Justice was guaranteed a personnel in which the majority would be judges appointed by the judge convention (the President, the Parliament, assemblies of advocates and representatives of higher schools of law, the All-Ukrainian Conference of Prosecutor’s Office Employees shall appoint a part of the High Council of Justice members among those judges nominated by the judge convention). Also, a “screening mechanism” was envisaged for the presiding judges who stayed from the regime of Yanukovych. Such persons shall not be nominated for administrative positions for the following three years. So, the adoption of this draft law would enable the establishment of a fair and just procedure to punish judges which would conform to the European standards of independence, and also would prevent the violator judges from returning to their positions on formal basis only. Still, the Parliament never got down to considering this draft law before the October elections.

3. New Format of Judicial Self-Government

The Law “On Renewal of Trust to Judicial Power in Ukraine” has had a certain achievement: it resulted in changes to the system of judicial self-government. The convention of judges of Ukraine and the Council of Judges of Ukraine stopped being institutes of political influence upon judges and turned into truly representative agencies after obtaining a possibility to be formed based on considerations of proportional representation of judges. For example, the convention of judges is formed in proportion of one representative per twenty judges. This means over 400 representatives instead of 96, as it was before. The new Council of Judges consists of 40 members now (as compared to only 11 previously). It includes judges proportionally from all levels and specializations. Earlier, the Venice Commission was criticizing the situation when 6 thousand judges of general jurisdiction courts were represented by only a third in these agencies, while the other two thirds were the representatives of about 2 thousand judges of economic and administrative courts.

Another important aspect is the fact that the presiding judges and their deputies are deprived of the option to act as representatives at the convention of judges and members of the Board of Judges. Before, the judicial self-governing agencies had mostly featured the presiding judges, and that was why the judicial self-governing agencies reflected and protected the interests not so much of the judicial manpower as the interests of presiding judges.

At the same time, it should be noted that the new law not only failed to simplify the system of judicial self-governing agencies by preserving conferences and councils of general jurisdiction and specialized courts, but made them even more complicated. The norms regulating the procedure of formation of the judicial convention turned out to be extremely contradictory and inconsequent, thus it was not possible to avoid election of representatives to the convention of judges “from the top”, i.e. by the conferences of judges held in Kyiv; filtration of local court representatives at the conferences by courts of appeal also failed.

4. Judicial Power Cleansing

The Law “On Renewal of Trust to Judicial Power in Ukraine” envisaged establishment of the Temporary Special Commission on Inspection of General Jurisdiction Court Judges attached to the Verkhovna Rada of Ukraine, to inspect judges involved in prohibiting peaceful assemblies and repressions against their participants. The Commission held a number of sessions considering cases of judges. A lot of judges under investigation failed to attend the session claiming health problems on the day of Commission session. The Commission members complained about the difficulties in investigating the cases since some judges, in an attempt to avoid liability, took to destroying case papers, threatening and other manipulations to prevent access to cases on prohibition of peaceful assemblies[10]. Still, it did not stop the Commission from adopting a number of opinions on oath breaking by judges, which were later forwarded to the High Council of Justice. According to law, the latter has to consider these opinions and make a final decision within no more than 3 months. But, given that the High Council of Justice failed to start operating in 2014, there are concerns that the violator judges would remain unpunished. Yet more concerns were fueled by withdrawal of two members from the Commission who were elected by the Plenary Session of the Supreme Court (one member withdrew on his own free will, the other acquired authorities of the High Qualification Commission of Judges member). This resulted in loss of full power by the Commission.

On October 16, 2014, the Law “On Government Cleansing”[11] entered into force, which also concerned judges. According to its provisions, the judges who passed judgments in cases on administrative violations and criminal cases against peaceful assembly participants who were later released from such liability based on three laws “on amnesty”, shall be subject to dismissal from their positions. Former members of the High Qualification Commission of Judges and the High Council of Justice shall also lose their positions and shall not be able to work in the public sector for the nearest 10 years. Besides, the law stipulated inspection of their property declarations (previously these declarations were normally stored in courts). According to the results of such inspection, a presentation can be submitted to the High Council of Justice on dismissal of such judge.

The law was criticized by the Venice Commission, particularly, because for one and the same judges the legislator had established two mutually exclusive mechanisms of authority termination — dismissal based on inspection results, and screening due to the very fact of making certain decisions. The Ukrainian government has undertaken to revise the Law “On Government Cleansing” taking into account the remarks of the Venice Commission.

