The EU-funded Project “Pravo-Justice” promotes greater rule of law in Ukraine, in line with European standards and comparative practices
Joint Vision of Justice as a Chain
Different Branches of Power, Public and Private Sector, Fixing Goals Together – Judicial Reform Council
The justice sector is a complex system which comprises intertwined institutions and areas cutting across various branches of power – namely the judiciary, executive and legislature. At the same time, the sector includes various independent (prosecution) or semi-independent bodies, private corporations and professional associations (practising lawyers, private enforcement officers, notaries). Furthermore, the justice sector is neither ‘owned’ nor coordinated by the Government or the Ministry of Justice (MOJ) in its daily performance - and indeed it is because of the competition of the independent or autonomous limbs of the sector that it is able to provide ‘checks and balances’ against executive abuse.
In view of these specifics, coordination of the justice sector reform is of paramount significance in order to make sure that the policy development process is sufficiently inclusive and productive. With this in mind, the Predecessor Project to “Pravo-Justice“ suggested establishing the Judicial Reform Council (JRC), which would work as a justice sector reform ‘owner’, and the ultimate filter for all reform-related initiatives. JRC was established in 2014 under the auspices of the Administration of President, uniting many actors at the highest policy-making level, donors and representative of the civil society (CSOs). Pravo-Justice facilitates the JRC operations by providing strategic guidance and operational support. The Justice Sector Reform Strategy and Action Plan 2015-2020 (JSRSAP), approved by President of Ukraine and the Cabinet of Ministers, was a result of the work by the Judicial Reform Council, the Predecessor Project to Pravo-Justice and other development partners.
Looking Forward at Each Institution - Strategic Planning Units
The sector-wide reform process can only be properly coordinated by reason of the core stakeholders having sufficient “back office“ capacities to plan, monitor and report on the JSRSAP implementation. This is particularly so in a sector constructed of many different institutions with significant degrees of independence or autonomy in the country’s constitutional set-up. “Pravo-Justice“ is continuing the focus on the creation and support to existing Strategic Planning Units (SPUs) within key justice institutions. HCJ and MOJ are among the first in the sector to have such dedicated capacities. In time, operational SPUs at each sector institution will become a mainstay in the reform monitoring and review process, proving most of the analytical and operational support to JRC.
The justice sector is a complex system which comprises intertwined institutions and areas cutting across various branches of power – namely the judiciary, executive and legislature.
Activities and Results - Justice Sector Reform Strategy and Action Plan, Annual Implementation Pans
The general trend promoted by JSRSAP is towards increasing the independence of the judiciary as a separate branch of power, but with more accountability and service orientation in the whole of the justice sector. A number of key developments since then already include:
- complete reset of the judiciary through new selection and evaluation process of judges;
- streamlined judiciary governance system with High Council of Justice (HCJ) at the pinnacle;
- better coordination of justice sector reforms through the Judicial Reform Council (JRC) and the restructured Ministry of Justice (MOJ);
- improved access to and quality of legal aid;
- more effective enforcement of court decisions through gradual privatisation of enforcement services;
- better balance between crime prevention and rehabilitation through fully-fledged probation services;
- greater inputs by the justice sector in the prevention of and combatting corruption through the setting up of specialised investigative agencies (NABU), more transparency of assets (e-declarations system) etc.
- e-justice, online and fully electronic services, more interoperable and integrated registers and other information systems.
Because of its sector-wide nature, JSRSAP deals with complex blocks of relationships in each of its 12 Chapters, rather than focusing on a specific institution. This justifies the need for greater institutional coordination under each of the JSRSAP Chapters. Moreover, many of the JSRSAP interventions will be implemented by a number of ‘responsible bodies’. This problem-focused (and not merely institution-focused) approach allows expecting a more comprehensive and systemic action, while also promoting the understanding of ‘justice-sector’ as a chain of complex relationships between various bodies in order to produce better quality of services to the society.
At the same time, in order to keep the JSRSAP oriented towards results - and particularly outcomes - this document has not been excessively itemised within rigid time-frames for each particular year of its implementation cycle. Thus Pravo-Justice is helping institutions implementing JSRSAP to develop a list of steps necessary for the achievement of results in Annual Implementation Plans (AIPs), which have been produced annually for each JSRSAP Chapter since 2016.
Evidence-based Policy-making - Monitoring and Evaluation
Successful reforms require contemporary policy-making and implementation methods. Pravo-Justice is helping introduce effective monitoring and evaluation (M&E) of the justice sector reform processes and results. Besides overall expert advice, it has furnished the beneficiaries specifically tailored dynamic instruments, including monitoring tool and donor (external assistance) online coordination platform, which provide comprehensive, computable data and knowledge about the reform progress, while allowing to adjust and calibrate inputs of specific actors and other parameters. “Pravo-Justice“ is also going to lead the JSRSAP evaluation with a view to defining scope and extent for the follow reform policy.
