To the Proposal by the Reanimation Package of Reforms
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EXPLANATORY COMMENTARY to the Proposal by the Reanimation Package of Reforms concerning reforming the judiciary system and the ranks of judges through amending the Constitution of Ukraine
І. Content of the Proposal...... 1
ІІ. The Venice Commission’s Positions and Their Implementation in the Draft Law...... 2
ІІІ. Socio-Political Context...... 4
А. Key Data from Sociological Surveys...... 4
B. Ukraine in Global Rankings...... 6
C. De-communization...... 7
D. Judges’ Values and Esprit de Corps...... 8
IV. Resistance by the Judiciary...... 10
V. Relevant International Experience...... 12
VI. Risk Analysis...... 14
Executive Summary...... 14
І. Content of the Proposal
1. The proposal put forward by the Reanimation Package of Reforms (hereinafter RPR) involves creating a new three-tier judicial system with an open and transparent competition for appointment of judges to each position. This proposal is aimed at ensuring the right to a fair trial, as guaranteed by the European Convention on Human Rights.
The new judicial system envisions rejecting the current system with four cassation courts (one Supreme Court and three higher courts). Initially, the Supreme Court will be established as a unified cassation jurisdiction for the general courts. We also envision a separate Supreme Administrative Court as a cassation court for the administrative courts. These courts would begin operating as soon as possible (within a year after the adoption of the relevant amendments to the Constitution). With this, the existing top-tier courts will cease operating.
As a result of decentralization, the consolidation of local communities, and the considerable reduction in the number of court cases, the number of lowest-tier courts (of which there are approximately 700 today) will be reduced. A similar process has already commenced for prosecutor’s offices, whereby 170 circuit prosecutor’s offices will soon take over the work of nearly 700 local prosecutor’s office.
2. The new courts will be created in phases, starting from the top tier. This process could be completed in three years. Both sitting judges and lawyers outside of the judicial system would be eligible to participate in competition for positions on new courts. Once the new judges begin working, the tenures of other judges appointed under the old system will be terminated on the grounds of complete reorganization of the judicial system.
3. A temporary commission will be established to carry out the selection of judges for new judicial positions. Parliament would appoint members of this commission from among the most respected individuals from the ranks of retired judges, human rights defenders, international experts, and foreign specialists with impeccable reputations.
4. The RPR’s proposal to establish a three-tier judicial system with an open and transparent competition for each position is designed as transitional provisions to the constitutional amendments; as such, it contains only the most essential elements. In the event that this proposal is supported, its implementation will require that the detailed procedures are specified by a law, taking into account European standards.
ІІ. The Venice Commission’s Positions and Their Implementation in the Draft Law
5. The Venice Commission has repeatedly called on the Ukrainian authorities to simplify the court system and reject its four-tier structure1.
Unfortunately, this demand has been ignored by the Constitutional Commission. Its draft provides for the Supreme Court as the highest body in the court system, as well as for high courts that are subordinate to it – as superior to specialized courts (art. 125, sec. 3-4). At the same time, the transitional provisions (cl. 8, 19) provide for the Supreme Court and for separate cassation, appellate, and first instance courts. These provisions will make it impossible to reduce the number of tiers of courts in the future, as the Supreme Court will continue to remain a separate instance over the cassation, appellate, and first instance courts.
The RPR submitted its recommendations to clearly provide for, at most, a three-tier system of courts. Unfortunately, these recommendations have not been made available for review to the Venice Commission, as the Presidential Administration only submitted to the Venice Commission the portion of recommendation that relates to cleansing the judicial ranks.
6. At the beginning of 2015, Ukrainian government representatives informed the Venice Commission of “the major problems both with corruption and incompetence among the judiciary which are a result of political influence on judges’ appointments in the previous period”, as well as “almost complete lack of public confidence in either honesty or the competence of the judiciary”2.
The Venice Commission was understanding of this problem: “If the situation is as described by the representatives of the authorities, it may be both necessary and justified to take extraordinary measures to remedy those shortcomings”. At the same time, the Venice Commission expressed an opinion that “[s]uch extraordinary measures should indeed be aimed at identifying the individual judges who are not fit to occupy a judicial position. In this respect, dismissal of every member of
1 See Section 21 of the Joint Opinion No. 550/2009 on the Draft Law on the Judicial System and the Status of Judges of Ukraine by the Venice Commission and the Directorate of Cooperation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe; Section 15 of the Joint Opinion No. 588/2010 on the Law on the Judicial System and the Status of Judges of Ukraine by the Venice Commission and the Directorate of Cooperation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe; Section 28 of the Joint Opinion No. 801/2015 of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and Rule of Law (DGI) on the Law on the Judicial System and the Status of Judges and Amendments to the Law on the High Council of Justice of Ukraine; Section 19 of the Preliminary Opinion No. 803/2015 of the Venice Commission on the Proposed Constitutional Amendments Regarding the Judiciary of Ukraine; et al. 2 Section 72 of the Joint Opinion No. 801/2015 of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and Rule of Law (DGI) on the Law on the Judicial System and the Status of Judges and Amendments to the Law on the High Council of Justice of Ukraine (hereinafter – Opinion No. 801/2015). the judiciary appointed during a particular period would not be an appropriate solution to the problems indicated by the authorities” 3.
The Constitutional Commission chose to terminate the tenure of those judges appointed for a five- year term upon the expiration of this initial period (the vast majority of those judges were appointed during Yanukovych’s presidency). The remaining judges are to be subjected to an assessment, the negative results of which would be grounds for removal from office.
