Together with the ending of the formation of a new political power in August this year is approaching the revision of judicial reform announced by the President of Ukraine, issue extremely important and urgent, given the state in which the judiciary is the last few years.

Like the vast majority of reforms over the last 5 years, judicial reform does not always look convincingly “on paper”, and at times worse – in practice. Its main achievements include the introduction in 2016 of amendments to the Constitution of Ukraine regarding justice, and the adoption of a package of implementation laws.

With these changes, finally, at the constitutional level, the principles of the de-politicization of the judiciary were enshrined, and the opportunity was created to create an independent body in the justice system responsible for the selection, career and responsibility of judges, the High Council of Justice. In addition, the provisions of three codes – the Civil Procedure, the Commercial Procedure and the Code of Administrative Procedure – were also unified. However, this work can hardly be considered successful or completed today, given the incompleteness of the implementation processes of all the institutes envisaged by these legislative acts, first of all, e-court. From a practical point of view, the emergence of a new institute in Ukraine’s legal system – private contractors is also worth noting.

However, the assessment of the 5-year activity of all institutions involved in the latest judicial reform is eloquently reflected in the results of sociological surveys of citizens – 78.3% of the population do not trust the courts. Although the level of confidence in the judiciary has always been consistently not high, the current state of affairs is dramatically worse. The judiciary has never faced more than 40% of judges lacking the authority to administer justice (the figure for 2017; today it is 33% due to the reduction of the staffing of judges; the actual number of judges – 4,679 remains unchanged over the last 2.5 years). More than 20 courts across the country have never stopped working unplanned, depriving access to justice of about 250,000 people. Similarly, dozens of courts have never continued to function for more than 2 years, with only one working judge in the state, worsening the access to justice situation many times over. For today, 22% of courts have fewer than 60% of justice practitioners.

1. The consequences of this are:

a) implementation in the judicial system of legal instruments incompatible with the guarantees of the independence of judges, starting from the establishment in 2014 of the Temporary Special Commission at the High Council of Justice and ending with the introduction in 2016 of the Institute of Judicial Qualifications in its final form, and

b) the reluctance of the authorities to transparently and objectively implement the provisions of the laws implementing these institutions.

It will not be something new to say that, in accordance with the guarantees of the independence of judges, the evaluation procedure alone cannot entail the release of a judge in the event that he or she fails the appropriate examination. In international practice, evaluation procedures are first and foremost applied in the training / refresher of judges, which international institutions have drawn attention to when drafting and adopting relevant laws. Although such methods as extreme measures in exceptional cases may be admissible, it should be remembered that after the formation of the Verkhovna Rada of Ukraine in 2015, it was sufficient for the political power to promptly build legal mechanisms of self-regulation of the judiciary through quality work at that time of the High Council of Justice, as it should in a democratic state of law.

However, taking into account the activity of the High Qualifications Commission of Judges of Ukraine and the High Council of Justice, in particular in the aspect of their interaction with the Public Council of Integrity, as well as the performance by the President of Ukraine of a ceremonial function for the appointment of judges, it is quite clear that the political will for the declared judicial renewal, simply, it wasn’t.

If we talk about the intermediate results of the qualification evaluation process, as of April 2019, more than 2409 judges had passed the qualification evaluation procedure, only 156 of them failed the eligibility test and only 15 were dismissed. Thus, in the end, Ukraine, among other things, spent 4 years of effort (including preparatory actions) on a process that was only halfway completed and which resulted in less than 1% efficiency. To count up to this percentage of efficiency the number of judges who, on their own initiative, left the judge’s bench will obviously be incorrect.

The new political authority automatically becomes a hostage to this process as it has to make a political decision on what to do next: half of the judges have not yet passed a qualification assessment, and there is no confidence in the interim results.

Between the choice of two options to continue / restart or cancel this institute, the second option seems more weighted.

