1. What Is the Judicial Branch of Government?
In Ukraine, as in any other law-based state, governmental power is distributed among three branches of government: legislative, executive, and judicial. The legislative branch creates laws, the executive branch carries out these laws, while the judicial branch administers justice. A key characteristic of a truly law-based state is full independence of each branch of government from the other two.
2. What Is the Court System?
The court system is comprised of all courts that adjudicate legal cases according to the Constitution and the laws of Ukraine. An important point: courts do not catch criminals—this task falls to law enforcement agencies. Courts hear and decide legal disputes and rule on validity of criminal charges leveled against a person. In addition, courts are an important element of the system of checks and balances among the three branches of government.
3. What Was Wrong with Ukraine’s Judiciary?
Ukraine has inherited its judiciary from a totalitarian state—the Soviet Union—where all branches of government were subordinated to political leadership. Thus, courts were a decorative element of a huge punitive system. They gave a mere appearance of serving justice, while their decisions were in fact often based not just on laws but also on instructions of the ruling party.
After Ukraine had gained independence, the Soviet carryover features of the judiciary were aggravated through new issues:
– manipulation of the courts by politicians;
– a decline in the quality of legal education and thus in the professionalism of judges and attorneys;
– corruption permeating the courts.
As a result, regular people could no longer hope for a fair judicial process. The society began losing its trust in the system as a whole. According to a survey conducted by USAID, in 2015, only 5% of Ukraine’s population trusted Ukrainian courts. It was probably the lowest rate among all the countries of the former Soviet Union. The degradation of the judiciary arguably became one of the key factors that led to the Revolution of Dignity of 2013-2014.
4. Why Do We Need a Reform of the Judiciary?
A reform of the judiciary is necessary in order to build a modern, European-style system of justice: create capable, professional courts; transform the functions of the prosecutorial system; implement an effective system of execution of court decisions; introduce uniform professional and ethical standards for judges, attorneys, and prosecutors; raise the level of legal consciousness among citizens. Only once all of the system components have undergone requisite changes can we speak of having achieved our main goal—ensuring rule of law in the country.
Judicial reform is one of the building blocks that will help establish Ukraine as a European democracy. Its implementation would be impossible without a reform of law enforcement agencies, comprehensive efforts to combat corruption, and broader social and political transformation. These processes are intertwined, and their interplay directly affects society development and economic growth in Ukraine.
5. How Did the Judicial Reform Get Its Start?
The judicial reform got its start as a response to the society’s demand for a justice system that would be independent, fair, and based on European human rights standards. This demand became even more pronounced after the Revolution of Dignity.
In order to ensure professional implementation of the reform, the Judicial Reform Council was created in late 2014. The Council comprised 43 members: experts, legal professionals and scholars, officials, members of parliament, representatives of non-governmental organizations, and judges. The Council developed “The Strategy for Reforming of the Judiciary, the System of Justice, and Ancillary Legal Institutions for 2015-2020.” The document outlines steps necessary for a sweeping transformation of Ukraine’s judiciary. The reform is currently proceeding in accordance with the Strategy.
A meeting of the Judicial Reform Council (Фото: www.pravda.com.ua)
The actual kickoff on the reform came with the adoption of the Law “On Assuring the Right to a Fair Legal Proceeding”, which introduced the first changes to the functioning of Ukraine’s judiciary. The bill was prepared by the Judicial Reform Council, and the Verkhovna Rada (Ukraine’s parliament) voted it through in February of 2015.
6. What Are the Constituent Parts of the Reform?
For the reform to succeed, we need to approach it comprehensively, transforming all three of its constituent parts: laws, institutions, and people.
7. How Are Laws, Institutions, and People Connected?
Legislative changes are the first component of the judicial reform. A lot of norms that are necessary for the reform implementation simply didn’t exist in our legal system, while others required significant adjustment. It is only through adoption of pertinent legislation that the next step becomes possible—transforming judicial institutions themselves, i. e. those institutions where the justice process actually takes place, embodied in the work of judges, attorneys, and prosecutors—people whose professionalism and integrity will determine whether the reform will ultimately be successful.