Smaller Budgets, Better performance
The justice sector institutions and the sector reforms are still financed according to the traditional cost-based line-budget methodology where focus is on the cost of inputs (salaries, cost of goods) rather than results and services provided by the institutions to the people. “Pravo-Justice“ is working with the Ukrainian institutions on applying cost-benefit analysis to the budget allocation decision, providing expenditures by performance, and assessing results in relation to objectives. This method is based on data science, including statistical approaches. The crucial reason for suggesting this method is that it is transparent and objective, allowing no “bottom-up bias” by the institutions and their staff. Such a method would form a solid base for allocation of resources on clear objectives, and not on time-consuming subjective negotiations of any form. Following the path of data science-based scientific approach to performance management and performance based budgeting will make the Ukrainian judiciary fit for the future challenges alongside the trends in advanced European jurisdictions.
Less Rules, More Clear Rules - Improving Legislative Process
Legislative processes in Ukraine, including those in relation to the justice sector, are subject to lack of clear rules and processes, resulting in a big number of draft laws of poor quality brought by Members of Parliament, gold-plating and excessive length of legislation, default use of legislative instruments at the expense of more flexible forms of regulation (rules, practice guides), and the very frequent changes in the r regulator framework. “Pravo-Justice“ is supporting changes for more regulated legislative process and more evidence-based regulation of the justice sector through the use of M&E, gap analysis, impact assessment and other techniques. In particular, a closer link between legislation and practice is being promoted through the monitoring mechanism of new civil and commercial procedural codes with the involvement of MOJ, Supreme Court, other judges, advocates, scholars, CSOs. In addition, MOJ is strengthening its role in pro-active, systematic and obligatory monitoring of implementation of newly adopted legal acts in the new areas of regulation in the MOJ domain.
October 31, 2018
Changes in the judiciary are significant, but they have not yet become irreversible
October 4, 2018
At the request of the Ministry of Justice, the EU Project “Pravo-Justice” held an expert mission with the purpose to give some guidance on how to set up an effective mechanism for verifying the reliability of the obtained information on the beneficiary owners. Thus, experts of this mission of the Project “Pravo-Justice”, Mariano Garcia Fresno (Spain) and Dan Johnson (The Isle Of Men, the Sovereignty of the British Crown), in the interview to Yurydychna Gazeta spoke about their mission in Ukraine and the key principles which their recommendations are founded on.
Fair Resolution of Disputes in Court
Competence and accountability through transparent and objective selection and evaluation of judges
Ukraine has launched a unique process of judiciary reset by way of the evaluation of all judges, selection of new judges and setting up of new courts. These processes are based on clearly defined objective elements, such as legal professional knowledge and skills testing, practical exercises (case studies), psychological testing, transparent and publicly accessible interviews and participation of the civil society.
While more than 3,000 judges have been removed or left the judiciary since 2014, some 5,000 working judges in Ukraine still remain in office, and need to undergo an in-depth evaluation. So far 10% of the evaluated judges have not been confirmed as fit to continue to exercise their duties. The time also came for new blood in the judiciary. Last year the new Supreme Court was launched following the selection of experienced and young legal professionals with different backgrounds, who underwent the tests to check the above competences, including integrity. Out of some 650 candidates, only 382 were allowed to pass to Stage 2 of the process after the testing of their legal skills and competences. 116 judges were selected by the end of the process.
The judiciary reset is going to continue with the selection of judges of the new Intellectual Property Court and Anti-Corruption Court, second tranche of the Supreme Court competition, choice of new first instance judges, and further evaluation of some 4,000 judges. Pravo-Justice is supporting these processes by helping develop legal professional knowledge tests and case studies, conduct social and personal skills and competences (psychological) testing, promote participation of the civil society in the judiciary selection and evaluation, and build the capacities of the High Qualification Commission (HQC) to strike a balance between objective testing and documentary evidence on the one hand, and the inevitable exercise of discretion in choosing the right people for the job.
The judiciary reset is going to continue with the selection of judges of the new Intellectual Property Court and Anti-Corruption Court, second tranche of the Supreme Court competition, choice of new first instance judges, and further evaluation of some 4,000 judges.
Greater leadership within judiciary - High Council of Justice
Creating a truly independent institution with an independent mindset of individuals working for it takes a long time, as various cultural obstacles may prevent that. At the same time, judiciary ‘independence’ is not an end in itself - it is merely an avenue to make the courts and judges more accountable to the society by way of delivering swift and fair administration of justice. This is understood and achieved in Europe through strong policy guidance from the top of the judiciary governance bodies, but without interference in the operational matters of the judiciary in adjudicating individual cases.
