The expediency of the new judicial reform in Ukraine, the reduction of political influence on the judicial system and the reboot of the court administration bodies were described by ESQUIRES managing partner, attorney Oleksander Shkelebey for the «Ukrainian lawyer» journal in a commentary on the topic “Judicial reform”.
Commentary is available in Ukrainian.
With the purpose to answer these questions, it is advisable for everyone firstly to decide whether a judicial reform has taken place, or has Ukraine conducted its proceedings in compliance with European standards and is it possible to protect rights, freedoms and legitimate interests by timely, effective and fair resolution of legal disputes based on the rule of law?
Let’s recall that the strategy for reforming the judicial system, legal proceedings and related legal institutions was approved by the President of Ukraine for five years (2015-2020).
“Judicial reform is ongoing,” stated on the official website of the judicial reform http://sudovareforma.org/. In the preface to the Report of the Council on Judicial Reform for 2014-2019 (report), then President of Ukraine Petro Poroshenko noted that the main thing is to make the judiciary of Ukraine strong, independent and responsible.
“The judiciary has become independent and free from any political influence – the courts are formed and liquidated exclusively by law, and the question of the appointment and dismissal of judges from their posts no longer fall within the competence of political bodies. From now on, these powers are exercised by the new professional body of judicial administration – the High Council of Justice,” the report says, which illuminates the view of the Judicial reform Council on the results of changes in the judicial system.
According to the authors of the report, it remains to pass the laws on advocacy and legal education to complete the legislative component of judicial reform. The next steps had to be the selection and subsequent updating of the judiciary, electronic court and the training of a new generation of lawyers.
The only permanent thing is change.
Of course, the novels of the procedural codes have already been tested. However, judges and lawyers see the nesessity to amend certain provisions. In particular, the institute for consideration of the challenge by another judge became a practical mechanism for delaying of the case consideration. An urgent issue for the judges of the cassation instance is the need to refer the case to the Grand Chamber of the Supreme Court in all cases when the participant of the case is appealing the court decision on the basis of violation of the rules of subject or personal jurisdiction.
The above examples allow you to plan positive changes based on an analysis of the existing undesirable consequences. By analogy, I propose to pay attention on some negative assessments of the reform of the judicial system, in particular, on the independence of judges and ways for improvement.
Decrease of political influence on judicial system?
The reloading of the first and appellate instances was announced, it was supposed to assess each acting judge according to the criteria of competence, virtue and ethics, as well as the arrival of new people through transparent competitions for judges.
But has the functioning of the updated High Council of Justice and the High Qualification Commission of Judges of Ukraine as judicial management bodies ensured the independence of judges? The axiom was observed during the reform: can independent judicial bodies form an independent court?
An outside observer might have the impression that conducting a quick qualification assessment of judges within the deadlines established by the Law of Ukraine “On ensuring the right to a fair trial” was not a priority, and the qualification assessment procedure itself did not actually provide the clear deadlines, which created legal uncertainty.
Recently, there has been intensification in this direction, which may additionally confirm the lack of political will previously and the possible one’s benefit from the long stay of many judges «up in the air». So there were questions both to cases of too quick and rather long qualifications, which are oftently regarded as “signs” the judiciary.
Or is the government interested in an independent court and maybe the judicial system is completely independent of the government that formed it? I believe that if there is even a partial dependence between the Supreme Court, the Verkhovna Rada and the VKKS, it is impossible to make the judiciary of Ukraine strong, independent and responsible. Therefore, certain fears are caused by the fact that during the period of the activity of one power the VKKS, the Verkhovna Rada and the Supreme Court have been almost completely formed.
Also, the appointments by the previous President of Ukraine made a week before the transfer of power to the new members of the Supreme Council of Justice hardly confirms the thesis about the intention to build an independent judiciary.
The balance between society and the government, the independence of the judiciary should be facilitated by professionals who are free from any political influence and who will participate in the selection and assessment of judges. According to estimates, the selection of the Supreme Anti-Corruption Court with the participation of the Public Council of International Experts became the best. Taking into account the positive experience and strengthening of the public powers and experts will gradually release the judicial system of political influence.
On the timing and order of consideration.
The final court decision in three years does not contribute to the credibility of the judicial system, and if the case is considered by three instances within six months in cases involving state bodies the preservation of political influence is confirmed even after the reform.
How is the order of the various cases for consideration determined? Why can cases that have come to court later be considered much earlier? It’s a mystery not only for lawyers. The order of cases appointment for consideration is determined by the reporting judge at his discretion. Remains only to hope that common criteria will be determined for the judges be guided in such cases as well.
Commentary is available in pdf format: Ukrainian lawyer – to be in full reform.