Chapter 1

Increasing Independence of Judiciary, Streamlining Judicial Governance and System of Appointment of Judges

In order to strengthen the judiciary with regard to other branches of power, emphasis should be placed on strengthening strategic planning, financial and communication capacities of the judiciary self-governance system. While optimisation of the judiciary governance set-up - by way of the creation of a single judiciary governance body (SJGB) at the top of the policy-making - will commence with immediate steps, the process will inevitably necessitate significant regulatory and institution-building initiatives beyond the short-term perspective. In this respect, dedicated bodies in charge of strategic planning and regulatory development, budget and financial management, quality and performance management, ethics and discipline will be set up both at the strategic and operational levels.

These bodies in order to make sure that the judiciary speaks with one and effective voice when it comes to legislative initiates that directly affect the administration of justice, ensuring adequate provision and distribution of financial resources, and communication with the public. Further steps will be taken towards consolidation of all budgetary and public financial management capacities of the judiciary by way of setting up dedicated finance units to deserve all courts within a certain appellate region. Among other outcomes, transparency in the functioning of the judiciary will be ensured by facilitated access and information given to the public and the media about hearings, meetings, relevant and procedures. These changes should make a sizeable impact on the way the judiciary manages its relationship with other branches of power and the society at large.

Shortcuts
  • ADR
    Alternative dispute resolution
  • AP
    Action Plan
  • APU/PAU
    Presidential Administration of Ukraine
  • ASSETBTC
    Bar Training Centre
  • CB
    Chamber of Bailiffs
  • CC
    Constitutional Court
  • ВНЗ
    Вищі навчальні заклади
  • CCBE
    Council of Bars and Law Societies of Europe
  • CCLAP
    Coordination Centre for Legal Aid Provision
  • CEIS
    Criminal Executive Inspection
  • CEPEJ
    European Commission for the Efficiency of Justice
  • CJ/CoJ
    Council of Judges of Ukraine
  • CJR/JRS
    Council for Justice Reform (or Justice Reform Council)
  • CoE CM
    CoE Committee of Ministers
  • CoE/CoE
    Council of Europe
  • CP
    Council of Prosecutors
  • CPE
    Performance Evaluation Framework
  • CSO
    Civil society organizations
  • DCMIS
    Detainee case management system
  • DFATD
    Department of Foreign Affairs, Trade and Development, Canada
  • DG Just
    Directorate-General for Justice and Consumers of the European Commision
  • DOJ
    United States Department of Justice
  • EaP
    The Eastern Partnership
  • ECHR
    European Convention on Human Rights
  • ECJ
    European Court of Justice
  • ECtHR
    European Court of Human Rights
  • EPP
    Evaluation of Prosecutors’ Performance
  • EU MS
    EU Member State(s)
  • EU
    European Union
  • EUAM
    European Union Advisory Mission for Civilian Security Sector Reform Ukraine
  • FLA
    Free Legal Aid
  • FoI
    Freedom of information
  • GDP
    Gross domestic product
  • GOU/GoU
    Government of Ukraine
  • HAC
    Higher Administrative Court
  • HCCH
    Hague Conference on private international law
  • HCJ
    High Council of Justice of Ukraine
  • HEI
    High educational institutions
  • PCF
    CoE/EU Eastern Partnership Programmatic Co-operation Framework
  • PDP
    Personal data protection
  • PEE
    Performance effectiveness evaluation
  • PEO
    Private enforcement officer
  • PFM
    Public financial management
  • PG
    Prosecutor General
  • PMF
    Performance Management Framework
  • PPO
    Public Prosecutor’s Office
  • PPP
    Public-private partnership
