We Need a Balance Between the Quality and Independence of the Judicial System

New government can either speed up the reform or reverse it. Which one will it choose, remains to be seem.

depositphotos / AntonMatyukha

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Table 1. Number of positions and vacancies in Ukrainian courts

Source: Higher Qualification Commission of Judges

  • the court system was changed from four-level to three-level one. The intermediate level between appellate courts and the Supreme Court introduced by former president Yanukovych was eliminated. The role of the Supreme Court was strengthened. An open competition for 196 positions in the Supreme Court started in 2017. In May 2019, 193 vacancies were filled. However, the Civic Integrity Council that had an advisory role in the selection procedure reports that 44 appointees have dubious reputation.
  • the Higher Court on Intellectual Property and the Higher Anti-Corruption Court (HAC) were established in mid-2018. Establishment of the HAC was uneasy because this court completes the vertical of anti-corruption bodies – National Anti-Corruption Bureau (investigation), Anti-Corruption Prosecution and Anti-Corruption Court (conviction). In September 2019 the HAC started its operations. International experts played a major role in selection of the HAC judges. In fact, the willingness of the former president Poroshenko to undermine their role was one of the major obstacles to the adoption of the law on the HAC.
  • the independence of the judiciary was strengthened along several lines. Firstly, selection and disciplinary actions towards judges are performed mostly by the professional community. Thus, if previously the Higher Council of Justice (HCJ) consisted of 10 representatives of judges and other lawyers and 10 representatives of executive and legislative power, today the ratio is 15 to 6. The Higher Qualification Commission of Judges (HQCJ – the body responsible for selection of judges) previously did not include representatives of attorneys and included a person from the Ministry of Justice. Now it includes two representatives of attorneys and no Ministry representatives. Secondly, judges now do not have a five-year ‘probation’ period. They are appointed once and for life (they can be dismissed by the HCJ if they commit a crime or ruin their reputation). However, the minimum age and experience needed to become a judge were raised. Thirdly, judges are appointed not by the parliament but by the Higher Council of Justice (the president formally signs the decree with appointment of judges recommended by the HCJ). At the same time, members of the HCJ and the HQCJ cannot work elsewhere while previously they were allowed to hold elected or executive offices. Finally, salaries of judges were increased multiple times. Simultaneously, judges are obliged to submit the declaration of their assets and revenues and the declaration of integrity, and their immunity was limited – now a judge can be detained if captured at the crime scene.
  • the institution of attorneys was considerably strengthened – they received a lot of opportunities to protect their clients which were not available to them before. At the same time, only attorneys are allowed to represent a person in court, while previously anyone could do that (although the law which still has to be adopted can limit this clause only to criminal or otherwise significant cases).
  • court procedures were streamlined – in particular, many have been transferred into electronic form (e-court), and an automatic distribution of cases among judges was introduced.
  • to improve the enforcement of court decisions, private enforcement agents were allowed, and remuneration of public enforcement agents was linked to the results of their work.

Figure 1. Trust to judiciary, prosecution, police. Panel A.

Note: the graph shows the share of people who said they trust or mostly trust in those who had a definite answer. Source: Institute of Sociology NASU surveys

Panel B.

Source: Democratic Initiatives Surveys

Table 3. Trust to judiciary by different types of respondents

Source: USAID “New Justice Program” surveys

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