The RPR does not differentiate among judges based on whether they were appointed during the era of Yanukovych or other presidents, and instead proposes another approach, independent from the time of judges’ appointment to office. All judges would be given an opportunity to participate in a competition for positions on new courts. Those judges who wish to leave the system or do not pass the competition will have their tenure terminated on the grounds of restructuring of the judiciary, without any negative formulations. Those with a sufficient length of tenure will be deemed retired judges and will receive lifetime monetary allowance in accordance with rules currently in effect.
The RPR believes that Ukraine risks losing a unique chance to improve the situation if the assessment is introduced only with respect to sitting judges. The judges have become quite skilled at avoiding the responsibility, including by resorting to European standards. The majority of them were able to avoid property lustration, by either recording their wealth to third parties or successfully appealing any negative findings of fiscal authorities in courts. Even in the event of a patently arbitrary judgment (see, e.g., European Court of Human Rights judgments in Bochan v. Ukraine (no. 2), Yaremenko v. Ukraine (no. 2)), the judges have successfully resorted to arguing that they had used their right to interpret the facts and the law and that the disciplinary or qualification body had no right to evaluate this. This is the key argument relied on by the judges who issued arbitrary decisions against the Revolution of Dignity participants. Certain judges who had criminal proceedings launched against them are refusing to testify against representatives of the Yanukovych regime who ordered such decisions, because such testimony could implicate court presidents who retained their positions or the judges’ colleagues. The majority of these arbitrary decisions have not been reversed, because participants in peaceful assemblies and other individuals erroneously treated as such were released from detention by virtue of a law that the Parliament was forced to adopt under emergency circumstances.
The standard of proof, be it as part of the disciplinary proceedings or the assessment process, is very high. That is why most of the judges are easily avoiding responsibility despite having a tainted reputation, whereas the courts competent to review the judges’ appeals against decisions of qualification or disciplinary bodies are only condoning this.
Meanwhile, with a competition for judicial positions as recommended by the RPR, all candidates would, on their own and within a fair legal procedure, have to provide evidence and dispel any doubts as to their professional reputation, if there is any negative information. This is because only individuals with an impeccable professional reputation will be qualified for appointment to a judicial office.
7. The Venice Commission has noted that “Article 126 of the Constitution which provides that judges hold office for permanent terms, except the judges of the Constitutional Court of Ukraine and judges appointed to the office for the first time, should be taken into account. Any law which purported to remove every existing judge without any examination of individual liability or culpability would be a clear breach of this constitutional provision”4.
The RPR took this point into consideration, providing for such an assessment as part of a competition procedure for positions within the new court system. Also, termination of tenure of
3 Section 73 of Opinion No. 801/2015. 4 Section 75 of Opinion No. 801/2015. those judges who fail such competition would be done on the basis of constitutional provisions rather than provisions of an ordinary law, as it is done presently. In particular, according to article 6 of the Final and Transitional Provisions of the Law “On Ensuring the Right to a Fair Trial”, failure to verify the ability to administer justice in a particular court as part of the qualification assessment is a basis for recommending a judge’s removal on the grounds of breach of oath of office. This provision envisions a judge’s removal both in the event of negative findings of a primary qualification assessment and in the event of refusal to undergo such an assessment.
8. The Venice Commission recommended considering the appointment of a special commission to carry out the assessments of judges. In the Venice Commission’s opinion, “[s]uch a commission should consist of senior judges and former judges of undoubted integrity, if necessary with the assistance of suitably qualified and independent persons from outside Ukraine”5.
The RPR proposes precisely the establishment of a Temporary Commission for the Selection and Appointment of Judges to carry out competitions to judicial positions. It would consist of 11 members who meet the criteria of integrity and independence, have an impeccable reputation and professional experience as a Constitutional Court judge, or experience in the area of the protection of human rights with civic organizations operating in this sphere; at least 6 of these members should be retired judges. Similar provisions are missing from the Constitutional Commission’s draft.
The RPR leaves open the possibility to revise this recommendation by expanding the composition of the Temporary Commission to include experts from outside of Ukraine.
ІІІ. Socio-Political Context
А. Key Data from Sociological Surveys
9. Public opinion. According to the results of the latest national public opinion survey conducted by USAID FAIR Justice Project and GFK Ukraine, only 5% of citizens trust the courts and 79% reported distrust. The level of trust in the judiciary is the lowest among all branches of government and across all regions of Ukraine. Respondents who took part in court proceedings at least once in the past three years had more trust in the judiciary than those who did not participate in court proceedings (16% and 4%, respectively)6.
The lack of trust in the formal justice system has served to justify vigilante justice for a large portion of society (around 47%). Thus, according to Razumkov Center and Il’ko Kucheriv Democratic Initiatives Foundation, 12% of the population agree that “under the current circumstances, vigilante justice is the only way to punish criminals”. 35% of the population believe that vigilante justice, while unacceptable, can be justifiable in some circumstances. 46% of the population are against vigilante justice under any circumstances7.
According to a poll by the Center for Political and Legal Reforms, Razumkov Center, and the Il’ko Kucheriv Democratic Initiatives Foundation, the key problems that lead to the lack of trust in the judiciary, according to respondents, are prevalence of corruption among judges (94%), dependence
5 Section 81 of Opinion No. 801/2015. 6 National Public Opinion Survey on Democratic, Economic and Judicial Reforms, Including Implementation of the Law on the Purification of Government (July 2015) // http://www.fair.org.ua/content/library_doc/2015_FAIR_July_Public_Survey_Lustration__ENG.pdf. 7 Public Opinion in Ukraine: Protest Attitudes in Times of Crisis (July 2015) // http://www.dif.org.ua/en/publications/press- relizy/gromadska-dumka_1439554738.htm. of judges on politicians (81%) and oligarchs (80%), adoption of “ordered” decisions (77%), and prevalence of the mutual cover-up within the court system (73%)8.