8. What Have We Seen on the Legislative Front?
The process of reforming pertinent legislation is nearing its end. The majority of changes necessary for the reform have already been adopted by the Verkhovna Rada in the past four years. Let’s look at these laws and the changes introduced by them.
As the first order of business, in February 2015, the Verkhovna Rada adopted the law “On Assuring the Right to a Fair Legal Proceeding”. This law clarified and bolstered the guarantees of judges’ independence and immunity, better delineating their rights and duties. It also made the appointment process of judges more transparent, including the procedures for selecting candidates, holding vetting examinations and qualifying examinations, and training candidates who apply to judicial positions. The law sets out the procedures for appointment of judges for an indefinite tenure and appointing them to specific courts as well as transferring them between courts. All of these procedures must be competitive.
In June 2016, the Verkhovna Rada voted on amendments to the Constitution of Ukraine dealing with administration of justice. The key goal of these changes was to remove political influences on judges and strengthen their autonomy. The amendments also raised requirements and professional standards for judges (the minimal age of candidates has been increased to 30 years, and minimum work experience has been bumped to 5 years), abolished absolute immunity for judges, and provided for a transparent competition process to fill any positions. The constitutional amendments also opened the way for transition to a three-level judiciary system and the creation of the new Supreme Court.
The same month saw the adoption of the new law “On the Judiciary and Status of Judges”. The goal of this law was to flesh out the updated constitutional underpinnings of the system of justice. It jump-started a comprehensive overhaul of the system by removing political influences in the process of selection of judges, stepping up monitoring of the judges’ lifestyle, establishing for the first time a judge’s duty to submit a declaration of family ties and a declaration of integrity, introducing new incentives that ensure judges conduct themselves with probity, and involving the public through the creation of the Public Integrity Council. The law also provided for the establishment of new courts—the High Anti-Corruption Court and the High Court for Intellectual Property.
Two more laws, both dealing with matters of execution of court decisions, were adopted in June 2016: “On Enforcement Proceedings” and “On Agencies and Persons Authorized to Enforce Court Orders and Writs of Execution of Other Institutions”. The key innovation of the new laws is the creation of a mixed system of enforcement that modernizes the State Enforcement Service and introduces the concept of private executors.
In December 2016, the Verkhovna Rada adopted the law “On the High Council of Justice” that set out the status, scope of authority, principles of organization, and transparent operational procedures of this new body of judicial governance. The main goal of the High Council of Justice is to ensure independence of the judicial branch of government and its accountability to society. The Council is responsible for judges’ careers (their appointment and dismissal); it also deals with instances of misconduct on the part of judges and prosecutors.
July 2017 saw the adoption of the law “On the Constitutional Court of Ukraine”. This law determines the principles of organization and operations of the Constitutional Court of Ukraine, the status of the justices of the Constitutional Court, the grounds and procedure for submitting a matter for review by the Court (constitutional appeal), the procedure for hearing a matter and for executing the Court’s decisions. The law also provided for an implementation of the right to a constitutional complaint—an instrument newly introduced into the Ukrainian Constitution that is meant to protect the rights of a person who thinks that the law that was applied in a final court decision concerning a case involving this person runs counter to the Constitution. This constitutional amendment incorporates a recommendation of the Venice Commission to the effect that an individual constitutional complaint may be lodged after all other domestic legal remedies have been exhausted. The procedures for lodging and hearing the complaint are determined by the law.
In October 2017, the Verkhovna Rada adopted the law # 2147-VIII “On Amendments to the Commercial Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine, and Other Legislative Acts”. This bill presented new versions of the Commercial Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, and the Code of Administrative Procedure of Ukraine. This is the most comrehensive overhaul of procedural law Ukraine has seen in the past 26 years. As a result, the “game rules” with respect to legal proceedings have been brought in line with global best practices. Everything has been accelerated and simplified, and there is now an electronic court.
In June 2018, the parliament adopted the law “On the High Anti-Corruption Court” that determines the principles of organization and operations of the High Anti-Corruption Court and lays out special requirements for judges that can serve on this court as well as guarantees of their ability to administer justice.
