Judicial reform: system transformations or “point” changes?
Oleksii Malovatskyi, Deputy Chairman of the High Council of Justice
Judicial reform – one of the favorite topics of the domestic politicum, expert environment and public activists. Ukrainian Themis does not have time to recover from one innovation, as the next one is suggested. And after it appear regular “reformist” ideas of group of “experts” on creation the new legal order that is capable to satisfy interests of only their clients.
Unfortunately, the goals of such "reforms" are purely applied nature: to dismiss a judge who made the "wrong" decision, to change the composition of judicial governance bodies (HCJ, HQCJ and CJU) in which "wrong were elected." Or to remove the state from the function of justice altogether, trying under the slogan "All judges are dishonest and courts are unfair" to replace national courts with foreign - international commercial arbitrations in London, Paris or Stockholm.
Such reforming has nothing to do with solving the urgent problems of the Ukrainian judiciary, such as lack of staff, chronic underfunding, imperfect legislation, a complex of dependence of judges on political power. And most importantly - the lack of strategic planning and ideas about the future model of the judiciary. As a result, there is only a game in "reform", which creates even more problems and deepens the crisis of power.
Today, the information space is once again spreading messages about the next plans to "improve" the judicial system. "At the moment, there is no globally developed judicial reform," mentioned the other day the Minister of Justice, but it "will continue as part of separate steps." Such steps, according to the official, should be the introduction of mechanisms to verify the integrity of members of the High Council of Justice and improve disciplinary procedures.
Although, two months ago by the decision of the Constitutional Court of Ukraine was recognized unconstitutional a number of provisions of the Law of Ukraine “On making amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” and certain laws of Ukraine regarding the activity of judicial governance bodies” (Law No. 193-IX). Among them also Article 28-1 of the Law No. 193-IX, that provides the formation of the commission on integrity and ethics issues under the HCJ, that “should be established to ensure the transparency and accountability of members of the High Council of Justice and members of the High Qualification Commission of Judges of Ukraine”.
The CCU emphasized that the HCJ as a constitutional body, cannot be accountable to an unconstitutional body, which explained the peculiarity of the status of the HCJ. It should be understood that the decisions of the CCU have prejudicing significance, and therefore in case of a change in legislation are binding for the Verkhovna Rada of Ukraine.
Therefore, the restoration of the mechanism of dismissal of members of the HCJ proposed by the Head of the Ministry of Justice is, in fact, a future step into the unconstitutional past.
By the way, the Council of Europe, the EU, the HCJ, the Supreme Court and a number of professional national organizations warned about the inconsistency of the provisions of Law No. 193-IX with the Constitution of Ukraine. But this did not prevent it from being adopted.
The question may arise: how is accountability of members of the HCJ to society ensured? And at all - are they subject to verification? The answer to "reformers": yes, of cours, they are! Prior to appointment, the members of the HCJ undergo a special verification in 36 public authorities and receive a certificate of possibility to hold office. During exercise of their powers, members of the HCJ are subject to scrutiny by the NAPC, NABU, SSB, prosecutor's office, police, STI and other authorized state bodies of state powers.
Besides, the Law of Ukraine “On the High Council of Justice” empowers the HCJ with the authority in case of oath violation by one of its members to take decission on his/her dismissal from office if 14 members of the Council voted for it. For comparison, the same number of votes is required for the High Council of Justice to appoint a candidate to the position of judge, and, accordingly, the procedure is clear and understandable. The final decision on dismissal of member of the HCJ shall be made by the body that appointed him/her: the President, the Verkhovna Rada, the Congress of Judges, the Congress of Advocates, the Conference of Prosecutors, the Congress of Representatives of Higher Education and Research Institutions in the Area of Law.
In the practice of the High Council of Justice, which existed before establishment of the HCJ in 2017, there were decisions on dismissal of members of the HCJ from their posts for oath violation. That is, the mechanism of responsibility of members of the High Council of Justice is a working one. And, therefore, innovation that provides for establishment of any ethical commissions under it does not meet the stated goal - implementation of still absent mechanism of responsibility of members of the High Council of Justice. So, it has a different task - to change composition of the HCJ in an unconstitutional way.
Reforming by way of reform is the road to nowhere. Reform cannot be an end in itself. Her task is gradual change for the better. This logic should be applied to transformations in the judicial system. But first you need to analyze and highlight the actual problems of legal proceedings.
Reforming by way of reform is the road to nowhere. Reform cannot be an end in itself. Its task is progressive change for the better. This logic should be applied to transformations in the judiciary. But to begin it is necessary to analyze and highlight the pressing problems of the judiciary.
The most acute of these is still a long period of court proceedings. How to solve this problem when courts lack 30% of judges? The answer is simple - to appoint judges. However, the appointment process is too complicated and long, so, it needs to be simplified, while increasing the requirements for candidates for judges.
The problem of administering justice in courts under the quarantine declared in connection with the СOVID-19 pandemic is also an urgent one. Legislative changes have been made, cases in courts can be considered remotely, instead of obtaining certificates of absence of the Internet in court. That is, there are no barriers to online justice. There is only worldview problem. And this problem is not insurmountable: the best professionals, young and promising candidates committed to the ideals of justice need to be brought into the judiciary.
As for the problem of “unfair” court decisions, it needs to be addressed at the legislative level. "Unfair” decision should give impetus to legislative changes, and not force the court to seek a fair or unfair rule and apply them selectively, creating a new “law”. Judicial practice is not a source of law, except of legal position of the Supreme Court. And the latter is not a court of fact. It should create a general practice and, if it is unfair, respond: appeal to the CCU or to the Parliament with initiative for changes (unfortunately, such a function does not exist).
Clear and stable practice of applying the legislation established by the Supreme Court will ensure the effectiveness of disciplinary procedure, arbitrary deviation from which will be considered as disciplinary offense and, accordingly, will allow the HCJ to respond to "unfair" decisions.
However, none of these problems will be resolved by the next “point” reform. And, as we see, this goal does not pursue.