7 features of Ukraine’s judicial degradation since the 2010 judicial reforms
Almost two years have passed since the adoption of the new Law on the Judiciary and Status of Judges. Unfortunately, all fears that this Law would have negative consequences have proved justified. We are furthermore seeing a trend towards rejecting the few achievements there had been or which still remain in this Law. The crisis in the justice system has recently taken on new shape as seven key problems demonstrate.
1. Selection of justice: manipulation within the framework of the new rules
In 2011 the first selection of judges took place according to the new rules. Lack of transparency in marking the anonymous tests, as well as the failure to make the test tasks public after the selection process was over prompt doubts as to the fairness of the selection. Moreover some judges who did not receive a high score in the rating were first appointed to provincial courts, then immediately after that, at the beginning of 2012, without any competition being announced, they were moved to courts in Kyiv.
The transfer of judges to higher-level courts was made without competition which is not even envisaged by the Law. the selection of such judges is carried out behind the scenes, based on connections.
It has become a pattern in the last two years that a large percentage of the judges are moved to Kyiv courts from the Donetsk region. From 1 January 2012 out of 10 judges transferred by parliament to Kyiv courts from other regions, 6 were from the Donetsk region. It is specifically due to such transfers that the largest number of vacancies is in the Donetsk region.
2. Pressure on judges through mechanisms of liability
In its Resolution on the Functioning of Democratic Institutions in Ukraine, No. 1862 (2012), the Parliamentary Assembly of the Council of Europe [PACE] expressed deep concern over the lack of an independent judiciary and numerous reliable reports of disciplinary measures or dismissals of judges initiated on the basis of complaints from the Prosecutor’s Office following rulings which the Prosecutor did not agree with. Such practice is one of the reasons for a reduction in the number of acquittals (which fell to 0.2 percent in 2011) and the widespread use of remand in custody during criminal investigations.
On 28 April 2012 President Yanukovych submitted Draft Law No. 10425 on increasing safeguards of judicial independence to parliament. This bans the Prosecutor from initiating calls for disciplinary proceedings against judges where the case is still being held and the Prosecutor is a party to it. While welcoming this proposal, the law, if passed, can unfortunately not change the situation significantly since where an acquittal is received, the Prosecutor often demands that the judge be held liable for a fault in a totally different case, for example, for missing the time deadlines on examining a case. If the judge supports the prosecution’s position, the Prosecutor does not normally use information against the judge.
It should also be noted that the levers for holding judges liable do not just pose a threat from the Prosecutor. The very fact that the disciplinary bodies – the High Council of Justice and High Qualification Commission of Judges – are under the control of those wielding political power forces many judges to be loyal to those in power, even without the latter making any overt requests. The grounds set down in the Law for judges’ liability (for example, infringing the time restrictions on examining cases) given their large workload means that pressure can be brought to bear on any judge, and unfortunately is in practice.
3. Politicization of the justice system
The tendency by those holding political power to make use of the courts has increased still further over the last year. This is seen in the numerous criminal prosecutions of members of the opposition which end with the courts fully supporting the position of the prosecution. Around 90 percent of all applications from the local authorities to ban peaceful gatherings, bring administrative charges against authors of leaflets etc with messages which those in power didn’t like or against participants in peaceful gatherings, etc, were allowed.
Loyalty to those in power is also being demonstrated by the Constitutional Court which has over recent times only passed judgements which are convenient to the regime and which often contradict their own previous judgements. For example, it has:
- permitted the Cabinet of Ministers to regulate the size of social assistance regardless of the fact that the amount is stipulated by law;
- created the possibility of accusing journalists or others of gathering or circulating information, including about criminal records, disciplinary measures, professional education and family ties of politicians and officials at all levels;
- allowed the President to dissolve courts and transfer judges, although these powers are not set down in the Constitution;
- prohibited courts from suspending the force of acts issued by the President and parliament before a final judgement is passed in the appeal against them.