One out every five respondents believes that the courts, prosecution, and police are the main obstacle to all reform efforts in Ukraine. Among all the necessary reforms, respondents prioritize anti-corruption reform (65%) and reform of the judicial system and the law enforcement (58%)9.
Ukrainians believe that the process of government cleansing (lustration) is necessary, but is not being implemented in line with the society’s demands. Opinion is split regarding the lustration of judges: - the judicial corps requires a complete renewal; none of the current sitting judge can continue administering justice any more (49%); - all judges must undergo vetting that will determine whether the judge can remain in office (36%); - only certain judges (i.e., those with regards to whom the public has complaints) must undergo vetting (e.g., judges who issued illegitimate decisions, were appointed under protection of politicians, etc.) (7%)10.
10. Experts’ opinion. 80% of experts surveyed consider reform of the judiciary and the law enforcement to be the key task for Ukraine. The same number of respondents supports radical and urgent changes in the judicial system.
Experts also outlined the key obstacles to implementation of judicial reform: resistance of the judicial system itself (26%), desire of the government to directly influence the judicial process (26%), lack of professionalism and corruption among the system actors (23%), lack of political will (20%), and the war in the East and annexation of Crimea (3%).
80% of experts surveyed consider the influence by representatives of the current judiciary the key factor in the slow progress of reform. 77% of experts surveyed believe that the government is not considering the society’s opinion when it comes to reform of the judicial system11.
11. Investors’ opinion. Among the strategic issues of concern to investors, the greatest discontent is caused by the current situation in the judicial system (79% of businessmen surveyed) and the lack of results in the fight against corruption (77%). The investors called out the judicial authorities and the fiscal service as the least effective governmental institutions12.
12. Judges’ opinion. The guarded opinions of judges surveyed indicate a low level of readiness for change and demonstrate the huge gap with the expectations of Ukrainian society. The results of the surveys of judges, experts, and the public indicate that all parties agree only in their support for eliminating political influences over the judicial system.
The majority of judges surveyed do not deny the necessity of reforming the judicial system, but only 12% of respondents consider it to be one of the most urgent tasks. Instead, the opinion that the reform is necessary, but there are currently other more urgent tasks has been the most prevalent (51%). Another 16% think that the reform is not timely and can be postponed, while a full 19% believe that there is no particular need for judicial reform at all.
8 Judicial Reform: Public Opinion of the Population of Ukraine (December 2014) // http://en.pravo.org.ua/2-uncategorised/569- judicial-reform-public-opinion-poll-judges-and-experts-surveys.html. 9 Reforms in Ukraine: Public Opinion of Citizens (July 2015) // http://www.dif.org.ua/en/publications/press-relizy/reformi-v- ukselennja.htm. 10 National Public Opinion Survey on Democratic, Economic and Judicial Reforms, Including Implementation of the Law on the Purification of Government (July 2015) // Ibid. 11 Results of Expert Survey: Evaluation of the Judicial Reform Concept Paper (International Center for Policy Studies, Sept. 2015) // Handout materials during public consultations on Judicial Reform: Analysis of State Decisions, which took place on Sept. 22, 2015. 12 European Business Association (EBA) Investment Attractiveness Index Results (2015-Q2) // http://www.eba.com.ua/static/indices/iai/Index_28_eng_2015.pdf. Only 1.5% of judges surveyed are convinced of the need for a radical change, and another 30% spoke in favor of significant changes. At the same time, almost 40% of judges surveyed agree with partial and cautious changes, whereas 24% insist that the system of justice does not need any changes whatsoever.
In the opinion of the majority of judges, the key objectives of the judicial reform are to eliminate the influence of other branches of the government (73%) and to simplify the intricacies of the court procedures for the parties (47%). Other problems that, judges believe, should be addressed by the judicial reform included too many tiers in the court structure (25%), influence on judges by the prosecution and the security services (20%), and corruption in courts (14%).
67% of judges do not support lustration in any form. At the same time, 2.3% of judges surveyed supported the creation of a new judicial system through constitutional amendments, as well as the new selection process for all judicial positions13.
B. Ukraine in Global Rankings
13. According to Gallup findings, immediately prior to the Revolution of Dignity, the level of trust in courts in Ukraine was one of the lowest in the world (only 16%) and the lowest among the former Soviet countries14. 2014 data from the OECD placed Ukraine at the bottom spot of its rankings of trust in courts (at 12%) compared to the other countries in this organization15. Within the last year, this indicator has fallen to only 5% of those who have confidence in the courts.
Ukraine is the lowest-ranked among OECD countries when it comes to level of trust in courts (2014)
13 Judicial Reform: Public Opinion of the Population of Ukraine (December 2014) // Ibid. 14 Confidence in Judicial Systems Varies Worldwide // http://www.gallup.com/poll/178757/confidence-judicial-systems-varies-worldwide.aspx?utm_source=confidence%20in %20judiciary&utm_medium=search&utm_campaign=tiles. 15 OECD / Організація економічного співробітництва і розвитку // http://on.fb.me/1e9U3vj. At the same time, Ukraine ranked 142nd out of 175 countries studied in Transparency International’s Corruption Perception Index for 201416.