Considering that a qualification is a test of the judge by the criteria (competence, professional ethics and integrity), and that the dismissal of the judge from the examination (competence test) is incompatible with the guarantees of independence of judges, the components of this legal institute should be divided some of which will be transferred to other institutes and the other to be modified. In particular, the competence should be supported by continuous training of the judge while in office. Failure or unethical conduct by a judge will result in disciplinary action against him / her.

In turn, the issue of the integrity of judges, as well as all other authorities, should be fully in the control of anti-corruption bodies. In this respect, the institution of an annual full review of the declaration of all judges, which would result in a consideration of the inconsistency of the income declared by the judge to his or her lifestyle by the High Judicial Council with the possible further dismissal of such judge, looks significantly more efficient and less resource-intensive.

Such an approach would allow the High Qualifications Commission of Judges to be dismissed from their non-peculiar function and to focus solely on their primary task – the selection of judges, which, inter alia, has not been held in local courts since 2016.

2. Today, with the exception of certain legislative steps of an organizational nature that still need to be done, the state has a sufficient amount of instruments, recognized by the Constitution and laws of Ukraine, for building an independent judiciary. Chief among these instruments is the High Council of Justice. It is the body that, in accordance with European standards, should be responsible for the emergence of a virtuous professional judicial corps, as well as for influencing the main issues of the judicial system.

Based on the political statements of the new government, measures will be implemented in the near future to re-elect the High Council of Justice in a way that would be credible to such process. Such step is certainly necessary and creates the opportunity for a new qualitative functioning of this body to begin. Despite the fact that the relevant legislation for the functioning of the High Council of Justice was adopted in 2016, as of today it cannot be considered that its composition is not under political influence and that it does not affect the results of its activities. Initially, in accordance with the Transitional Provisions of the Constitution of Ukraine, the High Council of Justice continued to serve in the previous composition for 2 years, and subsequently elected some new members in a way that is not credible either. Thus, the names of all 4 winners of the secret ballot of the Congress of Judges of Ukraine, as “candidates agreed with the Bank”, became known in general the day before such a congress. In turn, one of the two members of the High Council of Justice was selected from the All-Ukrainian Conference of Prosecutors by a person who has provided legal services to the current Prosecutor General of Ukraine in the past and is the determining criterion).

With regard to the results of the activities of the High Council of Justice, it is sufficient to state that no significant measures have been taken by the above-mentioned body to date in its institutional formation (except those provided by the Law). However, the situation of the High Council of Justice is more than required. Thus, within the disciplinary function, from 50 to 80 complaints against judges (ie more than 1000 complaints a month) are received daily. During the existence of the High Council of Justice, it has received more than 40,000 complaints. Considering that such a large number of complaints are processed without the usage of modern standardized business processes, and also in the absence of a methodology for applying disciplinary penalties to judges (the need for which was emphasized by European experts in 2017), the confidence in the implementation of the disciplinary function of the High Council of Justice may be a priori. {After publication this Article High Council of Justice published information the Business Process Optimization Project had been completed}.

The following example generally indicates that the existing members of the High Council of Justice lack an understanding of their role and responsibility for the state of affairs in the judicial system. Thus, in accordance with the requirements of the law, the High Council of Justice prepares an annual Report on the state of independence of judges, which reveals the most significant developments in the judicial system and the response measures taken. As of 2019, two such reports were published – in 2017 and in 2018. And if the 2017 report even referred to the term “trust in the judiciary” (usually when citing legislation or documents of international institutions), then the 2018 report does not use it at all. In the view of the High Council of Justice, there are no problems with the issue of confidence in the courts in Ukraine, or the issue is not within their competence, or is not related to the independence of judges.

In the light of the above, the re-election of the High Council of Justice is the first necessary step in the matter of restarting its activities.

Considering that the re-election of members of the High Council of Justice alone cannot guarantee its proper fulfillment of its tasks, legislative and organizational measures aimed at its institutional formation and development should be taken.

One of the priority tasks in this respect should be to optimize and standardize the procedures for processing by the Secretariat of the High Council of Justice of all documents under consideration. To implement this, it is necessary to change the “feudal model” of the functioning of the High Council of Justice to a more modern one.