  • PR
    Public Relations
  • QALA
    Quality and Accessible Legal Aid Ukraine Project
  • RBC
    Regional Bar Council
  • RPO
    Regional Prosecutor’s Office
  • PQDCs
    Regional Qualification and Disciplinary Commission
  • SC
    Supreme Court
  • SDP
    Strategic development plans
  • SEP
    Sector expenditure plan
  • HELP
    European Programme on Human Rights Education for Legal Professionals
  • HQC
    High Qualification Commission
  • HQDC
    Higher Qualification and Disciplinary Commission
  • HR
    Human Resources
  • HRTF
    Human Rights Trust Fund
  • HSC
    Higher Specialised Court
  • IMF
    International Monetary Fund
  • IMS
    Information management system
  • IOP
    Interoperability
  • INL
    US Department of State Bureau for International Narcotics and Law Enforcement Affairs
  • IRZ
    German Foundation for International Legal Cooperation
  • IS
    Information system
  • ISD
    Internal Security Department
  • JC
    see CJ
  • JIT
    Joint investigative team
  • JSRS
    Justice Sector Reform Strategy
  • LPO
    Local Prosecutor’s Office
  • LPP
    Legal Professional Privilege
  • M&E;
    Monitoring and evaluation
  • MIS
    Management information system
  • MOE
    Ministry of Education of Ukraine
  • MOF
    Ministry of Finance of Ukraine
  • MOH
    Ministry of Health of Ukraine
  • MoI/MoIA
    Ministry of Internal Affairs of Ukraine
  • MOJ/MoJ
    Ministry of Justice of Ukraine
  • MOR
    Ministry of Regional Development, Construction, and Communal Living of Ukraine
  • MOU
    Memorandum of Understanding
  • MSP
    Ministry of Social Policy of Ukraine
  • MTBF
    Medium-term budgetary framework
  • NACB
    National Anti-Corruption Bureau of Ukraine
  • NALS
    National Academy of Legal Science of Ukraine
  • NAPU
    National Academy of Prosecutors of Ukraine
  • NBC
    National Bar Council
  • NCP
    National Conference of Prosecutors
  • NPM
    National Preventive Mechanism
  • NSJ
    National School of Judges
  • OSCE
    Organization for Security and Co-operation in Europe
  • SGS
    Self-governance system
  • SGUA
    Support Group for Ukraine
  • SIT
    Special investigative techniques
  • SJA
    State Judicial Administration of Ukraine
  • SJGB
    Single Judiciary Governance Body
  • SLA
    Service-level agreements
  • SOP
    Standard operating procedures
  • SPS
    State Penitentiary Service of Ukraine
  • SSU
    Security Service of Ukraine
  • TC
    Training Centre
  • THB
    Trafficking in human beings
  • TOT
    Training of trainers
  • UNBA
    Ukrainian National Bar Association
  • USAID
    United States Agency for International Development
  • USAID FAIR
    The FAIR Justice Project of USAID
  • VET
    Vocational educational training
  • WG
    Working Group
ActionImplementation DeadlinePerformance Criteria
End of 2016End of 2018End of 2020Measures/OutputsResponsible Body / MeansOutcomes
Area of Intervention 1.1
Increased Independence through Balance between Legitimacy and Efficiency in Institutional Set-Up of Judiciary Governance
1.1.1 Increasing balance of duties and powers in judiciary governance1. Reviewed regulatory framework, including constitutional amendments, on judiciary governance institutional set-upParliament, High Council of Justice (HCJ), Singe Judiciary Governance Body (SJGB), Congress of Judges, SC, HSCs,, SJAMOJ/ Decisions, statutes and rules amended- Judicial governance bodies clearly mandated and exercising their task to protect independence of judiciary (structural independence) and
judges (functional independence)- Optimised number of judiciary governance bodies with clear separation of powers of each body andone body at pinnacle of all judiciary policy development and implementation;- Relevance of SJGB analysed in details by merging the powers of HCJ, HCQ and CJ, structure of such constitutional body defined in
accordance with its functions