The World Justice Project’s 2015 Rule of Law Index ranks Ukraine 70th out of 102 countries studied, in terms of the implementation of rule of law requirements, placing Ukraine ahead of China, Tanzania, Zambia, Kyrgyzstan, and Russia17. Possibly due to the fact that a functioning judiciary is not the only criteria for this assessment, the Rule of Law Index is more optimistic with regard to Ukraine.
For a European country such as Ukraine, such low positions in the global rankings are a product, above all, of its inadequately functioning judicial system, thus necessitating decisive emergency action in the course of judicial reform.
C. De-communization
14. As evidenced by the experience of the former Soviet countries, those states that have not undergone a full-fledged de-communization process have proven extremely weak in the face of restoration of authoritarian methods of governance and usurpation of power – despite the initial democratic processes (e.g., Russian Federation, Belarus, most of the Central Asian states). Ukraine had also gone through a similar negative development period, as it has not carried out effective reforms that would change the dynamics of relationships within the government bureaucracy.
15. When it comes to the organization of public administration and judiciary, Ukraine still remains “Soviet” in style. Telephone justice, as well as summoning judges “to the carpet” by politicians and officials remain effective leverages and a means of influencing the justice. Rampant corruption added into this mix over the past two decades.
16. Euromaidan started in 2013 as the manifestation of Ukrainian society’s choice of a democratic, European development vector, as opposed to returning to the totalitarian past. A significant portion of the society viewed Yanukovych’s authoritarian regime as an attempt to return to the communist past. The Revolution of Dignity, in turn, is the Ukrainian society’s attempt to rid itself of the remnants of totalitarianism and its symbols.
Initially, this was happening spontaneously: throughout 2014, Ukraine underwent a very powerful wave of demolitions of and vandalism against the Lenin monuments. This process came to be known as “Lenin-fall”18.
17. The Law of Ukraine “On Government Cleansing” adopted in October 2014 introduced a ban on occupying important government offices for a certain time period, among others, by former Communist Party and Komsomol leadership, as well as former KGB officers and agents. It is these persons as holders of the totalitarian regime’s institutional memory, along with the officials from Yanukovych’s rule, who carry the greatest threat to Ukraine’s national security, as they form the basis for reproduction of authoritarianism and the loss of independence by Ukraine.
Indeed, according to the Council of Europe’s Resolution 1096 (1996), “[t]he aim of lustration is not to punish people presumed guilty – this is the task of prosecutors using criminal law – but to protect the newly emerged democracy”19.
16 Corruption Perceptions Index 2014: Results // http://www.transparency.org/cpi2014/results. 17 Rule of Law Around the World - 2015 // http://worldjusticeproject.org/rule-law-around-world. 18 Lenin-fall // https://uk.wikipedia.org/wiki/Ленінопад. 18. Subsequently, in April 2015, Parliament adopted a set of four “de-communization” laws: “On Legal Status and Honoring the Memory of Fighters for Ukraine’s Independence in the XX Century”, “On Eternalizing the Victory over Nazism during the Second World War of 1939-1945”, “On Access to the Archives of Repression Agencies of the Communist Totalitarian Regime of 1917-1991”, and “On Condemning the Communist and the National-Socialist (Nazi) Totalitarian Regimes and Prohibiting the Promotion of their Symbols”20.
19. After gaining its independence in 1991, Ukraine inherited its judicial system from the USSR, where the totality of power belonged to the communist party. The courts were completely dependent on the party authorities, both de facto and ideologically. Gradually, the center of power shifted from the communist party to the executive branch, which emerged on the basis of party authorities and executive committees of councils of various levels; these retained the influence over the judiciary.
Arbitration courts (currently known as economic courts) were established in 1992 on the basis of a system of administrative authorities – the state arbitration boards – which facilitated the preservation of administrative-style relationships (see, e.g., European Court of Human Rights judgment in Sovtransavto Holding v. Ukraine).
Administrative courts that were established in the second half of 2010s have gradually transformed into an instrument for restricting the human rights, as they were, for the most part, formed from among the same judges who held positions on general jurisdiction and economic courts.
The dependence of the courts on other branches of government (primarily, the executive) was also supplemented by raging corruption, which resulted from a compromise between the executive branch (notably, the law enforcement system) and the judiciary. In essence, this compromise involves the executive tolerating corruption in courts – as long as judges comply with the orders.
Due to these factors, the judicial system in Ukraine is a judicial power in name only; it has little in common with the judicial systems of developed countries in Europe and rest of the world in terms of its substance and values. De-communization process left the judiciary aside.
D. Judges’ Values and Esprit de Corps
20. A certain style of esprit de corps has developed among the Ukrainian judges; in many respects, this has been inherited from the Soviet era. Elements of this subculture include, in particular, the features discussed below.
21. Court presidents are open to discussing pending cases, even those assigned to other judges, with officials. For example, in 2015, the prosecution accused Kyiv City Appellate Court president, A. Chernushenko, in illegally interfering with the automated case assignment system. After Parliament consented to his arrest, A. Chernushenko disappeared – but released a video in which he admitted visiting the Presidential Administration on multiple occasions to report on pending cases prior to their resolution, as well as receiving instructions as to a needed outcome. In turn, the criminal persecution against him is, allegedly, a result of his failure to comply with certain instructions issued by top officials within the Presidential Administration21. Subsequently, a Security Service of Ukraine representative reported that A. Chernushenko was a former KGB
19 Section 12 of the Parliamentary Assembly of the Council of Europe Resolution 1096 (1996) on Measures to Dismantle the Heritage of Former Communist Totalitarian Systems // http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp? fileid=16507&lang=en. 20 For additional details, see Decommunization in Ukraine // https://en.wikipedia.org/wiki/Decommunization_in_Ukraine. 21 Judge Chernushenko: Poroshenko and Filatov ordered judgments // http://www.theinsider.ua/politics/55dfee9e3e4cd. officer and that there was an ongoing inquiry into whether he could also be an agent of Russian security services22.
