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Nove Pravosuddya Justice Sector Reform Program Nove Pravosuddya Justice Sector Reform Program Lessons Learned and Recommendations from the USAID New Justice Program Study Visit to the High Council for the Judiciary of Portugal on Judicial Self-Governance Operations May 16 to 20, 2017 Background: Pursuant to Objective 1: Judicial Independence and Self-Governance strengthened, Sub-Objective 1.2: Judicial Self-Governance Strengthened, Expected Results 1.2.1: Authorities of Judicial self- governance bodies clearly defined and understood by judicial leadership, judges and judicial personnel, and 1.2.2: The Judiciary exerts leadership in developing strategies, objectives, and initiatives to effectively promote and protect its independence, while ensuring accountability, integrity, transparency and high ethical standards, and Objective 3: Administration of Justice Enhanced, Sub-Objective 3.1: Judicial Administration Institutions, Policies, and Procedures Strengthened, Expected Results 3.1.1: Judicial administration bodies function in more coherent and coordinated fashion and 3.1.2: Strategies, policies, and procedures for managing court operations, and providing quality services to the public implemented, the New Justice supported the High Council of Justice (HCJ) with implementing its new functions envisaged in the Constitution and the Law on the High Council of Justice in conformity with the international and European standards of judicial independence and accountability. Purpose of Study Visit: The study visit took place from May 16 through May 20, 2017 and aimed at familiarizing the HCJ members and representatives of the HCJ Secretariat with the experience and activities of the Portuguese High Council of the Judiciary (Conselho Superior da Magistratura – CSM) https://www.csm.org.pt/. During the visit, the members of the Ukrainian delegation learned about CSM status and activities with a particular focus on strategic planning, organizational structure, internal procedures, organization of case-management, electronic court, judicial disciplinary procedure, cooperation with the respective European institutions supporting judicial councils, as well as the CSM role in protecting judicial independence. Lessons Learned: The participants of the study visit learned about the institutional role, status, composition, organization, and operations of the CSM with a focus on protecting judicial and prosecutors’ independence and autonomy from other branches of powers. The participants identified the CSM experience and practices the HCJ, as a key judicial institution in Ukraine, could employ to improve its operations and build its capacity. The CSM is a constitutional authority that promotes and guarantees the principles of the independence and accountability of the Portuguese judiciary and prosecution service. These principles are embodied into the functions of the CSM related to appointment, transfer, promotion, remuneration, evaluation, and bringing judges and prosecutors to disciplinary liability. The CSM secures its financial autonomy through preparation of its own budget which is subject to approval by the Parliament. The CSM has the competence to issue opinions on legal acts related to the judiciary and the Statute of Judges and, in general, study legislative measures to improve the efficiency of the judiciary and propose them to the Ministry of Justice. The Portuguese CSM has very efficient systems for judicial evaluation and bringing judges to disciplinary liability. Evaluation of judges is conducted on a permanent basis and, depending on the grade received by the judge, the next evaluation may be scheduled in 6 months or 3 years. Judicial evaluation does not undermine judicial independence, but promotes professionalism of judges. Judicial inspectors are highly respected officials who are selected from among judges of appellate courts with at least 15 years of professional experience. Their role is to prevent unethical and inappropriate behavior of judges and conduct investigation of such misconducts. Based on results of investigations, judicial inspectors prepare a comprehensive reports with justifications of the proposed sanctions or other actions. The CSM has at its disposal a dash-board reflecting performance of each individual judge. In case a CSM member or judicial inspector sees a delay in the proceeding, he/she may contact the chief-judge and ask to pay attention to the delay and make sure that the judge has all necessary means to deliver justice in a timely and professional manner. The Supreme Court of Justice of Portugal is the most efficient court of cassation in Europe as the average duration of court proceedings in this court is three to four months before the final decision is rendered, though the are no time limits for consideration of cases set forth in the laws. This has been achieved by granting the Chief-Justice a right to check any case which is being decided in the court and check the time spent for its consideration. The Chief-Justice ensures that all cases are considered in a timely manner and if one of the chambers can not approve a decision due to conflict of opinions, the Chief-Justice may vote in order to resolve the issue. The Court of Sintra implemented the electronic court system for all cases, except for criminal ones, where parties can submit electronic documents, receive electronic notifications and documents through personal cabinets they can enter using their identification document. Court users can register for attending court session or schedule a meeting with court staff even remotely so they do not have to wait in queues. An integrated platform for all courts and judicial institutions makes it possible to speed up the information sharing process and ensures transparency of operations. All institutions have different levels of access to the documents, but everyone can track the document so that any manipulations are impossible. Recommendations: a) Judicial Discipline Develop an effective system for preventing judicial misconducts and raising judges' awareness of the current judicial discipline practice as part of the legislative framework for disciplinary liability of judges. Consider creating a possibility for citizens to file complaints of judicial misconduct in the electronic form. Develop electronic tools for monitoring adherence to judicial conduct standards by judges and a dash-board reflecting performance of individual judges. Develop a regulation/instruction on conducting investigations of judicial misconduct based on the provided examples in Portugal in order to promote objectivity and transparency of judicial disciplinary procedure. Promote the role of judicial inspectors as independent officials who investigate judicial misconduct complaints in a due process. Develop a manual for judicial inspectors on peculiarities of investigations of judicial misconducts and implement the initial and ongoing training programs for them. Improve cooperation with the European institutions dealing with the matters related to HCJ’s functions and promote integration in the European judicial community. This will allow the Ukrainian Judiciary to have a permanent dialogue with the European community aimed at implementing recent innovations in Ukraine and making the judicial reform sustainable. b) Electronic Court Prepare a strategy for automation of courts and judicial institutions and consider the IUDEX system used in Portugal as an example of the electronic platform for judges. Develop judge’s personal cabinet on the judicial platform, which will include the individual performance information, upcoming deadlines of the proceedings and the respective reminders as part of the court automation process. The cabinet will also allow judges to sign up for courses in the National School of Judges, apply for vacant judicial positions, apply for being transferred to another court, etc. Develop and implement an integrated judicial platform for courts and judicial institutions including the HCJ, High Qualifications Commission of Judges of Ukraine, State Judicial Administration, National School of Judges, and Council of Judges of Ukraine aimed at simplifying the documents flow, promoting transparency and access to information, and developing a unified database of the judiciary. Implement the electronic dossier for all judges which will be an integral part of the integrated platform for courts and judicial institutions. c) HCJ Management Consider the CSM’s construction solutions and experience in organizing the premises of CSM while developing a construction plan for the new premises of the HCJ, including placing a front office on the first floor where people could have an immediate response to the most frequent requests. In order to promote an access to courts, recommend that the State Judicial Administration and courts place more information in courts about its structure, working hours, explanation of various units’ functions, signs, etc. Involve on a competitive basis highly qualified judges to assist the HCJ members to perform legal research and perform other duties. Improve the HCJ internal management by developing strategic plans for structural units with performance indicators. .
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