One trend becomes more apparent – namely, effective judiciary governance systems are usually put in place with one body at the top. Up to now in Ukraine, many different institutions were responsible for different functions - such as admission, evaluation, disciplinary reprimand of judges, control of budget and other management decisions. Positive developments are now taking place with the entry into force of new legislation on the High Council of Justice (HCJ), which should be placed at the top of the judiciary governance system, to make it more streamlined and efficient. As the matters stand, there is no single body to fix goals for the Ukrainian judiciary. There is no point in selecting and evaluating individual judges, if no one is evaluating the system.
“Pravo-Justice“ is helping promote this top-down policy thinking in Ukraine through greater leadership of HCJ not just as a defender of the independent judiciary, but a shepherd for more accountable and service-oriented judiciary. Thus the Project supports various initiatives to improve the role of the High Council of Justice in important systemic matters of judiciary performance, budgets, communication, as well as individual matters of discipline, appointment and dismissal of judges.
Performance management and new courts map
Up to very recently, there was no single body to fix policy goals for the judiciary system in Ukraine. Some very basic questions need to be answered, such as - what are the constant or changing policy tasks of the courts and judges? Is it to promote the rule of law, protect human rights, improve investor confidence in the country, improve the gender balance? Once those basic questions are answered, they have to be broken down into smaller performance standards and targets for each court or judge. There is no point in evaluating individual judges, if no one is evaluating the system.
“Pravo-Justice“ is helping answer these questions by using technological achievements of data science, building the judiciary performance management system covering time, cost efficiency and productivity which objectively compares all Ukrainian courts and judges to each other, identifying lack of speed or quality in decision making, and allowing for more objective basis for all budget and career decisions.
Greater clarity and foreseeability of law through uniformity of practice
The importance and indispensable character of a coherent case-law for the principle of the rule of law is clearly echoed in the jurisprudence of the European Court of Human Rights (ECHR). Ukraine is already moving along the lines of comprehending the principle of legal certainty as an essential pre-requisite of the rule of law. The legal community of the country is almost unanimous in the view that this can only be achieved through greater uniformity of practice of courts.
“Pravo-Justice“ is assisting the Supreme Court (SC) in building its leadership at the pinnacle of the domestic legal system. One of the issues is striking the right balance between access to a court by parties on the one hand, and the need for higher courts, including SC, to act primarily in the interests of the legal system rather than the parties. The highest judicial bodies cannot be placed in a position to carry out their function of overseeing the development of consistent jurisprudence, if overburdened by routine issues. It is also essential to standardise the structure and reasoning of court decisions. Finding an appropriate role for the newly introduced individual constitutional complaint mechanism is also challenging, in order to make sure that the Constitutional Court oversees and complements the jurisprudence of courts of ordinary jurisdiction, without replacing it.
“Pravo-Justice“ is making its own contribution by focusing on building more efficient procedural regulation on accessibility of “cassation” and other appeals, more user-friendly case-law search tools, feedback linkages between research and analysis and the courts case-law, and better training system with more capable National School of Judges (NSJ) at the forefront, with the cumulative effect of bridging the existing gap between legislation and practice.
Better service to court clients
Greater user and service orientation is a key factor in the modern approach to the judiciary governance. The Model Courts approach in the Pravo-Justice design is helping pilot a number of initiatives in selected (up to 5 courts) across Ukraine, with a view to improving client service through front-office facilities, better handling of vulnerable groups of court users, institutionalisation of user satisfaction surveys, piloting of other modern management initiatives. Following on the example of advanced European jurisdictions, client service standards would be implemented to serve as a background for courts focused on greater quality and efficiency, including the rules on welcoming parties to the proceedings, internal business dress-codes, communication of judges and staff with colleagues and clients, management of conflict situations, greater security of courts and parties etc.
October 5, 2018
On July 31, 2018, the State Judicial Administration of Ukraine, after agreeing with the High Council of Justice, signed orders to determine the number of judges in the Supreme Court, the Supreme Anti-Corruption Court, the Supreme Court on Intellectual Property, and newly formed appellate courts in appellate districts.
October 3, 2018
All the remained cases, and this is approximately 28 thousand, are equally distributed among the judges. However, new appeals arrive daily.
Property Right Protection and Ease of Business
More enforceable obligations and proper debt collection – new private enforcement service
According to the World Bank estimates, more than UAH 400 billion (some EUR 13 billion) are locked up in large unenforced civil cases. As recently as 2016, only some 5% of civil court decisions in Ukraine were properly and timely enforced in favour of claimants, while the relevant figure was at least 30% in European countries with private enforcement services. In 2016 Ukraine decided to shift from the state enforcement service to create a mixed system including Private Enforcement Officers (PEOs), who benefit from entrepreneurial spirit of an individual to improve effectiveness and in enforcement of court decisions.