22. Court presidents pass on the paymasters’ instructions to judges, while the latter are accustomed to seeking court presidents’ consent for decisions in “sensitive” cases. Instructions could take on a form of a request or a polite question – something to the effect of “Is it possible to legally resolve a case in favor of a certain party?” Typically, a judge would find possibilities for such a “lawful” resolution of a case. A judge reversing such an opinion risks being left a minority. For example, Cherkasy Oblast Appellate Court president, V. Babenko, threatened one of the judges for failure to comply with a request to resolve a case in favor of a business of one of the oligarchs. Purportedly, the judge was disrespectful towards the company’s employees, as the company was supposed to provide premises for the festivities in connection with the Judges’ Day. An audio-recording of this conversation served as the basis for this judge’s complaint to prosecutor’s office; however, there appears to have been no progress in this case thus far23.
23. Judges don’t turn in “one of their own”. Judges help those who are criminally connected to them avoid responsibility. For instance, the majority of judges in the abovementioned Cherkasy Oblast Appellate Court once again elected V. Babenko as their president in 2015, even after the reports of his interference in the administration of justice received significant publicity. Judges apparently tolerate the relationship of subordination within their workplace, and may even fear that their issuance of ordered judgments would be uncovered should their court president be held criminally liable. It is much easier to avoid responsibility while serving as a court president.
24. Judges don’t view themselves as victims of political influences, but rather as agents of political (oligarchic) power, as this serves to guarantee the immunity for judges’ illegal incomes, impunity, and security. This was especially noticeable during the Yanukovych presidency. For the most part, the same orientation remains now. Yet, some of the judges who complied with instruction of the previous political regime publicly claim political persecution and interference with their independence when they are faced with the efforts to have them removed from office or criminally investigated. Paradoxically, judges are much more fearful of influence from the public and the journalists (50%) rather than of central government officials (28%), Presidential Administration (23%), local officials (14%), prosecution (8%), or court presidents (6%)24.
25. Many judges value luxury living. Quite a few judges have used their occupations to become owners of elite housing, large land estates, representative class vehicles, and four-runners. For instance, judges on the Kharkiv Circuit Admininistrative Court could boast such cars as Porsche Panamera (two judges), Mercedes-Benz (seven judges), BMW (three judges), Lexus (two judges), etc. None of these cars are more than 10 years old25. Incidentally, this same court has the distinction of banning the largest number of peaceful assemblies during the Yanukovych presidency, having ruled on every petition in favor of local authorities. In 2014, former deputy president of the Higher Economic Court A. Yemelyanov declared ownership of two land plots, two houses, and 12 apartments – all while earning an annual salary of approximately EUR 12 thousand. In July 2015, State Financial Monitoring Service of Ukraine analyzed financial transactions of the judge and his wife and concluded that the judge’s expenditures significantly exceeded his official income. A Liechtenstein court even arrested the accounts of a company whose beneficiary was listed as A. Yemelyanov’s wife26. That being said, many judges simply register their property to their relatives or even other persons who live separately, and avoid declaring anything in this way.
22 Evidence Emerges of the Controversial Judge’s Affiliation with FSB // http://24tv.ua/ukrayina/zyavilis_dokazi_prichetnosti_skandalnogo_suddi_do_fsb/n612960. 23 Myrnyj М. Price of Independence for a Ukrainian Judge // http://humanrights.org.ua/en/material/cina_nezalezhnosti_ukrajinskogo_suddi?cl=en. 24 Judicial Reform: Public Opinion of the Population of Ukraine (December 2014) // Ibid. 25 Chart of Vehicles // http://prosud.info/wiki/Таблиця_ТЗ._Харківський_ОАС. 26 Liechtenstein Freezes 300 Million in Offshore Accounts of a Higher Economic Court Judge’s Wife // http://nashigroshi.org/2015/09/03/lihtenshtejn-zamorozyv-300-miljoniv-ofshoru-druzhyny-suddi-vyschoho-hospsudu. 26. Judges are accustomed to using their status to avoid responsibility. For example, judges frequently use their official IDs to avoid responsibility for traffic offenses. Quite often, judges drive their cars under the influence of alcohol. An incident involving a judge of Makarivsky District Court, V. Oberemok, received publicity thanks to a video. This judge, while being intoxicated, attempted to avoid responsibility by flashing his ID and threatening with a gun and connections with the prosecutor’s office. After speaking with the police officer, he got back into the car and drove away27.
27. The government presently lacks the resources to break these negative phenomena within the judicial subculture by means of individually prosecuting large numbers of judges, as there is still no functioning anticorruption bureau, independent prosecution, or courts. It is also doubtful that individual assessments will be able to play this role, as it places the burden on the qualification body to prove lack of integrity on the part of a judge – rather than requiring a judge him/herself to prove impeccable reputation and dispel any doubts as to it.
IV. Resistance by the Judiciary
28. Previously (see item 10 above), we mentioned that resistance by the judiciary is, in experts’ opinion, the primary obstacle to judicial reform. This resistance has revealed a steady lack of willingness on the part of the judiciary to cleanse its ranks independently. In particular, such resistance has manifested itself as follows.