5. Problem faced by the Constitutional Court

During Yanukovych presidency, the Constitutional Court became his reliable ally and was always used for legalizing resolutions necessary for the government yet doubtful from the point of view of the Constitution. After Yanukovych’s escape, on February 24, the Verkhovna Rada approved the resolution “On Reaction upon Facts of Oath Break by Judges of the Constitutional Court of Ukraine”[12]. By this document, the people’s deputies recognized violations of the main principles of the Constitution by the Court when it had adopted resolution on return to the Constitution wording of 1996, which resulted in the change of constitutional regime. Meanwhile, the Parliament dismissed judges of the Constitutional Court, who had voted for the respective decision, for oath break, and appointed new competent persons. The same measures were offered to the President and the convention of judges regarding respective judges of the Constitutional Court elected by their quotas. It should be mentioned that neither the then acting head of state, nor the current President fulfilled the given recommendation. The convention of judges also omitted consideration of this important matter, although it did approve the procedure of appointment and dismissal of the Constitutional Court judges by their quotas.

At the same time, two judges dismissed by the Parliament appealed to the Supreme Administrative Court on their rehabilitation, and the court awarded the judgment in their favor[13]. To tell the truth, in December 2014, the Supreme Court acknowledged dismissal of one of these judges legitimate. Yet, the majority of judges in the Constitutional Court continue to include judges controlled by former political authorities or “time-server” judges. An interesting fact: since June 2014, the Constitutional Court has not approved any decision on the merits.

6. Justice Problems in Occupied Territories and ATO Zone

After the annexation of Crimea by Russia in March 2014, over 15 thousand cases pending in the courts of the peninsula practically froze due to the impossibility to administer justice[14]. To resolve the problem in any way at all, the Verkhovna Rada adopted the Law “On Guaranteeing Rights and Freedoms of Citizens and Legal Regime on Temporarily Occupied Territory of Ukraine”[15] on April 15, which changed territorial jurisdiction of respective cases and stipulated their consideration in the courts of Kyiv. Still, legislators failed to envisage any mechanisms to implement this law in practice. There is still no example of a successful venue change for the case. The only more or less efficient way to hear a case for a person concerned is to file it directly to a court in Kyiv when the case can be resolved within the procedural mechanism of resuming lost court proceedings. At the same time, even on condition of case resolution, a problem of enforcing such court decision arises.

In reality, the Crimean courts never stopped operating in practice, but continued to administer justice only a week after Russia had acknowledged occupation of the Ukrainian peninsula, although based on legislation of the Russian Federation. The judges who wanted to keep their office were forced to get Russian citizenship.

In July 2014, the Russian Parliament adopted a series of laws which established a judicial system in Crimea analogous to the one of Russia — with general jurisdiction courts, military courts and courts of arbitration. Their formation is to be completed within a year. Since then, the Higher Judges’ Qualification Board of the Russian Federation has been recruiting judges to these courts. A lot of Crimean judges are rejected when applying for recommendation and nomination to judge positions, especially those whose relatives work at Ukrainian state agencies. They are replaced by judges from other regions of Russia.

With the intensification of combat activities in the territories of Luhansk and Donetsk Regions, the problems concerning judicial protection affected these regions as well. Despite the fact that “judicial” agencies of the so-called “Donetsk and Luhansk People’s Republics” (hereinafter referred to as DPR and LPR) are practically absent, they have their own “police” and “prosecutor’s office” operating there. It is known that court premises inventory has been started in DPR. The “Supreme Court of DPR” website has been launched in a test mode, but, judging from its content, the court is not working. Even then, the court has “a presiding judge” who previously was “acting General Exec of DPR” and before that had worked as criminal investigator of the Investigation Committee of the Russian Federation. The website even has some phone numbers, previously used by the Court of Appeal of Donetsk Region. The content includes draft law texts concerning the judicial system.

There is no escaping the impression that the DPR wants to implement the same judicial system as in the Russian Federation, as they plan to establish general jurisdiction courts and courts of arbitration. On November 20, 2014, a note was posted on the website of the “Supreme Court of DPR” in question stating that military field courts would be working in some regions of the militant-occupied territory.

