On May 31, 2010, Ukraine’s President Viktor Yanukovych submitted a Bill on the Judicial System and Status of judges (Bill 6450) to the Verkhovna Rada of Ukraine (Ukrainian Parliament). The new bill resembles numerous bills on the judicial system and status of judges, introduced by ex-President Viktor Yushchenko. Specifically, it requires specialized training for a person to be appointed a judge; competition for a position of a judge held by the permanent Supreme Qualification Commission of Judges (SQCJ); clear grounds to institute disciplinary provisions against a judge; declaration of incomes and expenses of a judge and their family members; a specified salary of a judge; ensuring independence of courts of appeals and dissolving courts martial etc. The new bill however threatens to undermine judges’ independence since it creates possibilities for protecting some of them, while persecuting others.
Promotion not preceded by competition
The bill does not establish criteria for appointing judges to supreme courts except for a certain number of years of experience as a judge and provisions stating that an interview shall be conducted by SQCJ. Professional experience and the number of years as a judge should be seen as an additional factor ensuring independence of judges (p. 4.1 of the European Charter on the Statute of Judges). Unfortunately, that also means that nepotism might remain the major driving factor behind judges’ career.
The system of special training of future judges
Future judges are supposed to be trained at a specialized legal educational establishment first (the Professional Judges Training Institute in Odessa and the Professional Judges Training Department of the Yaroslav Mudryi National Legal Academy in Kharkiv), followed by a course at the National School of Judges of Ukraine supervised by SQCJ.
However, European practices suggest that special training of judges cannot be conducted by educational establishments supervised by the Ministry of Education and Sciences, which designates their accreditation. An independent establishment controlled by judges is to be entrusted with the task of training future judges.
The bill fails to meet yet another requirement – persons taking part in the training of judges cannot take part in their further assessment. In fact, specialized establishments, supervised by the Ministry of Education of Ukraine, will be responsible for selection of candidates and their assessment.
Obviously, the National School of Judges of Ukraine meets said criteria while specialized legal universities don’t.
Powers of the Supreme Qualification Commission of Judges
Specified new powers of the Supreme Qualification Commission of Judges raise doubt about its ability to ensure their effective exercising, even if it is not a public body but an established one.
According to the bill, SQCJ (the number of its members should be reduced from 15 to 11) shall be entrusted not only with the issues of selecting and promoting judges, but also their disciplinary responsibility. Viktor Yushchenko suggested in his bill establishing a separate Disciplinary Commission of Judges and Court Inspectors Service. Court inspectors were supposed to check complaints and press charges against a judge accused of committing a disciplinary offence, while the Disciplinary Commission of Judges had to question the judge or their representative and decide whether to institute disciplinary proceedings against said judge. However, according to the new bill, SQCJ members will have a right to launch inquiries into complaints (with the assistance of disciplinary inspectors), press charges and prosecute judges. It might result in excessive number of cases SQCJ will have to investigate while eliminating a competitive element of the disciplinary procedure. As a result, with certain manipulations while selecting SQCJ members, SQCJ could be used to appoint the ‘right’ judges and persecute the ‘inconvenient’ ones.
This inquisitorial mechanism that lacks any competition completes the existing model of the highly politicized Supreme Council of Justice backed by the Law introducing amendments to legislation of Ukraine to prevent abuse of the right of appeal as of May 13, 2010. Interestingly, some of the grounds to fire a judge over breaking the oath, stipulated in the Law on the Supreme Council of Justice as of May 13, 2010 currently in force, also cover the grounds for pressing disciplinary charges, provided for in the bill, and in some cases are even broader. It means reprimand is due for some serious transgressions, while some petty ones require dismissal of a judge. The bill does not present relevant amendments to the Law on the Supreme Council of Justice.
The Supreme Council of Justice receiving more powers
The bill proposes to grant the Supreme Council of Justice the right to appoint and dismiss chairs and deputy chairs of courts. It is a rather questionable move since such a power is not stipulated in the Constitution of Ukraine. According to European standards, at least half of the members of such a body should be judges elected by other judges (p. 1.3, European Charter on the Statute of Judges). According to the bill, the President, the Verkhovna Rada of Ukraine (Parliament), a Congress of representatives of legal universities and establishments, a Congress of lawyers, a national conference of prosecutors shall appoint a certain number of members of the Supreme Council of Justice that are judges. But it still does not meet the requirement that judges, who have to make up at least a half of the Supreme Council of Justice, shall be elected by judges. Obviously, this blunder cannot be corrected without introducing amendments to the Constitution of Ukraine first, but it is also unreasonable to grant the Supreme Council of Justice more powers without making the required changes in the Constitution.