29. Adopted in April 2014, the Law of Ukraine “On the Restoration of Trust in the Judiciary in Ukraine” terminated the authority of members of the High Council of Justice, the High Qualification Commission of Judges, as well as of court presidents and their deputies, who were used by the Yanukovych regime to control the courts.
Contrary to the law, however, the previous Chair of the High Qualification Commission of Judges was able to obtain a dubious court decision that enabled him to “resuscitate” the work of the Commission’s in its former composition – and the Commission even took on the task of “lustration” of judges (the former members of this body was attempting to prevent removals of judges by resorting to termination of disciplinary cases or issuing reprimands).
In December 2014, it finally became possible to launch the work of the High Qualification Commission of Judges in its new composition which, similarly to the President and Parliament, did not recognize any decisions issued by “impostors”.
Court decisions were once again used to preempt the selection of new members to the High Council of Justice. In particular, courts declared six of the Council’s members (appointees of legal scholars and advocates) as incompetent. This was preventing the start of the High Council of Justice’s operations. This body was only able to begin working in its new composition in July 2015, following passage of a law in February 2015 that re-launched the appointment of new membership to the High Council of Justice from a clean slate.
General meetings of judges in each court were given the right to elect court president and his/her deputies independently (previously this was done by the High Council of Justice, contrary to the Constitution). Unfortunately, after the new law took effect, nearly 80% of courts elected to these offices the same individuals who held court president and deputy president positions before – and who were regarded as cronies of the former political authorities. In many courts, there were no alternative nominees, as judges feared negative consequences should they happen to lose to former
27 Drunk Judge in Kyiv Threatens Traffic Cop with a Gun // http://24tv.ua/ukrayina/u_kiyevi_pyaniy_suddya_prigroziv_daishniku_pistoletom/n549456. court presidents. In some courts, former presidents took advantage of the judges’ passivity, while in others they played up the fact that a significant number of judges “owe” their positions on the particular court to the particular court president.
Law “On the Restoration of Trust in the Judiciary” established a Temporary Special Commission under the High Council of Justice for the purpose of vetting judges involved in prohibiting peaceful assemblies and in repressions against assembly participants. The Temporary Special Commission carried out review of complaints against such judges and issued opinions as to whether or not their conduct contained elements of the breach of oath of office. These opinions were then forwarded to the High Council of Justice which, according to the Constitution, is authorized to decide on submitting recommendations for removal from judicial office.
To preempt the Temporary Special Commission from operating, former Parliament members closely linked to Yanukovych appealed the constitutionality of the Law “On the Restoration of Trust in the Judiciary” to the Constitutional Court – in addition to attempting to whittle down some of the Law’s achievements through a series of various draft laws.
Additionally, a number of civil society organizations of dubious reputation (apparently connected to judges and politicians representing the Yanukovych regime) also attempted to forestall the Commission’s activity by appealing to courts the appointment of the Commission’s select members or questioning its competence. Judges are also appealing the Commission’s decisions as a means of suspending the review of cases by the High Council of Justice.
30. In September 2014, the second lustration law “On Government Cleansing” was adopted under public pressure. This time, the applicability of the law extended to a large number of officials.
A number of that Law’s provisions touch upon judges. In particular, the Law envisions mandatory filing of a statement containing information on compliance/noncompliance with the vetting criteria, as well as of a property declaration. Such documents are to be filed by all judges with their respective court presidents.
The court president is required to arrange for verification of information contained in a judge’s property declaration. To this end, he/she is supposed to refer the declaration to a competent authority (initially a fiscal body, later the National Corruption Prevention Agency, which is yet to become operational). In the event discrepancies are identified between a judge’s property, income, and expenses and the declared information, a judge in question will have an opportunity to provide explanations. The court president would then refer any opinion finding dishonest information to the Ministry of Justice, which would, in turn, submit it to the High Council of Justice and/or the High Qualification Commission of Judges to decide on removing the judge from office.
Thus far, this process has proven to be inefficient in respect of judges, as declarations are undergoing only in-house verification. Isolated negative opinions have been successfully reversed by the courts.
The vetting process has not even started in many of the courts. After all, the Supreme Court appealed the constitutionality of the Law’s provisions applicable to judges before the Constitutional Court. Thus far, the Law’s provisions have never been applied to remove any judge from office.
31. In February 2015, Parliament adopted the Law of Ukraine “On Ensuring the Right to a Fair Trial”, which was introduced by the President.
A qualification assessment of all Supreme Court and higher specialized courts’ judge was to be carried out within six months. Yet, as of the end of September, such assessment is yet to start, since the Council of Judges has forestalled the procedure for approving the assessment methodology28. Moreover, the Council of Judges relied on the Venice Commission’s opinion to apply to the Constitutional Court with a petition to declare any judicial removals resulting from such assessment unconstitutional.
Similarly to the previous law, the Law “On Ensuring the Right to a Fair Trial” contains a limitation that a court president and deputy president may not hold this office for more than two consecutive terms. The Council of Judges has interpreted this restriction in such a way that appointments of judges to these offices under the new law are deemed as first-time appointments. Thus, court presidents and their deputies who held these positions going back to Yanukovych’s time were given a chance to hold on to these positions for four more years.
The Law has provided for automated assignment of cases. However, contrary to the Law, the Council of Judges issued a regulation providing for numerous exceptions from this rule. In particular, it authorized court presidents and deputy presidents to establish panels of judges to try specific cases, bypassing the automated system.
