Justice reform: what has changed within two years
Changes in the judiciary are significant, but they have not yet become irreversible
Original in Ukrainian: Segodnya, journalist Elena Zvarych
The changes in the judicial system are substantial, but still not irreversible
If the running gear of your car gets damaged after bumping on the road that was last repaired somewhere around Brezhnev times, you should go to the court and sue the organization responsible for maintenance of this section of the road, rather than take your hard-earned money to pay for repair services, sizzling with anger. According to a decision adopted by the Supreme Court this spring, the losses caused by the car damage due to poor road conditions should be compensated by the structure responsible for maintenance of the substandard road section.
Accidents that occur just because of the terrible conditions of the roads, when not only cars are damaged, but people are injured as well, are quite common in Ukraine. Usually all expenses after such accidents were still borne by car owners or insurance companies, but not the entity whose actions or omissions resulted in the accident.
The above judgment of the Supreme Court of Ukraine is just one example of a series of so-called model decisions of the SCU that consolidate a unified case law. This means that when a citizen appeals to a district court with a "typical" problem, for which the decision of the Supreme Court has already been adopted, the district court should make the same verdict. That is to say, this approach put an end to arbitrariness, when the district court in Kyiv adopted certain decision in the same way, while Okhtyrka district court would take a differing decision in the case on similar merits, and Shepetivka local court would pass yet another decision.
The new Supreme Court, whose election in 2016 took place amid loud statements and suspicions of the public, has been functioning for almost a year and receives favorable ratings among lawyers. The new SCU is one of the outcomes of the judicial reform, experts say.
What other changes have taken place over two years, and in what areas of concern should efforts be taken to make the reform irreversible?
Changing the "rules of the game"
First of all, at the legislative, constitutional level, the reform has dismantled the old principle of the dependence of the judiciary from political influences. Actually, the judges never formed a truly separated branch of power, since they were still appointed and dismissed by the decision of the President and the Parliament. Now it is the competence of the High Council of Justice, 10 (in pre-reform times - three) out of 21 members of which are elected at the Congress of Judges.
An important signal of change was that the judges, unlike the MPs, were deprived of absolute immunity, leaving only functional immunity. The judiciary has ceased to be such a mysterious "Masonic lodge", whose internal life and processes were hardly known by the society. The life of judges has become the most open to the public compared to the rest of public servants. There are open competitions, interviews with candidates are broadcast online, judges declare not only their property, but their family's assets, make family relationship declarations, a complete dossier is compiled for each judge, any citizen can simply find it on the Internet. While in the previous decades the legislator "spoiled" the judges with the opportunity to provide partial declaration and did not impose responsibility for incorrectly entered data on the property, today the judge, who cannot confirm the legality of the origin of his wealth, simply gets fired.
Until recently, "the judicial mantle owners " well perceived their impunity, and bringing them to justice even for an obvious offense was not so simple. Now the criteria for disciplinary liability are quite clear, and if during the Yanukovych era the society seldom heard about a judge being punished, now it's not a unique occasion anymore. Thus, according to the Secretariat of the High Council of Justice, in 2017, 96 judges were brought to disciplinary responsibility, and 172 were dismissed for serious disciplinary violations, among them those involved in scandalous stories, when the judges were guilty of a road accident while driving drunk.
There were some attempts to reform the judicial system in Ukraine, but they were limited to adopting a new law on the judiciary and the status of judges, that is, all the reforms remained at the declarative level, remindsNataliya Kuznetsova, academician of the Academy of Legal Sciences of Ukraine, who is also a member of the Judicial Reform Council. "The current reform is systematic", the reputable scientist is convinced, "and is not limited to changes solely in judicial law, but also covers related areas – the bar, the legal education".
Only two out of 10 laws of the basic judicial reform package were not passed by the Parliament in two years - laws on the bar and the law education. The other 8 are already in force: the changes to the Constitution were introduced first, the laws "On the Judiciary and Status of Judges", laws on the Constitutional and Anticorruption Court, the three basic codes (Economic Procedural, Civil Procedural and Code of Administrative Procedure), etc., were adopted.