4. Attempts to increase pressure through chief judges
Draft Law № 9740 on improving some provisions regarding the organization of the judiciary is presently under parliamentary consideration. The bill was drawn up by Serhiy Kivalov and Dmytro Shtenov, both of whom played an active role in formulating the original Law on the Judiciary and Status of Judges. The bill envisages returning chief judges their supervisory powers with relation to the court’s judges and giving them the right to specify judges’ specialization. This will make it possible to legally bypass the automated system for distributing court cases. At present judges’ specialization is determined by a meeting of judges of the relevant court.
The chief judges were deprived of these powers as part of the judicial reforms in order to reduce judges’ dependence. Since the chief judges have been replaced t over the last two years by more loyal candidates, attempts are being made to reinstate the chief judges’ levers of influence so that judges become easier to control.
Draft Law 9740 will also allow judges to receive varying remuneration, while at present there are restrictions linked with the fact that remuneration has very often been a veiled form of bribing judges.
5. Increased secrecy of the judiciary
On 20 October 2011 the Verkhovna Rada passed amendments on the Law on Access to Court Rulings which mean that the list of court rulings to be added to the Single Register of Court Rulings is approved by the Council of Judges of Ukraine. A number of analysts have stated that this move by the legislators undermines the Register as a means of public scrutiny over the work of the judiciary. Previously the Law on the Register required that all court rulings handed down by general jurisdiction courts were added. In February this year the Council of Judges approved a list which will mean that many important rulings will not be placed in the Register.
These are judgements from high specialized courts on whether cases should or should not be passed for examination to the Supreme Court; judgements from the High Administrative Court on returning without consideration civil suits at first or final level , for example, in cases against the President or Verkhovna Rada; the majority of decisions in cases involving administrative offences (aside from customs and corruption offences).
Concealment from the public of all these court rulings does not enhance the authority of the judiciary but on the contrary undermines public trust.
On 24 April this year the Verkhovna Rada also cancelled the requirement that the income declarations of judges and members of their families be published on the Internet. Previously the Law on the Judiciary and Status of Judges demanded that copies of judges’ tax declarations needed to be posted on the official website Судебная власть Украины. Publication of judges’ income was supposed to become a way of fighting corruption since it was not difficult to initiate a check regarding a judge whose real financial situation differed from that declared. This progressive norm was never in fact implemented, neither in 2011, nor now. However now the declarations will only need to be presented to the court where they work.
According to the Law on the Principles for Preventing and Countering Corruption, only judges of the Constitutional Court; Supreme Court and high specialized courts need to make their declarations public in the official print publications of those courts. The declarations need to be submitted by 1 April each year, and published within 30 days of that. Yet despite even these requirements, not one declaration has yet been published.
6. The use of powers and make up of the Supreme Court for political haggling
On 20 October 2011 the Verkhovna Rada passed amendments to the Law on the Judiciary and Status of Judges regarding the status of the Supreme Court. It was claimed that the law was needed in order to take the opinion of the Venice Commission into account, with that body having previously criticized the Law on the Judiciary and Status of Judges for radically reducing the role of the Supreme Court in the judicial system. In fact, however, the Law had nothing to do with implementing the conclusions of the Venice Commission. For example, the grounds for examination of cases by the Supreme Court remain the same (non-equal application of norms of substantive law by cassation-level courts, a judgement from an international court body finding that Ukraine is in breach of its international obligations; when examining a case in the court). What is more, the second role listed can be undertaken by the relevant high specialized court if Ukraine’s violation of its international obligations is the result of breached procedural norms.
The amendments to the Law were in fact linked with the imminent election at the Plenum of the Supreme Court of a new Court President. The increase in number of judges from 20 to 48 was supposed to be alluring for Supreme Court judges. There had been 47 and the positions of 20 of them were in danger. However the amendments did not help to get a Supreme Court Head loyal to the political regime appointed. It is not out of the question that the Supreme Court will have some of its powers reinstated, but only after those with political power can establish control over it.
