The amendments were positively evaluated by both the Venice Commission and the Council of Europe, laying the groundwork for comprehensive judicial reform.
These amendments represent merely a first step though, and to truly revolutionize Ukraine’s graft-ridden judiciary it is required to pass detailed implementing legislation, first piece of which – Law 4734 “On the Judiciary and the Status of Judges” – was adopted simultaneously with Constitutional amendments.
Among the positive changes provided for by the passed legislation, judicial expert at the Centre for Policy and Legal Reform Roman Kuybida, mentions:
1. Simplification of the administrative structure of the court system: transition from the current four levels of courts to a three-tier judicial system composed of first instance courts, courts of appeal and a newly established Supreme Court. Judges of the latter shall be selected on a competitive basis. Moreover, once the system is simplified, the cases will be considered more quickly.
2. Bringing of fresh blood into the judiciary by opening competition for all positions in the new Supreme Court to lawyers without previous judicial experience.
3. Increasing salaries of the judges to reduce the incentive for corruption and attract lawyers from outside the current judicial system.
4. Dismissing of the judges unable to pass a competency and ethics test or unable to prove the legitimate origin of their assets.
5. Having the judges declare any family members holding high-ranking civil service positions and/or employed by courts, public defenders or prosecutors’ offices to minimize conflicts of interest.
6. Eliminating of judges’ immunity from criminal prosecution for corruption and any other grave crimes.
7. De-monopolization of the field of execution of court rulings by allowing private enforcers to work alongside the governmental public enforcement service.
8. Reduction of political influence on the judges by barring the parliament and the president from handling the issues of judges’ careers.
However, at the same time the adopted legislation contains numerous shortcomings. Civil society activists therefore believe thatthe Rada must quickly amend law 4734 to correct a number of problems.
First, law 4734 did not allocate sufficient power to the new Public Council for Professional Integrity. The Council is designed to allow legal experts outside judiciary andcivil society to evaluate the ethics of judges on an ongoing basis by gathering information about judges’ professional integrity submitting these findings and the council’s opinion to the High Qualification Commission of Judges.
Unfortunately however, law 4734 only allocates the Public Council an advisory role, leaving the HQCJ without any legal obligation to the findings and recommendations of outside experts.
Given that the HQCJ recently re-qualified eight out of 10 judges, whom members the new National Anti-Corruption Bureau of Ukraine reasonably suspect of corruption, activists fear the Public Council’sl ack of power creates an open loophole for the old guard to protect corrupt judges.
In addition, Law 4734 also created no mechanism for ensuring that the selection process for appointing judges to the new Supreme Court is impartial and trusted by the public.
The HQCJ and the High Council of Justice – the bodies responsible for selection of potential Supreme Court appointees – contain no representatives of the public while also continuing to retain two members subject to lustration. Law 4734 must therefore be amended to providethe Public Council with a legally binding role into both the evaluation of existing judges’ ethics as well as input into the selection of the Supreme Court and local judges.
Besides, law 4734 permits the heads and the deputy heads of courts appointed during the presidency of former President Victor Yanukovych to keep their offices for another six years.
Although the Constitution does not provide the president with decision-making power over the selection of court heads and deputies, the bill allows the president to sign certificates either directly or by proxy to fillthese positions. This creates a risk that the old system of politicalinterference in the management of the court system will be preserved. Eliminating this risk requires amending law 4734 to remove any presidentialpower or influence over court heads and deputy heads.
Finally, to ensure irreversibility of punishment of grand corruption crimes it is important to establish the Specialized Anti-Corruption Court, creation of which is not properly addressed by the law.
According to Anastasiya Krasnosilska, Anti-Corruption Action Center advocacy manager, there are high chances that courts will fail to punish top officials following NABU investigations.
If new anti-corruption institutions are thus left fruitless, political leadership will receive much wanted pretext to intervene or even close down NABU and Specialized Anti-Corruption Prosecution.
Moreover, the most important guarantee for fair trial in grand corruption cases is political independence of anti-corruption judges, which can be achieved through transparent selection process, conducted by a special independent panel with members, nominated by international partners of Ukraine, having the right of bloc voting.
Although amending 4734 is critical, it is just a first step. After the Rada amends it, additional implementing legislation remains needed to ensure the following changes:
– Allow attorneys to choose attorneys’ associations at their own discretion so as to de-monopolize attorneys’ self-government.
– Empower Ukraine’s citizens by significantly limiting the category of cases requiring an attorney act as a representative.
– Regulate the issues of legal education and access to the legal profession in line with the European standards.
– Determine the procedure of competitive selection of the prosecutor general and the judges of the Constitutional Court, and change the procedure of consideration of the constitutional complaints.
– Introduce an effective model of the trial jury in criminal cases and introduce this institute in commercial cases.
Clearly this is an ambitious agenda, and even implementation of the adopted legislation can meet a number of obstacles.
Activists expect significant resistance to these changes within the judiciary itself, which two years after Euromaidan contains small number of judges untainted by corruption.
Despite the scope of the challenge though, civil society reformers remain committed to creating a fair and independent judiciary – Ukraine’s European ambitions require nothing less.
Olena
Halushka is the international relations manager at the Reanimation Package of
Reforms, and can be followed on Twitter at @OlenaHalushka