After the Revolution of Dignity, the society was eager for rapid change, but the political elites did not show the same zest and unanimity. Sometimes it seemed that parliamentarians deliberately delayed the adoption of separate laws from the judicial reform package. For example, it happened when the Parliament was considering a new version of the law "On the Constitutional Court of Ukraine", and a number of voting rounds were needed to adopt it, as the MP Serhiy Alekseyev remembers, or the situation with amendments to the procedural codes, when amendments to the second reading focused on commas and grammatical inaccuracies. "I do not remember another bill", the parliamentarian says, "which Verkhovna Rada would consider during each month at each plenary meeting".
But in any case the reform was set to a high pace. Some experts even find it too high.
"The drafting of new editions of the procedural codes took place under very pressing deadlines, and therefore, lawyers have concerns about their quality", Nataliya Kuznetsova notes. "However, I will say so: one should start the engine so that the car gets moving, that is, procedural innovations should be implemented, and during their adaptation further adjustments will be made, if necessary".
European experts, who are closely monitoring developments in the area of justice, point to Ukraine's remarkable success on this path.
"The scope of reforms in the justice sector in recent years is impressive, including the re-launch of the judiciary, the reform of the Ministry of Justice, and the improvement of procedural legislation", said Dovydas Vitkauskas, Team Leader of the EU Project "Support to the Justice Sector Reform in Ukraine". Moreover, he notes, that in his native country - Lithuania - a similar reform took 5 years to be implemented.
Today there already are successful cases that can prove the reform efficiency, first of all, it is the new Supreme Court. This institution, which has been functioning for almost a year, does not cause complaints from the public and the professional environment. According to Serhiy Koziakov, the Chairman of the High Qualification Commission of Judges, "there is not even a smell of corruption in the SCU".
At the stage of competitive selection both the professional community of lawyers and even more so the public had doubts as to whether it could be carried out objectively.
"To recognize the work of the HQCJU and other bodies and professionals involved in this unprecedented marathon, we have to say that the society was the first to observe the process of interviewing candidates for the positions of the Supreme Court judges. I will not say that I fully support such an extraordinary level of transparency, but this is a definite proof of the openness and transparency of the process", Nataliya Kuznetsova says.
The society wanted to purify and renovate the system, it wanted to see new faces there. Therefore, for the first time in Ukraine legal scholars and attorney were able to compete for the positions in the SCU. Consequently, they accounted for almost 25% of the new Supreme Court composition.
"These specialists, although they did not have judicial experience, however, were free from those long-accumulated taint, which warranted a radical restructuring of the judicial system. There are already positive comments, in particular, from the "career" judges on the participation of newly elected judges in the decision-making process of cases", Nataliya Kuznetsova says.
It was not by chance that the reform started "top-down" that is, from higher courts; the idea behind this tactic was that changing the methods and style of work, as well as the professional level of the new SCU will set a benchmark for their colleagues in the lower courts throughout the country.
Indeed, today the decisions of the Supreme Court affect the whole system, in particular, it is important to introduce a unified case law.
"If the plaintiff presents the problem, for which the Supreme Court has already made a decision, the lower instance court must make a similar decision, that is, the Supreme Court has put an end to the current chaotic and corrupt-ridden practices when the various district courts adopted different decisions on identical cases", says Valentyna Danyshevska, Chairperson of the Supreme Court. By the way, she is the first woman on this post in all the years of independence.
In this context, one can list dozens of decisions by the SCU on typical cases that help defend the interests of thousands of ordinary Ukrainians. In addition to the decision on the responsibility of road owners mentioned in the beginning, the decisions of the Supreme Court on compulsory childbirth payments to IDPs who moved from the occupied territories were approved, even if parents sought such social assistance from the state a few years after the child was born. It's also worth mentioning of the latest decisions passed by the Supreme Court in September 2018 on the right of a citizen to obtain an old-fashioned "booklet" passport, if for religious or some other reasons this citizen does not want to have a modern "digital" identity card.
Specialists noted that the Supreme Court introduced new approaches, even to the decisions format, "they are now written in a "human" language, which every person can understand, rather than in the previous incomprehensible bureaucratic jargon", Serhiy Kozyakov says.