The Predecessor Project to "Pravo-Justice" was a leading donor in helping launch operations of some 100 active PEOs, working in parallel with some 4,500 state enforcement officers (SEOs). PEOs have already fully enforced almost 3 times more court judgments per case closed, to compare with SEOs. "Pravo-Justice" is building on these achievements to maintain the high level of PEO efficiency through building PEO professional self-governance system, raising awareness of the reform and its benefits, smoothening and simplifying procedures, streamlining the MOJ oversight role of PEOs.
Cleaner property titles – improved notary service
The protection of property rights is an important pre-condition for investment, economic and social stability. A variety of transactions related to various proprietary interests and titles are conducted through notaries, who bear the responsibility clean transactions and foreseeable rights. MOJ has recently undertaken to fully privatise the notary services, following a gradual privatisation process that was launched almost 20 years ago. Pravo-Justice is supporting the Ukrainian counterparts in these endeavours, helping develop the professional standards, admission and evaluation procedures, ethical and disciplinary oversight mechanisms, development of fully electronic services, encouraging cooperation of 2 key players – the Ministry of Justice and the Notary Chamber of Ukraine.
Protection of property title is important condition for investment, economic and social stability.
Ease of economic activity while protecting creditors and business partners - new bankruptcy rules
The Financial Stability Board considers sound insolvency and creditor/debtor regimes fundamental to robust and diverse modes of financial intermediation, responsible access to finance, and financial stability. Protection of creditors’ rights in bankruptcy proceeding remains a challenging issue in Ukraine. The bankruptcy procedures existing for the last 17 years are very lengthy, unclear and ineffective. According to various expert assessments, on average creditors in insolvent companies recover only nine cents for every euro. Pravo-Justice is assisting Ukraine in development and implementation of the new Bankruptcy Code which was intended to simplifiy insolvency procedures, increase protection of creditors’ rights while introducing individual bankruptcy.
Execution of ECHR judgments
Ukraine has had a high count of applications before the European Court of Human Rights (ECHR). One of the main reasons for the problem is non-enforcement of court judgments, making up more than 50% of total violations found by ECHR against Ukraine. The Project contributes to resolving this problem through the reform of the enforcement system, while also helping the Government Agent at MOJ to be more effective in implementing general measures in the aftermath of ECHR judgments, improving the regulatory framework and practices in Ukraine for the benefit of all individuals in a similar position to that of the successful ECHR applicant.
October 26, 2018
Enforcement reform results and prospects were discussed at the conference “Current Situation with Execution of Judgments. Results of the Enforcement System” that took place in Odesa on October 25.
More Secure Society at a Lower Cost
Better crime prevention and resocialisation of offenders – probation and alternative sanctions
The purpose of probation service is to reduce crime and enhance public safety through the development and implementation of a range of evidence-based interventions effective at reducing re-conviction by offenders.
Probation service helps to reduce crime and enhance public safety
Pravo-Justice is continuing on the path established by the Predecessor Project in supporting the Probation Service of Ukraine through the creation and use of analytical tools such as Risk and Needs Assessment, development of new training programmes for the Probation staff, introduction of electronic services.
Better management of prisons
New approaches to management of prisons should contribute to decreasing the prison population and reducing reoffending rate. "Pravo-Justice" is supporting these initiatives, in particular, through preparation of inmates for their successful return to the society after release.
More Accessible and Service-oriented Justice
Safer, more reliable and cheaper public data – electronic and interoperable Registers
Ukraine has more than one hundred registers, administrated by different authorities, which often are not integrated, and there are no possibilities of moving from one register to another. Current legal framework does not prevent from the duplication of information in different registers. However, comprehensive, complete and reliable information in the registers is securing ownership rights, making administration services more accessible, contributing to ease of doing business.
While e-justice was advanced in Ukraine with the notable introduction of systems for courts case management, tracking performance of courts and judges, accounting and budgeting, court websites, and equipment of some courts with the audio / video recording hardware and software. Similar systems were developed at the Ministry of Justice (MOJ), PPO and other justice sector stakeholders.
Comprehensive, complete and reliable information in the registers is securing ownership rights, making administration services more accessible, contributing to ease of doing business.
At the same time, given that all information systems (IS) infrastructure by definition has a limited lifecycle, permanent upgrades have not been ensured. Moreover, standardisation and sustainability requirements in conducting various upgrades have not been taken into account. Proper functioning of IS requires significant regulatory changes, better quality of rules and procedures, allocation of resources in training, additional deployment of personnel. A lack of continuous maintenance and upgrading of the systems has resulted in a rather significant level of dissatisfaction by users of these systems.
"Pravo-Justice" is going to help evolve from the current status quo first, by reviewing a top-down vision of the e-justice reform, focusing on the development of consolidated Management Information Systems (MIS), which will support the judiciary and other sector bodies in strategic planning, budget and finance, and performance management, while ensuring interoperability among the variety of justice sector actors via web-based technologies, fully electronic registers and other services.