- Majority of decision-makers in each judiciary governance body elected by their peers (other judges)

- Judiciary governance system granted with clear-cut powers for guaranteeing independence of judges, supporting activities of courts and
judges and representing their interests, including, powers to represent judicial branch as a whole

- More transparent representation quota and procedures for nomination of delegates to Congress of Judges

- Governance system of courts staff in place

- Enhanced requirements, including ethical ones, for members of judiciary governance bodies

- Cross representation of judiciary and other key justice sector stakeholder members (prosecutors, lawyers etc.) in composition of their
respective independent governance bodies

- Safeguards in place against any possibilities of political influence over the procedure of judges’ appointment and dismissal, holding the
judges liable for the legitimate exercise of their functions

- No role of political forces in transfer of judges (reassignments to particular post)

- Transparent internal review system of professional suitability within the judiciary in place, using objective criteria and fair
procedures

- All cases of appointment or transfer to particular judicial post are held upon merits-based criteria and competition basis

- Lifetime appointment to a judicial post is guaranteed with short or no probationary period

2. Reviewed regulatory framework to foster more inclusive representation of judiciary within independent governance bodies of other justice sector institutionsParliament HCJ, HQC, SJA, CJ, , HSCs , MOJ, / Decisions, statutes and rules amended
3. Reviewed regulatory framework and procedures on judicial appointments and dismissals, with stringent limits placed on influence by other branches of power than judiciaryParliament, HCJ, HQC, SJA, CJ, HSCs , MOJ, / Decisions, statutes and rules amended, reports rulebooks, practice guides
Area of Intervention 1.2
Increased Independence and Transparency through Strategic Planning, Regulatory Development, Budget and Financial Management, PR/Communication
1.2.1 Development of strategic planning and regulatory development capacities1. SJGB Strategic Planning and Regulatory Development Committee fully operationalSJGB, (HCJ, HQC, CJ), SJA / Decision, reports- System is in place which associates judiciary expenditure with declared objectives of courts and justice sector

- Mission statements, objectives and performance targets are made an integral part of annual judiciary budgeting process; courts
expenditure plans are linked to commitments of meeting specific objectives and measurable targets

- Internal and external monitoring and evaluation (M&E) mechanisms and review reports attest satisfactory degree of implementation of
Judiciary Chapter of Justice Sector Reform Strategy (JSRS), including adequate degree of budget and financial resources to effectively
promote independence, accountability and competence of courts and judges

- Judiciary provides regular and constructive inputs for major policy and regulatory initiatives related to justice sector reform

- Use of statistics and evidence-based approach in all judiciary policy and regulatory initiatives

- Complex quantitative and qualitative M&E methodologies applied in internal review of implementation of all judiciary policies

2. Dedicated staff assigned at SJGB/SJA to deal with strategic planning and regulatory development issuesSJGB (HCJ, HQC, CJ), SJA / Decisions, contracts, job descriptions, placement plans, trainings
3. Practice guides and training modules on strategic planning and regulatory development developed, disseminated and updated regularlyNSJ, SJGB (HCJ, HQC, CJ), SJA, HSCs / Decisions, , publications and reports
4. Judiciary Annual Reports developed and disseminatedSJGB (HCJ, HQC, CJ), SJA, HSCs / Decisions, reports
1.2.2 Development of budget and financial management capacities1. SJGB Budget and Financial Management Committee fully operationalSJGB (HCJ, HQC, CJ) / Decision, Reports- System is in place which associates judiciary expenditure with declared objectives of courts and justice sector

- Mission statements, objectives and performance targets are made an integral part of annual judiciary budgeting process; courts
expenditure plans are linked to commitments of meeting specific objectives and measurable targets

- Financial planning and funding of courts based on the unified methodology

- Financial owners perform efficiently their duties of financial planning and funding of courts, oversight of effective use of budget funds

- Optimised staffing of courts in place through development and implementation of the workload standards for the judges and court staff;
mechanism of seconding the judges to other courts in place; effective planning and distribution of salary fund among courts on the basis of
the stipulated number of judges and court staff

- Ensured participation of the independent judiciary at all stages of budgeting-

- Unification of courts’ budgeting system (one budget for all courts)

- Program budgeting and performance-based budgeting methodologies with non-financial performance indicators applied in judiciary budget
formulation and implementation processes

- More active use of e-justice tools, information systems, research and analysis and evidence-based approach in justification of budgetary
needs;

- Increase in effectiveness of collection of court fees to be used to budget the courts

- Increased quality of public financial management (PFM) by judiciary, substantial reduction of arrears of courts to utilities, postal,
forensic, legal and other service providers,

- Single public procurement process in place based on harmonised needs assessment of all courts

- Court fee proceeds used increasingly as core sources to cover judiciary budgetary needs and resources;

- increased court fee rates in pecuniary litigation, while retaining the affordability of justice for low-income individuals

2. Reviewed regulatory framework of judiciary participation at all stages of the budget processHCJ, HQC, SJA, MOJ / Reviewed regulatory framework
3. Dedicated staff assigned at SJGB/SJA to deal with budget and financial management issuesSJGB (HCJ, HQC, CJ), SJA / Decisions, contracts, job descriptions, placement plans, trainings
4. Dedicated finance units (under auspices of regional (appellate) courts or SJA regional departments) fully operational, in charge of
formulation of budgetary requests and deserving all courts within appellate region
SJA / Decisions, contracts, job descriptions, placement plans, trainings
5. Practice guides and training modules on budget and financial management developed, disseminated and updated regularlyNSJ, SJA / Decisions, trainings, publications
6. Operational pay terminals in all courtsSJA / Decisions, hardware and software in place, trainings, manuals, review reports
1.2.3 Development of PR/communication capacities1. SGGB Communication Committee fully operationalSJGB (HCJ, HQC, CJ)/ Decision, reports- Internal communication channels among judiciary governance bodies, between judiciary governance bodies and courts, and between
judiciary/courts and judges/staff formalised and used regularly; mechanism for handling regulatory and governance issues among judiciary
governance bodies in place- External communication channels between judiciary/courts and other State/non-State actors in justice sector formalised and used
regularly; consistent response of judiciary governance bodies on behalf of corporation to any attempts at interference with independence,
and promote interests of corporation- Clear, foreseeable and applicable conditions on public access and participation at SJGB hearings, timely prior announcement of meeting
agendas, public nature of SJGB decisions- Career and performance management system of judiciary containing incentives for judges to more frequently enter into contact with public
by way of writing articles, conducting research, visiting educational establishments, and engaging in other socio-educational activities