"The Supreme Court is looking for any opportunity to explain its decisions to its colleagues of the first and appellate instances", Valentyna Danyshevska commented. "It is important that judgments based on the legal positions of the Supreme Court be convincing and perceived by the public. Therefore, judges have to formulate the decisions in a clear language and to explain them as much as possible".
The High Anti-Corruption Court has to become the completely new institution, the appearance of which legitimized the reform, and it has already attracted the attention of the entire country. The HQCJU scheduled anonymous testing of applicants for November 12, and two days later the candidates are expected to fulfill practical assignment. "The Anti-Corruption Court formation process well illustrated the general tendency to frustration and pervasive distrust". At first, many parties claimed almost unanimously that the Parliament would never approve the laws necessary for the creation of the Anti-Corruption Court, and then that they would not meet the requirements of international partners. When we, the MPs, did approved them, there were assumptions that nobody would want to work in this court and the competition would fail due to the lack of candidates. Meanwhile, the reality was different: the competition is significant, perhaps 10 people per each vacancy, this is even more than during the contest to the Supreme Court", Serhiy Alekseyev argues.
Human factor. Purification and renovation
However, it’s not the Supreme, but the district court, to which the citizen is likely to go first, and the changes are only budding on this level.
Recall that in 2014 there were more than 8 thousand judges in Ukraine. Immediately after the Revolution of Dignity, the problem "How to purge the system from corrupt and dishonest judges?" found a simple "folk" remedy - "to sweep out all old ones and hire or teach new ones". It would seem that such "popular methods" to cure the system ailments had quickly become out of fashion, but recently a popular singer Svyatoslav Vakarchuk refreshed this idea in the information space. Perhaps he was inspired by the experience of Kazakhstan, a country that has recently "implanted" foreign specialists: only English law is used in a separate area and the British judges decide the disputes.
"The attitude of our colleagues from Kazakhstan to this experiment is extremely negative", Nataliya Kuznetsova commented. "In my opinion, it is doubtful that this experiment will contribute strengthening foreign investments protection, but its impact on the development of the national legal system, its credibility, is unlikely to be positive".
The Ukrainian judicial reform did not choose the path trodden by Kazakhstan. Thanks to the new transparent system of qualification assessment, in 2016 more than 1.5 thousand of "old" judges, that is, almost a quarter of the judiciary corps, voluntarily resigned. We can confidently assume that most of them did it to hide the acts of their skillful sticky fingers. That is, this process results in the system self-purification to some extent. In addition, the exams conducted by the HQCJU have ousted hundreds of judges who failed to prove their professional qualification.
A rigid multi-level system of qualification assessment, which can be compared with the re-certification for representatives of other professions and which has never actually been conducted in the country before, played a sanitizing role, shaking the dust from the long-unused judicial mantles.
"Examinations caused great emotional stir among our staff, but later we laughed that this was an opportunity to refresh so much knowledge and to study the case law of the European Court of Human Rights", admitted Yuliya Bezdolya, a young judge of the Odesa oblast Commercial Court.
The law of Ukraine, which introduced the application of the European Convention and the ECHR case law into the consideration of cases, is dated back in 1997, but for a long time these provisions were not widely used in judicial practice, and only in recent years, according to Yuliya Bezdolya, they began to be actively used as the source of law.
Currently, the HQCJU is holding eight contests at once (in particular, the Competition for the High Court on Intellectual Property is underway; the selection of candidates for the Anti-Corruption Court has begun), therefore, the first instance court judges' re-assessment procedure took a lot of time. That is quite understandable, because all 3,200 judges of the country without exception shall pass the qualification exam. According to Serhiy Kozyakov, the all-Ukrainian "re-assessment" is expected to be completed next year.
Due to the fact that many "old" judges were disqualified, and even more resigned in order to avoid declaring their shady assets, and a significant number failed to pass the qualification exam, the system is experiencing an acute staff shortage. Therefore, after the reform, 5,600 working judges are left in Ukraine, and today there are 2,400 more vacancies, that is, the courts are understaffed for about 40%.
The judges who passed the qualification exams, especially in the regions, take a huge workload, working literally "for themselves and for the vacant positions in their court". For example, in Economic Court of Odesa oblast only 21 out of 35 full-time positions have the authority to administer justice. And the situation in the district courts in the region is even more severe, says Ms. Bezdolya.