Thus, today, according to law, the consideration of complaints against judges begins with their distribution among members of the High Council of Justice. Subsequently, the case of processing the individual complaint, as well as the assessment of the issues raised in it, are still directly dependent on the subjective opinion of the member to whom the complaint was distributed at the stage of verification of the facts stated. In the future, all of these aspects directly affect the final decision on the complaint and, accordingly, are a very convenient tool for making the right decisions when needed.

A much more effective model is the one under which all issues before its submission to the High Council of Justice (or its bodies) should be handled by the staff of the Secretariat in accordance with approved procedures and without any impact on the process by members of the High Council of Justice. Responsibility for the proper quality of this process, in accordance with the principles of civil service organization, should rest with the heads of the relevant structural units. This approach will ensure promptness and consistency in the work of the High Council of Justice. The function of the members of the High Council of Justice will thus be reduced to the formation of disciplinary practice.

Although, according to the law inspectors of the High Council of Justice are currently appointed and dismissed by the relevant member of High Council of Justice. Undoubtedly such situation is extremely destructive, since the interests of a particular member of the High Council of Justice stand above the interests of the whole body. The implementation of these provisions of the law will constantly lead to staff turnover, which will make impossible forming the institutional memory of the Secretariat of the High Council of Justice, which is the basis for the activity of any body or institution. Therefore, the Inspectorate of the High Council of Justice should be formed according to the principles of the civil service. Accordingly, inspectors must have the status of civil servant and not be dependent on the change of members of the High Council of Justice.

The second necessary step in the exercise of the disciplinary function should be an implementation of a methodology for applying disciplinary sanctions to judges. Only this approach will ensure transparency in the implementation of the disciplinary function. The precedent nature of the function performed will provide the necessary foreseeability, a common understanding of the permanent cause and effect relationships between actions and sanctions, which will protect judges from possible acts of arbitrariness on the part of the High Council of Justice or its members.

Similar approaches to the organization of work (built on standardized business processes and techniques) should be implemented during the exercise by the High Council of Justice of the function of forming a virtuous judicial corps. This process should, among other things, be maximized by public scrutiny. Therefore, there is a need for measures to be taken regarding the institutional development of the Public Council of Integrity and for the definition of clear algorithms for its interaction with the High Council of Justice.

In order to increase the level of confidence in the activities of the High Council of Justice, it is advisable to change the way in which it is made. The secret ballot should be replaced by an open ballot, which should take place immediately after the discussion of a particular issue is completed, and the decisions themselves must be duly substantiated for each of the aspects considered. The level of trust in the newly created Supreme Court, which was formed by systematically ignoring the negative findings of the Public Council of Integrity by the High Qualifications Commission of Judges and the High Council of Justice, is the best argument.

Consideration should also be given to introducing into the legislation of a new legal institute the recall of a member of the High Council of Justice by the entity by which he or she has been appointed (elected). The grounds for applying such institute may be a systematic or gross violation of the law by such member.

Finally, the remuneration of the members of the High Council of Justice should be substantially reduced. Today it is 60 times higher than the minimum wage in the country and is 10 thousand dollars a month. The guarantee of the independent and impartial activity of the members of the High Council of Justice should, first of all, be ensured by effective control by society and anti-corruption bodies.

3. In the modern technological world, the judiciary, like the state as a whole, must strive to ensure that most of its services are provided electronically. The current procedural codes provide the functioning of the Single Judicial Information and Telecommunication System with a fairly broad functional range of actions. The development and full implementation of this System, as well as the Unified State Register of Enforcement Documents, should become one of the main areas for the development of the judicial power at all.

In this aspect, it is essential to reform individual litigation institutions to enhance the use of modern electronic technologies. For example, in cooperation with the International Monetary Fund, one of the tasks was to introduce an electronic court order, which is successfully operating in many European countries. Given that there is already an institution of criminal proceedings in the current litigation, the issue of its modernization will not require fundamental action, and at the same time its functioning will not only solve one of the chronic problems of the judicial system – excessive burden on judges, but also significantly improve the economic function of the state. . The essence of this reform lies in the creation of a special court, which, within the entire state, would, under the simplified procedure, issue an enforcement document in indisputable cases without considering the merits of the case. It is sufficient to apply to such a court to register with the appropriate electronic system and to pay a court fee which is much smaller than a paper proceeding.