The next step outlined in the reform strategy concerns reforming the Bar. There is a draft law “On the Bar and the Practice of Law” currently under consideration by the Verkhovna Rada. The bill was prepared in close cooperation with experts of the Council of Europe and representatives of the legal community. It is aimed at securing attorneys’ rights and guarantees for their ability to exercise their duties, establishing high ethical standards and quality requirements for legal representation, ensuring access to the legal profession free from gratuitous limitations or corruption risks, lays out the framework for the development and functioning of the bar’s self-governance based on the principles of self-regulation and decentralization within the unified Ukrainian National Association of Attorneys.
Together with the 2016 amendments to the Constitution of Ukraine that dealt with the justice process, these laws, as developed by the Judicial Reform Council, became the new solid foundation for introducing institutional changes in the justice system (establishment of the new Supreme Court and judicial governance bodies—the High Council of Justice and the High Qualification Commission of Judges of Ukraine,—optimization of the court system and a renewal of the pool of judges, establishment of the High Court for Intellectual Property and the High Anti-Corruption Court.
9. How Did the Institutions Change?
Firstly, the whole structure of the judiciary was optimized. Secondly, there was a reboot of the judicial governance bodies—the High Council of Justice and the High Qualification Commission of Judges of Ukraine. Thirdly, the reform provided for the creation of a new Supreme Court.
Let’s look at these changes in more detail.
9.1. How did the structure of the judiciary change?
Let’s look at how the courts system is arranged now, after the reform, and what it used to look like before the reform.
The court system is similar to a “house” with several “stories”. After the reform, the house has three “stories”. The ground floor is represented by the local courts—the lower-level judicial institutions. These courts look at evidence, hear arguments provided by parties to a case, and pass rulings. If one of the parties is not satisfied with this ruling, the case gets bumped up to the “second story”—the appellate court, or the second-level court. The appellate court reviews the case based on both already available and newly submitted evidence and rules on whether the ruling of the lower court was lawful and justified within the scope of arguments and claims presented during appeal proceedings. If the parties are not satisfied with the ruling of the appellate court, in some cases they can appeal the ruling on the “third story” of the court system—the revision court. In Ukraine, the third-level court is the Supreme Court. Its verdict is final and cannot be appealed in Ukraine.
Before the reform, there were four levels instead of three. There was an intermediate revision level, embodied in High Specialized Courts that duplicated the functions of the Supreme Court. In 2010, during the presidency of Viktor Yanukovych, the role of the Supreme Court was artificially diluted. To wit, a request for revision of a verdict could be submitted to the Supreme Court of Ukraine only through the relevant high specialized court that would rule on whether the case would be admitted for revision by the Supreme Court. Obviously, this state of affairs prevented the Supreme Court from fulfilling its main function—ensuring consistent application of laws by courts—which, on a number of occasions, led to similar cases being decided different.
The reform abolished the unnecessary revision level in the form of high specialized courts. The court system is now sub-divided into three levels, whose functions no longer overlap.
In order for the Ukrainian judiciary to be able to meet modern requirements, the reform provided for the establishment of two new specialized courts.
The first of the newly created courts is the High Court for Intellectual Property. It will hear disputes pertaining to intellectual property, i. e. disputes over rights to inventions, utility models, industrial designs, trademarks, trade names. Around 90 countries around the world have successful experience of resolving such disputes in specialized courts.
In September 2017, the High Qualification Commission announced a competition to fill 21 bench vacancies in the High Court for Intellectual Property, and in the fall of 2018, it launched the competition to fill 9 seats in the Appellate chamber of this court. This competition is still running.
The second newly created court is the High Anti-Corruption Court. It will hold proceedings in criminal cases involving elements of corruption. The competition to fill 39 judge seats in the High Anti-Corruption Court was announced in August 2018. It is worth noting that the process of selection of judges to this court will be conducted with the involvement of the Public Council of International Experts.