And here the Ukrainians need to understand that if we aspire to purify the judiciary, but do not want experiments similar to that in Kazakhstan, which resembles quite an ill-considered story of the Georgian reformers, then you should have patience and wait. It will take a couple of years to wait. This was calculated on the basis of the term for training a judge (in Ukraine, it is 18 months) and the number of persons the state can prepare for such a time (about 600 legal specialists).
Society is slowly experiencing changes in the system, as USAID New Justice experts say, in the past two years the citizens' confidence in the courts has increased from 5% to 12%. According to the Special Envoy of the Secretary General of the Council of Europe, Regis Brillat, who during his visit to Kyiv in the summer of 2018 asked to comment on these sociological assessments, "this is a completely natural process, because there is no high-speed elevator to radical changes in the legal system, the process of reform is long and tedious, and the result is not immediately visible". Moreover, a European official said that this is a special and complex reform. According to the results of interviews conducted in 2018 by the abovementioned USAID Program, only 5% of citizens can objectively comment on the results of changes in the judiciary, as they have been involved in court proceedings over the past 24 months.
"Given that during the years of independence, there were no serious changes in the justice system, and we used the inherited Soviet model, hoping for quick and dramatic changes seems a bit naive", Serhiy Alekseyev summarizes.
Tasks for tomorrow
The quality level of changes should not decrease, warns European expert Dovydas Vitkauskas. He drew attention to those aspects of the reform, which, overshadowed by considerable success, remained incomplete.
"A big plus is a fundamentally changed approach to the selection of judges, the transparency of which can be envied even by some of the old European democracies", says Mr. Vitkauskas. "Meanwhile, the big minus is that the reform of enforcement of court decisions has been hampered, the state structures prevent private enforcement officers from efficient work, which could have raise the level of integrity in Ukrainian business and society".
It is known that very often the decisions made by the courts remain unfulfilled, and this essentially erodes the idea of justice and sometimes undermines the very work of judges.
One of the urgent key issues, according to the European expert, is to help the High Council of Justice to take a leadership in a rather complex and cumbersome system of judicial administration, set goals, and verify, through the system of assessments, how these goals are achieved both at the systemic and on the individual level.
"Currently, discussions in Ukraine often stop at who can or may become a judge, and how", Dovydas Vitkauskas said. "However, the important issue of how to improve the effectiveness and responsibility of judges after appointment is not the focus of these discussions".
"It's time for gradual introduction and expansion of the use of the institute of the jury, in parallel, it is necessary to work on expanding the methods of alternative dispute resolution, in order to relieve the courts from the burden of minor cases", MP Alekseev reminded. "Each of these areas of reform is in its own way important".
The Chairman of the HQCJ Serhiy Koziakov reminds, in particular, of the urgent need for legislative regulation of the professional activities of lawyers. "It is imperative that all components of the legal system, not just the courts, achieve high quality of work. We can appraise the work of courts in Norway or, say, the United Kingdom, but at the same time we must admit that not only judges, but prosecutors and attorneys are highly performing there as well", Serhiy Koziakov says.
The postponement of court hearings because one of the key participants in the proceedings failed to appear, used to be a shameful routine in Ukraine. Mr. Koziakov cites statistics for the first half of 2018: 2,112 times the court session was postponed due to the absence of prosecutors, 8,290 times - due to the absence of defense lawyers. The judiciary has changed a lot, the time has changed and it's time for the bar to change as well, asserts Mr. Koziakov, who until recently was known as a famous lawyer.
Changes in the judiciary are significant, but they have not yet become irreversible, and, according to independent experts, political turbulence, which always goes shoulder by shoulder with the electoral process, may hinder the advancement of reform.
"Elections can have a great impact on the prospects of judicial reform as such", said Maksym Kostetskyi, an expert on the RPR Anti-Corruption Team, project manager and legal adviser of Transparency International. "Presently, some Presidential candidates claim that if elected, they will restart judicial reform or somehow modify it. Therefore, a lot of things will depend on who will become the President of Ukraine in the spring of 2019, and whether the President will gain the support of the parliamentary majority".