- User satisfaction surveys used regularly by judiciary governance bodies and courts to measure and improve quality of services

- Regular exchanges with European judiciary governance bodies and other international counterparts

2. Press centre at SJGB fully operationalSJGB (HCJ, HQC, CJ)/ Decisions, contracts, job descriptions, placement plans, trainings
3. Press units (officers) in all appellate regionsSJGB (HCJ, HQC, CJ)/ Decisions, contracts, job descriptions, placement plans, trainings
4. Practice guides and training modules on PR/communication developed, disseminated and updated regularlyNSJ / Decisions, trainings, publications
5. Written rules of procedure drafted and applied by SJGB in all mattersSJGB (HCJ, HQC, CJ)/ Decisions, practice guides
6. Regular study visits of schoolchildren, students and other groups organised at courtsSJGB (HCJ, HQC, CJ), Courts / Decisions, reports
7. Press releases/briefings at courts following examination of high-profile casesSJGB (HCJ, HQC, CJ), Courts / Decisions, reports
8. European and international cooperation network fully operationalSJGB (HCJ, HQC, CJ), Courts / Decisions, MOUs, conferences, traineeships

[1] An institution which is mentioned first with regard to each output (box) is a leading responsible body which will have to define a lost of specific steps in its annual institutional implementation plan of the JSRS Action Plan, in coordination with other responsible bodies mentioned.

[2] Body created as a result of merging of HCJ, HQC and possibly other bodies.

Impact Indicators for Chapters 1-4

  1. User satisfaction surveys (conducted as part of judiciary performance management system, or by external observers) attest increased trust of society in judiciary generally, and its independence and competence in particular (baseline: 2015; suggested 2016 target - increase by 5%; 2018 target - increase by 15%; 2020 target - increase by 25%).
  2. Trial monitoring surveys conducted by external observers attest improvement of affairs in fairness of proceedings in same selected court, appellate region or jurisdiction (baseline: 2015).
  3. 10 % annual decrease in number of structural violations found by ECHR with regard to decisions taken by Ukrainian judiciary (baseline: relevant ECHR judgments pronounced in 2015; only pilot judgments or repetitive cases taken into account).
  4. 5 % annual decrease in number of cases at ECHR establishing divergences in practice of Ukrainian courts in applying national legislation, or establishing breaches of independence or impartiality of tribunal, or fairness of proceedings or defence rights, or ‘reasonable time’ requirement (baseline: relevant ECHR judgments pronounced in 2015).
  5. Improved implementation of general measures in view of any ECHR judgment regarding Ukraine (baseline: number of pending cases before the COE Committee of Ministers (COE CM) where general measures are indicated at end of 2015; suggested 2018 target - total decrease by 15%, decrease of enhanced supervision cases by 25%; 2020 target - total decrease by 25%, decrease of enhanced supervision cases by 35%).
  6. Progress noted by COE CM in implementation of general measures deriving from Volkov v. Ukraine judgment (baseline: 2015).
  7. 20 % annual decrease in findings by COE CM on failure to enforce individual measures in any ECHR judgment regarding Ukraine (baseline: 2015).
  8. Ukraine’s standing in various relevant international indices relating to performance of judiciary improves, including Governance Indicators and Rule of Law Index (World Bank Institute), World Economic Forum (WEF) Global Competitiveness Report, rankings by Freedom House, World Justice Project (Rule of Law Index), Transparency International (CPI etc.), Bertelsmann Stiftung Transformation Index (BTI), WB Doing Business Index (baseline: 2015).
  9. Acknowledgement of Ukraine’s progress in judiciary reform noted in EU reports and various policy dialogue documents, such as Association Agreement and Visa Liberalisation Action Plan implementation reports (baseline: 2015).