Beside the establishment of a three-level court system, the structural changes also include the liquidation of small local courts. Before the reform, there had been 716 of them, which was too many, with the resulting shortage of staff. It wasn’t uncommon for a court to have only three judges on staff, one of whom could be on vacation, another one—on sick leave, while the third one’s term might have expired. As a result, hearings would be delayed, and people would simply have no access to justice. The liquidated courts are now being replaced by the newly established 336 district courts; two or three local courts are being merged into a district court that would have at least 9 to 12 judges on staff. This system has a number of organizational and financial advantages, but the main thing is that it better ensures that everyone’s constitutional right to a fair legal proceeding can be realized.
So what is the result of all these changes? In a nutshell: the system has been optimized. It is now simpler, it will work more efficiently, and its institutional capabilities have been bolstered.
9.2. What has changed in the work of the High Council of Justice and the High Qualification Commission of Judges?
The High Council of Justice and the High Qualification Commission of Judges are judicial governance bodies. The High Council of Justice safeguards the independence of judges and shapes the judicial corps: appoints judges, transfers them to other positions, deals with instances of misconduct and, when necessary, suspends and dismisses them. In turn, the High Qualification Commission of Judges organizes recruiting competitions and qualification exams for judges. The career of every single judge in Ukraine depends on the functioning of these agencies. Thus, it is extremely important to determine who and how should make decisions in judicial governance bodies and to ensure that these decisions are not made under political pressures.
Before the reform, freedom from political pressure was out of the question, for a number of reasons. Let’s start with the fact that members of the High Council of Justice and the High Qualification Commission of Judges could concurrently hold offices in government agencies or appointed or elected offices on the regional or local level. This would inevitably lead to conflicts of interest. Add to this the untransparent procedure of electing candidates to the judicial governance bodies, as well as absence of any competitive recruiting procedures or coherent principles of candidate selection. Moreover, these bodies were dominated by representatives of the executive and the legislative branches of government, which made the judiciary politically dependent.
The reform has outlawed dual office holding for members of the High Council of Justice and the High Qualification Commission of Judges. They cannot hold any appointed or elected offices or be engaged in any other gainful occupation whatsoever. Inefficient and murky procedures have been replaced with an open competition, and the public now has free access to the list of candidates applying to judicial governance bodies. This ensures fulfillment of the main principles that were guiding the selection: transparency, openness, and political neutrality.
Additionally, the High Council of Justice and the High Qualification Commission of Judges are now mostly composed of judges elected by their own colleagues—judges. This is in line with the standards of judicial governance advanced by the Council of Europe.
Thanks to the reform, politicians can no longer influence the process of appointing judges. This keeps the judiciary independent of outside pressures. To a large extent, it was the reboot of the High Council of Justice and the High Qualification Commission of Judges that made possible the creation of the new Supreme Court.
9.3. Why was the new Supreme Court created, and how did it come into being?
The amendments to the Constitution of Ukraine and the Law “On the Judiciary and Status of Judges” did not just lay the foundation for the overhaul of the courts system—they also established the Supreme Court as its key element. The Supreme Court ensures consistency of the judicial practice and is a guarantor of fair judicial process and protection from arbitrariness.
For the first time ever, a open competitive selection process was organized, resulting in the appointment of a new set of judges. The competition was launched in November 2016 and lasted nine months. Applications were accepted not only from judges, but also from members of the bar and legal scholars. Initially, 1436 registrations were received. 846 applicants actually submitted documents necessary to take part in the competition. The selection process resulted in the appointment of 118 new judges.
According to Regis Brillat, Special Advisor to the Council of Europe’s Secretary General for Ukraine, “the candidate evaluation process was conducted in accordance with existing European standards with a strong requirement of knowledge of the European Convention of Human Right as well as of the case law of the European Court of Human Rights.”
The creation of the new Supreme Court was completed on December 15, 2017. On that day, it started it work with 115 new justices installed. That number included not only those who had previously served as judges, but also former attorneys and legal scholars. Later, 3 more justices were appointed.
For the first time in Ukraine’s history, a woman was elected to head the Supreme Court—Justice Valentyna Danishevska.
Currently, a second selection of justices to the Supreme Court is being held, as 78 more seats need to be filled.