The right to appoint and dismiss court chairs holds certain attraction for political forces since, even with their powers limited, court chairs remain in position to influence decisions of judges. For example, the issues of vacations and accommodation of judges have not been passed to a meeting of judges, thus remaining in the competence of court chairs. Chairs of supreme courts will retain certain procedural rights as well, including the right to change the jurisdiction of criminal cases.
The language of judicial proceedings
According to the Constitutional Court of Ukraine, the status of a language as the state language means that it becomes a mandatory communication means for state authorities on the entire territory of Ukraine. The use of other languages alongside the state language is acceptable only in cases of the local executive authorities, Crimea authorities and local self-government bodies carrying out their duties under the law of Ukraine, which however does not include judges (Decision in the case on the use of the Ukrainian language, as of December 14, 1999, p. 10/99).
It means courts have to use the state language only (Ukrainian). However, Article 12 of the new bill enables a court, located in a region densely populated with representatives of other nationalities besides Ukrainians, to use other languages of these national minorities. Litigants have a right to request a court to provide that all legal procedures are carried out in their language.
Amendments introduced to procedural legislation
Among the achievements of the Bill on the Judicial System and Status of Judges are amendments to all procedural codes. However, some amendments to procedural legislation might cause negative consequences.
Under the bill, the Supreme Court of Ukraine will be able to revise decisions of courts of appeals in two cases: 1) discrepancies in the application of the same provisions of substantive law by courts of appeals, which resulted in contrary decisions in similar legal relationship; 2) if an international judicial institution, recognized by Ukraine, finds out that Ukraine has broken international obligations while hearing a case in court.
As a result, it will make it impossible to eliminate discrepancies in the application of provisions of procedural law, in particular concerning jurisdiction, by supreme courts. Moreover, the bill entrusts supreme courts with the right to pass cases to the Supreme Court of Ukraine. Obviously, supreme courts will not be too eager to pass cases, heard by their colleagues, to the Supreme Court of Ukraine for revision, even if there are solid grounds for it. It seems the principle of mutual support and corporate solidarity will be the most likely solution here.
Conclusions
Certain elements, introduced to the Bill on the Judicial System and Status of Judges, can ensure or even increase influence of some political forces on the public judicial system, while a real goal of the judicial reform should be ensuring the right of a person to a fair trial. The reform is called to achieve the following aims: creating effective mechanisms to ensure independence, high professional level and responsibility of Ukrainian judges; increasing powers of judicial self-government, decreasing the role of chairs of courts in judicial administration at the same time; making a general jurisdiction court system more balanced and comprehensible in terms of specialization and trial stages; ensuring efficient and fair legal procedures.
If the Bill on the Judicial System and Status of Judges, introduced by President Viktor Yanukovych, passes the parliament in the first reading, it should also include provisions on a transparent competition for positions in supreme courts and clear candidate selection criteria. Educational establishments and institutions supervised by the Ministry of Education and Sciences of Ukraine cannot be a part of judges special training system. A new Disciplinary Commission of Judges has to be established alongside the Court Inspectors Service to investigate disciplinary cases of judges of the local courts and courts of appeal and ensure competitive disciplinary procedures. Until the Supreme Council of Justice meets all European standards in the sphere of appointing court chairs, deputy court chairs shall be a part of judicial self-government, while court chairs shall act in a representative capacity and supervise the court apparatus. The Supreme Council of Justice should retain its right to react to different applications of provisions of procedural law by supreme courts and accept requests concerning revision of cases based on clear criteria.
On November 19, the Open Society Foundation organized the roundtable ‘Results of work of the Verkhovna Rada of Ukraine in 2010 – political forces fulfilling their pledges’ in Khmelnytsky with the support of the Khmelnytsky outlet of the Committee of Voters of Ukraine. ...
On November 4, Open Society Foundation with the support of the Cherkasy outlet of the Committee of Voters of Ukraine organized the roundtable ‘The Verkhovna Rada of Ukraine after the Constitutional amendments: what to expect’. ...
On October 7, the Vinnytsia Press Club hosted the roundtable ‘Results of work of the Ukrainian parliament in the first half of 2010. The political portrait of Vinnytsia oblast before the local elections’, organized by Open Society Foundation with the support of the Vinnytsia outlet of the Committee of Voters of Ukraine. ...
