Reform can make the justice system "hand-made"
Vasyl Khrushch, lawyer, member of Ukrainian National association of lawyers, social activist
Why the new justice reform will not correct existing problems of justice system and why it is still essential.
Reforming of justice system in Ukraine has been a matter for the last 20 years. Perhaps it is the longest and unfinished reform in our history. Unfortunately, each new trial to reform courts makes crisis bigger and brings chaos and collapse to the justice system. With the help of big words and mottos concerning changes of personnel they are trying to get rid of high-qualified specialists, letting the most odious ones remain at their places. The new reform has been recently presented by the head of the National Reform council Mikhail Saakashvili, can also not become an exception to the rule. It can possibly bring new problems to the existing ones.
The idea of this reform has some common features with the old Poroshenko’s justice reform that brought some destructive effect. Yet, the shortening of the amount of courts as well as requalification of courts has not been conducted. Certainly, the necessity of justice system reform has been discussed for a long time. Sociological surveys regularly demonstrate critically low level of trust to it. Not paying attention to this requirement of society must be a hastiness of the authority. But while starting reform one must understand that courts are one of the elements of justice system that include law-enforcement body and legal profession. Only if they all work in a right way, citizens can count on protection of their rights, freedom and equitable justice.
The authority of State has recently begun reforming of each of these systems, but the quality of them has been still questioned. For instance the system has almost been wiped out at Police and the prosecution’s office but the building of the new one has not been finished yet. As a result, some of the key state organs have been in "under reformed" condition and cannot fully perform their functions. Instead of completing reforms, new law-enforcement bodies are being made but cannot investigate cases in a good way, collect by legal means good evidence base concerning accused by them people, and as a result their cases are being discussed for years. The absence of resonance verdicts is the best indicator for the situation. Social expectations have not been met.
The only one institution that was saved from so called "reforming" was the legal profession. In 2018 the whole 45-thousand lawyer society voted against №9055 draft law. The Office of the President was trying to make changes through parliament that denied lawyers’ independence in a process and indeed left without defense every person in court. Now they paid attention to the courts, or something that was left after 6 waves of reforms.
The first fruit of the reforming of courts can be observed on the example of the High Anti-Corruption Court. It has a huge level of trust among society and has to provide objective review of high-profile corruption cases but in fact abuses it’s power. The head of the Ukrainian National Association of lawyers Liliya Izovitova declared that in her report. According to her, they have already got complaints pressure from the High Anti-Corruption Court of Ukraine. Judges ignore the principle of competition process, do not provide implementing the provisions of Constitution on the defense of the accused, press on them as well as on their defenders wanting to change preventing measure. Using mottos of struggling against corruption they violate basic principles of human right to a fair trial. Anyway, Ms Izotova was not the only one who declared the idea. Many lawyers that took part in the process of UNAL complained about prejudice against by the board of judges, failure to apply and even blackmail. Anti-Corruption Court is not the only group of people that have to approve their decision with accused act from specialized anti-corruption prosecutors. Court has to be independent body but not a continuation of National Anti-corruption office or specialized anti-corruption prosecutors. If cases continue to be examined in this manner we will face massive appeals against sentences in international instances. 90% of decisions in UNAL can be cancelled as cases are examined with procedural irregularity, irregularity of rights of accused and lawyers. This way justice system becomes repressive system, which is not right. All the other courts have to be reformed the same way.
Reforming of courts the way it is proposed, may in fact deprive court system it’s independence. This risk is caused by the proposition to resolve the High Council of Justice, High Judicial Selection Commission, State Judicial Administration and to create the single monitoring body. It is important to understand that the powers among three bodies have been divided for a reason. In such combination it is more difficult to influence. None of these bodies was able to suspend judge from his position. Anyway there was still a risk of pressure on judges. If only one monitoring body is left it will be at risk of becoming fully dependent on the Authority. Who will appoint members of this body? Who will it report to?
In his own time Saakashvili proposed something similar in Georgia. He created a single control centre -the High Council of Justice. It somehow had a sense as at the beginning only president of the country could apply judges. Otherwise it looks like powers were given to an independent body. But the question concerning influence of authority Council has never been resolved. Still one of the main problems of Georgian judicial reform is that judges are dependent on prosecutors. That is why there is a very low level of acquittals. In such system citizens are almost left without right to be protected.
The same way risks of losing independence create an influx of personnel. Actually, some of the judges, which work in the system, cannot be called independent. In fact they are dependent on specific proposals than authority itself. Judges still have quite a lot of defense mechanisms that can possibly keep them of influence. New personnel together with elimination of some defensive elements can make the judicial system actually "hand-made". Then the question arises is not it an objective of reforming?
Additional chaos to Ukrainian justice can bring the system of precedents, so called case law. If two different systems are mixed we will get hybrid as a result and this know-how is unlikely to give any positive results. They tell that it will help us to avoid situations when different courts make not different decisions on the same case. Firstly, there are not so many similar cases. Secondly, there is a special mechanism for solving such questions. These are competences of the Supreme Court in particular the Grand Chamber, which makes decisions on law enforcement concerning specific categories of cases. It is enough for not having discrepancies in application of the same law while judgement delivery. It is not essential to "break" the system.
All in all it is important to understand that justice is a common mechanism. You cannot reform separately each of it’s elements. Moreover, if we borrow model of justice system from one country, and prosecutor’s office from another, they will not be able to work. I am sure that such reform must be a complex one. We must create common constitutional body to reform justice, which will include members of judiciary, prosecutors, lawyers and the High Council of Justice. Each group of specialists must write draft revisions to their own law and propose President to submit it to the Parliament. Only working together we can make a judicial reform, which will renew balance in system of justice and return trust of citizens to judicial system.