The Parliament’s recent adoption of constitutional amendments to the court system has set long-awaited judicial reform into motion and, if successful, can build badly needed public trust in the judiciary. The majority of participants at the Odessa Regional Judiciary Forum on 24 June 2016 shared this view and discussed the challenges and opportunities that still lie ahead.
Bohdan Nahajlo, DRI representative in Ukraine said: “These changes enable the restoration of public trust, eliminate political influence over judges, and open the door to qualified young people with the appropriate moral and ethical qualities” to become judges. Nahajlo also pointed to civil society’s essential role in keeping the process productive, transparent, and understandable to the population: “Civil society should exercise a responsible control function rather than simply pressuring the selection process and the work of already appointed judges”.
Oleksandr Prokopenko, a judge on the Supreme Court of Ukraine indicated that many judges now fear for their jobs but stressed, “Judiciary reform should not be seen as a chastisement for judges, but as the demand of the times and from society. This is a test judges must take and pass”. While Judge Prokopenko believed the law contains positive aspects consistently supported by the Supreme Court of Ukraine, he worried about the reform of the Supreme Court in the short time of six months.
According to the provisions of the new law on the judiciary, which is awaiting presidential signature, the reformed Supreme Court will start operating upon the appointment of 65 competitively selected judges. This specific procedure, in Judge Prokopenko’s opinion, may suspend or even block the Court’s work and could even lead to a backlog of cases accumulating during the reorganisation period.
Judge Prokopenko finds the utility of establishing such specialised bodies as the anti-corruption court and the intellectual property court to be questionable. “This approach complicates the judiciary system structure and limits the right of access to justice, thus infringing the citizens’ rights”.
Serhiy Petukhov, Deputy Minister of Justice on European Integration, described the reform as “the product of a compromise among political forces enabling the revamping of the system with new people and changing approaches to the understanding of the work of judges in Ukraine”.
Supreme Court’s Reform
Among other topics, forum participants discussed the potential model and composition of the revamped Supreme Court, its structure and specialized functions.
“The Supreme Court is definitely due to be reformed,” said the Deputy Minister Petukov while all the preceding courts will be dissolved once the new Supreme Court starts operating”. In particular, Mr. Petukhov suggested that “a public council on integrity might be an efficient tool to support the transparency of the process and high quality selection of professionals”.
Coordinator of the EU Project ‘Support to the Justice Sector Reform in Ukraine’ Dovydas Vitkauskas noted that the authors of the reform “should first outline the goals and purpose of the Supreme Court and consider parameters and criteria for the selection of Supreme Court judges. Meanwhile, there should be different selection mechanisms for the judges of the first instance courts and the Supreme Court,” Mr. Vitkauskas noted.
During the event, special attention was paid to the challenge of combating corruption in the courts and the establishment of preventive anti-corruption mechanisms.
According to Markiyan Halabala, expert of the civil initiative “Reanimation Package of Reforms” judiciary group, “It is difficult to combat corruption by criminal law methods, because both parties involved in a criminal arrangement are interested in preventing it from being seen”. Halabala considers that “it is necessary to introduce new tools, such as monitoring of the expenses, or wealth, of state officials”— he is convinced that “such a mechanism should play a key in combating corruption”.
The closing part of the Forum focussed on ensuring the independence of the judicial system within the context of the amendments to the Constitution.
According to Andriy Kozlov, DRI Senior Legal Adviser, “the amendments to the Constitution approved on June 2 were a breakthrough, as the judges will now be governed mostly by the ‘corporate standards’ shaped by their peers who will chair the High Council of Justice, the highest judiciary body responsible for a judge’s career and responding to instances of their misconduct”. Moreover, the immunity of judges should be limited to their functions whereas the President and Parliament should enjoy only ceremonial roles in the judges’ appointment procedure.
The Forum: Judicial reform: major step in the right direction. What comes next? Organised by Democracy Reporting International (DRI), OSCE Project Coordinator in Ukraine, Association for the Development of the Judicial Self-Government in Ukraine, and the EU Project ‘Support to the Justice Sector Reform in Ukraine’.
DRI organised the conference within the framework of the Project ‘Going beyond Kyiv: Empowering Regional Actors of Change to Contribute to Key Political Reforms in Ukraine,’ implemented by DRI in cooperation with the Institute of International Relations of the National Taras Shevchenko University of Kyiv. The Project is funded by the German Foreign Office.