V. Relevant International Experience
32. Ukraine is not the only country that faced the need for a radical updating of its judicial system. Therefore, it is important to take into consideration the experience of other countries, both positive and negative, during the judicial reform in Ukraine.
33. Estonia. The level of trust in the judiciary in Estonia approaches those in Canada, the US, and the UK, leaving other post-totalitarian countries of Eastern Europe far behind.
The foundations of a new judicial system in Estonia were laid down by the 1992 Constitution. A newly established State Court began operating in May 1993 in Tartu. The Soviet-era Estonian Supreme Court ceased operating in October of the same year, and a new three-tier judicial system began operating in Estonia in December 1993. By the end of 1994, Estonia had established administrative courts, 21 county and city courts, and three district courts.
The judicial reform in Estonia envisioned the passage of a mandatory qualification exam for a judicial office, both by new candidates for judgeships and by judges who practiced during the Soviet period. Following the reform, the Estonian judicial corps was renewed by 67 percent, with the average age of a judge being under 40.
34. Bosnia and Herzegovina. The process of cleansing of the judicial ranks took place in Bosnia and Herzegovina in 2002-2004, where a comprehensive reappointment process was conducted, drawing upon using the experience of East Germany. Since the country’s Constitution guaranteed judges life tenure, Parliament amended the Basic Law to temporarily limit the judges’ tenure during the transitional period, coinciding with the restructuring of the court system.
To ensure objectivity, impartiality, and transparency of the judicial reappointment process, an Independent Judicial Commission was established, composed of local authorities representatives, international experts, as well as international judges of the Constitutional Court of Bosnia and Herzegovina. Three temporary High Judicial and Prosecutorial Councils were established under the Independent Judicial Commission, one for each of the confederate entities. After the establishment of these bodies, the government declared all judicial positions vacant and invited all interested applicants that met the qualification requirements for the position of a judge to participate in an open competition.
28 Approval procedure of qualification assessment of judges has not been completed // http://vkksu.gov.ua/en/news/approval- procedure-of-qualification-assessment-of-judges-has-not-been-completed. To some extent, members of the public were able to influence the process of cleansing of the judiciary in Bosnia, as they had the opportunity to submit complaints concerning judicial candidates. The review found that 15% of complaints were justified.
As a result of the reappointment process, about 75-80% of judges were reappointed, while the remainder lost their positions.
35. Serbia. The Republic of Serbia, which introduced a new procedure for the appointment of judges through amendments to the Constitution in 2006, has had an unsuccessful lustration experience. According to these amendments, the authority to elect judges was given to the Serbian parliament (the National Assembly), acting upon a nomination by the High Judicial Council.
The government launched the reappointment process for judges, which was noted for its lack of transparency and clarity. It is known that there more than 5,000 applications were received from candidates for 2,483 vacant judicial positions. Because the criteria and standards for the candidate evaluations were not clearly defined, there were many abuses. Judges that were not reinstated – and there were many of them – were not even informed of the reasons for their removal and were not given an opportunity to challenge these decisions, which were issued primarily based on information from special security services.
This process was also harshly condemned by the European Committee, which stressed that the criteria for reappointment did not meet recommendations of the Venice Commission and left room for political influence. The Monitoring Mission confirmed that the procedure had significant deficiencies related to the structure and independence of the High Judicial Council, as well as the lack of objective criteria and transparency of the entire process.
In 2010, the Constitutional Court of Serbia found that the process did not meet generally accepted principles and violated the right to a fair trial. In view of this, the Constitutional Court ordered the High Judicial Council to review decisions concerning certain judges, whose complaints were the subject of the Court’s review. However, this did not solve the problem, since most of the decisions were not reversed on appeal, as this review was conducted by the same judicial council that issued the previous decision.
In 2012, the Constitutional Court ruled to repeal all decisions of the High Judicial Council on the grounds of violations of the right to a fair trial and the principle of impartiality, due to the composition of the High Judicial Council at the time of the adoption of original decisions and their review. The Court ordered reinstatement of all judges who filed the complaints.
36. Slovakia. The level of trust in Slovakian courts is among the lowest in the EU (around 30%). In June 2014, Parliament of the Slovak Republic adopted the Constitutional Act on amendments to the Basic Law, providing for radical cleansing (vetting) of all Slovak courts (Art. 154d of the Constitution of the Slovak Republic).
The adopted Constitutional Act immediately received a negative assessment from European experts. Thus, on June 16, 2014, Consultative Council of European Judges offered its commentary on certain provisions of the Constitutional Act. The Consultative Council noted that lustration of judges as a means of restoring public confidence by expelling the individuals with a serious lack of integrity could only be implemented after the change in the system of government and the transition from a totalitarian regime to a democratic state.
The Consultative Council emphasized that the fall of communism in the former Czechoslovakia took place many years ago, and Slovakia has been a member of the European Union for the past several years. Thus, if the country did not undergo a recent transition from a totalitarian to a democratic system, there is no place for either lustration process or vetting.
At the same time, Slovakia launched a parallel evaluation process of judges, which is ongoing. About a quarter of the judges underwent the evaluation thus far, and all of them were rated as “excellent”. So, this process did not facilitate the cleansing of the judiciary.
37. The experience of the abovementioned countries suggests that deviations from the principle of irremovability of judges may be justified if there are compelling reasons, in particular to facilitate the transition from an authoritarian to a democratic regime. At the same time, the process of cleansing judicial ranks should be fair, free of political influence, and governed by clear criteria. Lack of transparency in the cleansing processes and its implementation outside of control by international organizations could have disastrous consequences. On the other hand, the mechanisms of the cleansing process should be effective and should not result in the preservation of the status quo.