10. What do you mean by “changing people”? Will they sack all judges?
Of course, not all of them. But there are already many new faces in the judiciary—and we will see many more of them in the future. Just look at the new Supreme Court. The renewal of the human resources pool is speeding up. The process of selecting judges to fill vacant seats in district and appellate courts is currently in full swing on an unprecedented scale, and it will continue until the reform is completed. Around 2000 seats need to be filled.
The “human component” of the reform is actually the most complicated and least predictable of them all, since it directly depends on the quality of specialized education and the level of legal consciousness in the society, which might take decades to change.
What we can change now is the scope of rights and duties of judges and the standards they must meet. These changes have already been implemented.
The reform has raised both the age limit and professional requirements that a judge must fulfill. Before the reform, one could become a judge at the age of 25, barely out of college. People’s fate could basically be placed in the hands of a person with no life experience or professional experience. Currently, judges have to be between 30 and 65 years old and have at least 5 years of experience in the legal profession.
Judges have also been stripped of full immunity. Previously, judges used to have immunity which means they could not be taken into custody or arrested even if they committed a crime. Only the Verkhovna Rada had the authority to lift a judge’s immunity. Nowadays, if a judge commits a class D felony or a more serious offense, they can be apprehended immediately—no permission on the part of Members of Parliament is necessary. In other cases, a judge can be taken into custody or arrested with the permission of the High Council of Justice. However, judges cannot be prosecuted for their legal stances as expressed in their rulings.
Judges are now “presumed guilty” when it comes to their net worth. Judges have to provide proof that their assets have been earned or acquired legally and to submit three electronic declarations yearly: a declaration of assets, a declaration of integrity, and a declaration of family ties. If a judge cannot corroborate the legality of their sources of income, they will, at the very least, lose their job, and possibly face criminal charges.
Judges are subject to qualification evaluations that test their competencies, professional ethics, and integrity. Every single judge in Ukraine must pass this evaluation that consists of an anonymous written exam, a practical assignment, a psychological test, a performance review, and an interview with members of the High Qualification Commission of Judges. A refusal to pass the evaluation or cheating on the asset declaration results in removal from office.
At the moment, the “human resources” component of the reform is still in progress. This component is crucial for the ground-up renewal of the judiciary. It is a task that will remain on the agenda of Ukrainian society even after the legislative and institutional components of the reform are completed in 2020.
11. OK, but what use is this to me?
The overhaul of the judiciary is meant to ensure your right to a fair legal proceeding, the so-called due process. Due process not only safeguards your rights and freedoms, but also promotes prosperity—through protection of property rights and improving the country’s investment climate.
But you don’t need to be an expert in legal technicalities to see that access to justice has been simplified, and legal proceedings now happen faster and in a more convenient fashion. For example, the judiciary will soon go digital, with the launch of the e-court—a convenient online platform that offers legal services. Through this web service you will be able to follow the status of your case online, have court filings sent directly to your smartphone, or check the docket. Though this is just one of the changes to the better that have been introduced, it is another step toward improving the functioning of the court as a service.
12. I’ve heard the reform is completed. Is it true?
No, the idea that reforms can be enacted quickly is a myth. According to the strategy of the judicial reform, the legislative and institutional components will continue to be implemented until 2020. This does not mean, however, that in 2020 we will suddenly wake up in an ideal country where rule of law carries the day. This is the timeline of creating modern European tools of administering justice. But the end result depends on those who will be employing these tools. In other words, it depends on how quickly the judiciary will see the influx of the new generation of legal professionals, or how fast the legal consciousness of Ukrainian citizens will grow—e. g., their being able to accept a fair ruling that is not in their favor.
13. What are the most common myths about the judicial reform?
Myth # 1. The judicial reform does not have a strategy and is being enacted haphazardly.
In actuality, it is impossible to reform such a mammoth system without a clear plan. That is why, on May 20, 2015, President Petro Poroshenko has issued a decree approving “The Strategy for Reforming of the Judiciary, the System of Justice, and Ancillary Legal Institutions for 2015-2020”—the blueprint that the reform is now following.