The LPR did not even get anywhere near establishing courts in 2014. Instead, there is a video posted on the Internet showing the so-called “popular court” where the militants perform quasi-judicial hearing, read out the sentence convicting a person accused of rape to military execution, and those present in the courtroom vote by show of hands and approve the sentence.

On August 12, 2014, the Ukrainian Parliament adopted the Law “On Administering Justice and Criminal Proceedings due to Conduction of Antiterrorist Operation”[16], which also changed territorial jurisdiction of cases considered in the ATO zone. According to the law, the State Court Administration is commissioned with making a list of courts located in the ATO zone where justice administration is impossible, and sending them to presiding judges of superior specialized courts for change of territorial jurisdiction.

Starting from September 2, 2014, 58 courts located in the occupied territory of Donetsk and Luhansk Regions or in the war fighting areas terminated case hearings officially. Presiding judges of three supreme courts changed territorial jurisdiction of these courts and authorized them to forward cases to respective court agencies in the territories controlled by Ukraine. It should be mentioned that case forwarding has not occurred from the majority of courts in practice, as the vehicles transporting them were stopped at the checkpoints of the so-called DPR and LPR, and case materials were confiscated by militants.

Meanwhile, judges and court employees who stayed in the occupied territory were left unemployed although some of them moved to the territory controlled by Ukrainian authorities. To dismiss the matters on transfer of judges and court employees (which is not a few persons), President Petro Poroshenko changed the place of location of the courts by his decree dated November 12, 2014. Thus, 7 largest courts have been moved to the Ukrainian territory from the ATO zone.

So, the economic court of Donetsk Region, Donetsk Economic Court of Appeal and the economic court of Luhansk Region were transferred to Kharkiv. The Court of Appeal of Luhansk Region and Luhansk District Administrative Court were transferred to Severodonetsk, Donetsk District Administrative Court moved to Slovyansk, and Donetsk Administrative Court of Appeal moved to Kramatorsk. On November 26, 2014, three more district courts resumed operation.

At the same time, it is impossible to completely resolve the judicial protection problems in the occupied territories without restoration of state sovereignty of Ukraine in the respective cities and regions.

7. Recommendations

1. To eliminate double mechanism for punishment of judges established by the Laws “On Renewal of Trust to Judicial Power in Ukraine” and “On Government Cleansing”. Preference should be given to the mechanism envisaging establishment of individual guilt of judges in adopting self-willed decisions according to the results of respective inspections. At the same time, activities of the Temporary Special Commission on Judge Screening and the High Council of Justice must be resumed by filling their vacancies. Still, to avoid selective punishment, the principle of inspection by application should be replaced with the mechanism of mandatory screening of each judge who approved respective court decisions.

2. For successful judicial reform in Ukraine which would meet the European standards, it is expedient to take into account the opinion of the Venice Commission on the Law “On the Judicial System and the Status of Judges” of 2010. Amendments to the legislation on the judicial system and the status of judges shall envisage the following:

— Withdrawal of the Verkhovna Rada and the President from the process of transfer of judges;

— Improvement of mechanisms of selection and liability of judges to enhance their independence and liability;

— Simplification and enhancement of judges’ self-government, namely through their participation in the budget formation process;

— Improvement of availability of justice through changes to the procedural laws.

These provisions are embodied in the new wording of the Law “On the Judicial System and the Status of Judges” elaborated by the joint working group of the Ministry of Justice and public initiative “Reanimation Reform Package”. This draft law takes into account over 40 recommendations of the Council of Europe agencies[17], including complete fulfillment of the decision made by the European Court of Human Rights in the “Oleksandr Volkov v. Ukraine” case. Considering other recommendations is possible only after amendments are made to the Constitution. In December 2014, it was filed to the new parliament by people’s deputies O. Syroid, O. Sotnyk, A. Zhurzhii, L. Yemets and I. Krulko[18].

3. Reformation of the Constitution in the sphere of justice shall envisage the following changes:

— transition to a three-branch judicial system, with complete separation from the system of general jurisdiction courts and the system of administrative courts;

— complete withdrawal of the political agencies from the formation of judicial manpower, delegation of these authorities to the Supreme Council of Justice;

— establishment of a new independent agency — the Supreme Council of Justice (to replace the current High Council of Justice, the High Qualification Commission of Judges and the Council of Judges of Ukraine) where the majority of members are judges elected by judges, and the remaining part consists of community representatives;

— renewal of judicial manpower in whole or at least in the higher instance courts.