VI. Risk Analysis
38. Opponents to the idea of cleansing the judicial ranks through constitutional amendments present a series of risks, which must necessarily be considered in the event that this proposal is implemented.
39. The risk of judicial system collapse. Opponents note that if all judges are removed from their positions at once, the system of justice will be paralyzed. At the same time, the sequential launch of new courts and phased-out dissolution of previous courts, as proposed by the RPR, will enable uninterrupted administration of justice and prevent even a short-term vacuum in the justice system.
40.The risk of forestalling the process if the selection of judges is entrusted to existing qualification bodies, such as the High Council of Justice and the High Qualification Commission of Judges. These bodies have many other functions, including disciplinary duties, and therefore will not be able to effectively work on the selection of a new generation of judges. Consequently, the RPR proposes the creation of a separate commission.
41.The risk of repeating the Serbian scenario. In Serbia, the Constitutional Court found that the removal of many judges in the course of a complete reappointment of the judiciary was unconstitutional. This decision was partially tied to a lack of transparency in the process, as well as the unjustified refusals to reappoint judges to their positions on the basis of data from special security services. To avoid repeating this scenario in Ukraine, the law must outline a fair competitive selection process, with clear criteria, participants’ access to its materials with an opportunity to comment, and motivated decisions by the commission charged with selecting and appointing judges.
Executive Summary
1. Cleansing of the judicial system must be done in concert with restructuring of the courts: transparent competitions to each judicial position are introduced with the establishment of a new, three-tier system of courts. A temporary commission for the selection and appointment of judges would be charged with conducting competitions in a phased manner, starting at the apex of the court system.
The procedure for selecting judges to new courts must be transparent and based on clear criteria, and decisions of the selection and appointment body must be motivated. A new generation of judges oriented towards European values could become a result of this process. As such, the government would create preconditions for the implementation of the right to a fair trial guaranteed by the European Convention on Human Rights.
2. All the necessary prerequisites have emerged in Ukraine for the establishment of a new judicial system and the appointment of judicial corps from among persons characterized by honesty and integrity: - departure from an authoritarian regime and societal demand for de-communization; - corrupt scheme of relationships within the judiciary; - distorted system of values that is prevalent among judges; - total distrust in sitting judges by the public and the business community, which harms those judges who are ethical; - the needs for effective mechanisms of protection of rights, for simplification of a court system, and for implementation of European standards; - stated political will to carry out such reform. Failure to take advantage of this opportunity would mean further downfall of the country into abyss, as the rights, property, and investment will remain unprotected by an independent and honest court.
3. The alternative proposal, one submitted by the Constitutional Commission and involving individual assessments of judges could deprive Ukraine of the opportunity to update the judicial system and give life to a new generation of judges. The judicial system’s consistent and powerful resistance is the evidence of the system’s ability to judicially preempt the removal of any judge on the basis of an individual decision grounded in assessment results.
It should also be noted that, given the circumstances of total distrust in judges and low level of trust in political authorities, the idea of electing judges in open elections is increasingly gaining public popularity. We do not support this idea; however, it could easily become a reality in the event of judicial reform failure and society’s radicalization.
PS. We would also like to take this opportunity to draw the Venice Commission’s attention to dangerous judiciary-related provisions of the draft constitutional amendments approved by the Constitutional Commission:
- a provision on the President’s authority to appoint judges to positions on courts presupposes transfer of judges by the President, as well as, quite feasibly, appointments of court presidents and their deputies – which would mean a judge’s total dependence on the President and his administration;
- a provision on raising the age and work experience requirements for future judges contains the threat of cutting off young and promising judicial candidates, and such persons are crucial for the development of a new generation of judges. In light of this, the introduction of this provision is worth postponing;
- a provision on the Supreme Court as the highest court, as well as the high courts preserves the existing four-tier system, as the high courts are subordinate to the highest one;
- a provision on the President and Parliament directly participating in appointing members to the High Council of Justice could preserve the political nature of the functioning of this body;
- a lack of provision on regular rotation of a portion of members of the High Council of Justice puts endangers the continued operation of this body in the event that the tenure of all of its members runs out and new members are not elected; - a provision on purely political nature of the appointment and dismissal of the Prosecutor General (by the President with Parliament’s consent) will preserve the situation whereby the prosecution is used to achieve political aims. In our opinion, a suitable candidate should be selected by the High Council of Justice through a competition;
- a provision on formalizing, at the constitutional level, of monopoly by advocates on representation in courts does not require such constitutional formalization, because it is not supported by any organizational framework. We believe such a decision is premature, given the large number of problems that exist with the organized bar (e.g., those relating to externally managed advocate self- governance, purchase of advocate licenses, etc.). Once these problems are resolved not only by law, but also in practice, there would be no obstacles to introducing such a monopoly by means of an ordinary rather than a constitutional law.
Prepared by experts of the Reanimation Package of Reforms:
Roman Kuybida, Centre of Policy and Legal Reform
Mykhailo Zhernakov, judge (2012-2015)
Elina Shyshkina, former Parliament member
Taras Shepel, advocate, Chairman of The International Chamber of Commerce - Ukraine Permanent Arbitration Court, Vice-Chairman of The Arbitration Chamber of Ukraine
Markiyan Halabala, advocate, Deputy Chair of the Temporary Special Commission for Vetting of Judges of the Courts of General Jurisdiction