Myth # 2. It would only be a real reform if we sacked all the “old” judges and installed “new” ones.
Before the reform, Ukraine’s judiciary consisted of around 8,000 judges. Among them, there were a lot of experienced professionals who have honestly exercised their duties no matter the circumstances. So why would they be fired? Besides, even if you fire all “old” judges, where do you find “new” ones? The answer is obvious: nowhere, because cleansing the judiciary, along with the whole reform process, is something that happens gradually, in an evolutionary manner.
According to Gianni Buquicchio, President of the Venice Commission, “It is hard to make a revolution in legislation. In the two years that the judicial reform has been in progress, you have managed to take a huge step forward. This has all been accomplished thanks to the President, the Parliament and other government agencies. The legislative basis for change has been created, but in order for the Ukrainian society to get what it deserves, you need to see changes in the mindset of both the public and the judges. I don’t want fast changes. The society needs to be prepared for changes.”
Since the time that qualification evaluations started, 2,000 people have left the system. This means that the remaining judges are dealing with increased workloads. The judiciary cannot just stop working, so we need to be patient. After all, calling for “sacking everybody” is nothing more than populism.
Myth # 3. The reform is being done only in order for the President to “subjugate” courts to his authority.
This is a stereotype that simply won’t go away despite the fact that all the changes introduced in the recent years make it impossible for politicians to exert pressure on the judiciary. Besides, a fully “subjugated” judiciary already existed under the Yanukovych regime. Why start a reform when everything had already been arranged? One could simply keep things as they were.
Myth # 4. The judicial reform is a cure-all for all the country’s afflictions.
Unfortunately, this is not the case. The judiciary does not exist in a vacuum. It is a part of a single state organism. If the issues plaguing the rest of the “body” (other spheres of state governance and society) are not addressed, afflictions will persist.
14. How will I know if the judicial reform is successful?
You don’t need to wait for some special announcements, as real changes for the better are always apparent. There will be more and more news stories about fair rulings in high-profile cases that were made without any political influence; Ukraine will start getting better marks in international legal ratings; investors’ confidence will grow, so the economy will grow too; court services will become more efficient and, in due course, will probably earn the title of “user-friendly”. This mosaic will merge into a new perception of Ukrainian judiciary as a system that ensures that justice is served.
15. Can the reform be stalled?
There is a lot of opposition to the reform on the part of those who are used to exploiting the court as a tool of their own enrichment or want to earn some political points on this. Similarly to other structural transformations launched after the Revolution of Dignity, the progress of the judicial reform has been everything but easy. Only a responsible civil society can ensure that this transformation becomes irreversible.
16. Who supports the judicial reform?
In answering this question, it is important not to confuse trust in existing courts with support for the judicial reform. These are totally different things. Almost all polls show that trust in the courts is very low. And this is a logical result of the neglect suffered by the judiciary during all the years of Ukraine’s independence.
However, one should not confuse societal discontent with how things stood before the reform and expectations of how they will stand once it is completed. As the reform progresses, society’s trust in the judiciary is growing. According to the latest poll conducted as part of a USAID program, the level of trust has grown more than fourfold: from 5% in 2015 to 20% today.
If we address people’s expectations, they are completely in line with the changes that the reform is supposed to bring about. They are all about ensuring the right to a fair legal proceeding, honest evaluation of the judges’ qualifications, a selection process that is transparent and open to the public, faster progress of court cases, impossibility of wrongful or politically motivated rulings and verdicts. Looking at it this way, we can see a much higher level of support for the reform than the surveys might show.
The reform also has the support of Ukraine’s international partners: the Council of Europe, the European Commission for Democracy through Law, the Organization for Security and Co-operation in Europe, the EU Delegation to Ukraine, embassies of the G-7 countries, representative offices of the IMF and the World Bank in Ukraine.
17. How can I help move the reform forward?
It’s very easy: just learn more about the reform and help others learn about it. This article as well as other articles on this website are meant to help you do just that. Spread the word, because the success of the judicial reform is in the interests of us all.