7. Disregard for European Court of Human Rights judgements
Over recent times, the European Court of Human Rights has indicated a number of systemic problems in Ukraine which require urgent resolution, including through legislative means. This applies to the non-enforcement of rulings by domestic courts (Judgement in the Case of Yury Ivanov v. Ukraine from 15 October 2010; insufficiently warranted court orders remanding a person in custody or extending the period of remand; holding a person in custody without a court order or on the basis of a court order which does not stipulate the timeframe (Judgement in the Case of Kharchenko v. Ukraine from 10 February 2011); use of administrative arrest for the purposes of prosecution for a criminal offence (Judgement in the Case of Balatsky v. Ukraine from 3 November 2011).
None of these issues has been totally removed. Furthermore, this year the European Court of Human Rights has found that the pilot judgement in the Case of Yury Ivanov v. Ukraine was not enforced within the stipulated timeframe, and that it must therefore return to examining the thousands of cases involving failure to enforce the rulings of domestic courts.
In order to overcome these problems, reforms are needed to legislation on the judiciary in accordance with the conclusions of the Venice Commission.
The following must be ensured:
1. Transparency of all stages of selection of judges and the competition principles need to be stipulated for judges’ promotion.
2. Justice and observance of adversarial principles of disciplinary procedure. In order to prevent opportunities for pressure on judges the grounds for disciplinary liability and dismissal of judges must me clearly and narrowly defined. There should also be a broader list of disciplinary penalties can be applied depending on the gravity of the offence.
3. Judges’ self-government needs to be strengthened, and proportionate representation of judges from each jurisdiction ensured. The system of bodies of judges’ self-government needs to be simplified, leaving meetings of judges at the level of each individual court, the Congress of Judges of Ukraine and Council of Judges of Ukraine.
The distribution of powers between the chief judge and meetings of judges should favour the latter since the chief judge should not be the judges’ boss.
4. Until the makeup of the High Council of Judges is brought into line with European standards (this requires amendments to the Constitution), the role of the High Council of Judges in the process of the first appointment of judges should be reduced. The provision of the Law on the Judiciary and Status of Judges which gives the High Council of Judges power to appoint and dismiss chief judges and their deputies should be revoked.
5. The trend towards increasing secrecy of the judiciary must be reversed. Only transparency of the judiciary can convince members of the public of the will for improvements and increase its authority.
6. The Supreme Court should be given effective judicial powers to ensure uniform application of norms not only of material, but also of procedural law. It should be the arbiter between courts of different jurisdiction and guarantee that courts of different jurisdiction do not refuse to examine cases, pointing to each other. Whether there is a dispersed system, people have problems deciding which court has competence. This duty is therefore best vested with the court, with it having to send the case to the competent court if it decides that it does not have jurisdiction. In the case of difficulty determining which court has jurisdiction at the level of first instance court, the case should be passed to the Supreme Court for a decision in the matter.
7. Legislative measures should be used to ensure enforcement of European Court of Human Rights judgements containing requirements on the resolution of problems of a general nature. For example, resolution of the problem of non-enforcement of court rulings requires review of the moratorium established through law on forced sale of the property of enterprises where the State’s share in the statutory funds are 25% or over, and of the impossibility of using bankruptcy procedure against such enterprises, as well as against enterprises of the fuel and energy industry.
The problem also needs to be resolved of non-enforcement of court rulings in pension and other social disputes. The relevant state bodies which are in arrears should immediately raise with the authorities the issue of changes to the State budget in order to finance enforcement of court rulings passed in favour of the claimant in such cases. In cases between private individuals it would be sensible to introduce non-state bailiffs. Development of this institution should remove the Bailiff Service’s monopoly and in conditions of competition, improve the quality of services on enforcement of court rulings.
Roman Kuybida, Deputy Director of the Centre for Political and Legal Reform
Yurydychny Visnyk Ukrainy - 2012. - №18-19