[1] Section prepared by: Roman Kuibida, Tetiana Ruda, Political and Legal Reforms Center.

[2] Law of Ukraine “On Amendments to Certain Laws of Ukraine on Individual Matters of Judicial System and Status of Judges” No. 769-VII of February 23, 2014. // http://zakon4.rada.gov.ua/laws/show/769-18

[3] Law of Ukraine “On Renewal of Trust to Judicial Power in Ukraine” No. 1188-VII of April 8, 2014. //

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

[4] Draft Law “On Amendments to Certain Legislative Acts of Ukraine” (on membership in the High Council of Justice and the High Qualification Commission of Judges of Ukraine) No. 4915 of May 20, 2014 //

 http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=50966

[5] L. Shutko. “High Qualification Commission of Judges Ways above Law?” //

 http://www.pravda.com.ua/columns/2014/09/1/7036215/

[6] A public scientific and advisory council attached to the Commission was established //

 http://www.vkksu.gov.ua/ua/news/pri-komisii-stvoreno-gromadsku-naukovo-konsultativnu-radu/

[7] L. Shutko. “Struggle for High Council of Justice: First Casualties” //

 http://ua.racurs.ua/548-vyscha-rada-yustyzcii-bogoslovska-vlasenko-kivalov-sud-reforma;

S. Berko. “Judicial Power: Allergic to Reforms” //

 http://www.pravda.com.ua/columns/2014/10/15/7040816

[8] Resolution of the European Court of Human Rights regarding the case “Oleksandr Volkov v. Ukraine” of January 9, 2013 // http://www.minjust.gov.ua/file/26531.

[9] Draft Law “On Amendments to Certain Legislative Acts of Ukraine (on Improvement of Measures to Renew Trust to Judicial Power)” No. 4829 of May 7, 2014 // http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=50851.

[10] Markiian Halabala. “Judges who tried Maidan activists burn cases and pressure Temporary Special Commission”. //

 http://www.radiosvoboda.org/content/article/26628385.html;

Lesia Shutko. “Judge Counteractions to Screening: Terrorizing and Blocking” //

 http://www.pravda.com.ua/columns/2014/10/17/7041076/.

[11] Law of Ukraine “On Government Cleansing” No. 1682-VII of September 16, 2014 //

 http://zakon4.rada.gov.ua/laws/show/1682-18.

[12] Resolution of the Verkhovna Rada of Ukraine “On Reaction upon Facts of Oath Break by Judges of the Constitutional Court” No. 775-18 of February 24, 2014 // http://zakon2.rada.gov.ua/laws/show/775-18

[13] The judge of the Constitutional court who had been dismissed for oath breaking was allowed to work //

 http://www.pravda.com.ua/news/2014/06/26/7030179/;

Resolution of the Supreme Administrative Court of Ukraine: Former Constitutional Court Judge Ovcharenko in Office Again? //

[14] Justice collapse in Crimea, but courts do not rush forwarding Ukrainian cases to mainland //

 http://tsn.ua/ukrayina/u-krimu-pravosudniy-kolaps-ale-sudi-ne-pospishayut-peredavati-ukrayinski-spravi-na-materik-349408

[15] Law of Ukraine “On Guaranteeing Rights and Freedoms of Citizens and Legal Regime on Temporarily Occupied Territory of Ukraine” No.1207-VII of April 15, 2014 // http://zakon4.rada.gov.ua/laws/show/1207-18

[16] Law of Ukraine “On Administration of Justice and Criminal Proceedings due to Conduction of Antiterrorist Operations” No. 1632-VII of August 12, 2014 // http://zakon4.rada.gov.ua/laws/show/1632-18.

[17] List of recommendations of the Council of Europe on judicial reform and prosecutor’s office reform in Ukraine //

 http://pravo.org.ua/2010-03-07-18-06-07/lawreforms/1583-kodeks-rekomendatsii-rady-yevropy-shchodo-sudovoi-reformy-i-reformy-prokuratury-v-ukraini.html

[18] Draft Law on amendments to the Law of Ukraine “On the Judicial System and the Status of Judges” regarding improvement of principles of organization and operation of judicial power according to the European standards 1497 of 17.12.2014 // http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=52976.