With the help of this institute, the e-court of Poland examines 2,3 million cases a year, which is 63% of all court cases. In total, as of the end of 2016, the Lublin E-Court has heard over 13,4 million cases over the 6 years of its existence, totaling more than 10 billion EUROs, with only 122 employees including judges in the staff. For comparison, as of March 2017, about 219,000 cases per year were processed in Ukraine in the order of criminal (written) proceedings, which is about 18% of all cases.

4. Although according to the legislation of Ukraine the function of enforcement of judgments does not refer to the powers of the judicial branch, in the light of Article 6 of the The European Convention on Human Rights, it is absurd to take separate measures on judicial reform without ensuring the enforcement of judgments.

It is known that along with the change in 2016 of the provisions of the Constitution of Ukraine regarding justice and adoption of implementing laws, the Verkhovna Rada of Ukraine also adopted the laws of Ukraine “On Enforcement Proceedings” (new version) and “On Bodies and Persons Enforcing Enforcement of Judgments and other bodies’ decisions. The main innovation of the second law was the introduction of the Institute of Private Performers.

Official statistics on enforcement for the first quarter of 2019 has shown that from  367.1 billion UAH debt, which was fulfilled in the bodies of the state executive service, it is 8 billion UAH collected. As for the activity of the private enforcement officers, it is known that according to the results of the first half of 2019, from UAH 33.1 billion they owed UAH 1.1 billion. The calculations indicates that the actual performance in the bodies of the state enforcement service by the criterion of the amount recovered is 2.18%. The same indicator for private enforcement officers is 3.32%. At first glance, the difference is not large, however, if the amounts collected are correlated with the number of public enforcement officers (about 4500 people) and private (185 people), then we can speak about the effectiveness of private enforcement officers compared to public more than tripled.

The size of the market for defaulted liabilities is estimated at hundreds of billions of hryvnias. The attraction of these funds to the real sector of the economy depends directly on the time during which these judgments will be enforced. If you rely on the system in place prior to the introduction of the Institute of Private Performers, this will probably never happen. With the mixed enforcement system in place today, this figure can only be improved partially, and it also requires significant resources to reform the public enforcement service. However, it is only possible to change the situation for the better in this matter by a complete transition to a private system of execution of decisions.

However, before making such a policy decision, there are a number of issues that need to be addressed:

  • change the procedure for admission to the profession of private enforcement officer in order for this process to take place exclusively through automated anonymous testing, the results of which are determined by a computer program, and not like today by a qualification commission;
  • substantially adjust the function of the Ministry of Justice’s control over the activities of private enforcement officers and the procedure for holding them accountable, changing its focus from repressive-punitive to service-supervisory;
  • Improve enforcement procedures by providing contractors with all the necessary tools to execute decisions, developing, first and foremost, the technological component of this process (searching for property and accounts of the debtor and automating their seizure). For example, if the situation regarding the search of accounts of legal entities or entrepreneurs seems more or less acceptable today, because the State Fiscal Service of Ukraine maintains an appropriate register of accounts, then there are no tools for the search of accounts of individuals at all – the contractor simply randomly sends a paper decision the seizure of those banks in which, in his opinion, the debtor’s accounts may be available;
  • Introduce mandatory rules for the implementation of certain categories of executive documents (primarily those that are not of financial interest to private enforcement officer);
  • strengthen the legal and organizational capacity of each private contractor to form self-government bodies and influence their decision-making.

Among these measures the longest is to address the issue to increase the number of private officers and even their dispersal in the state,  creation the necessary electronic and telecommunications infrastructure. In general, all these preparatory measures can be implemented within one to two years.

The preparatory period prior to the transition to a wholly private decision-making system does not normally mean that, during this time, the percentage of execution will alternatively remain as low as noted above. After all, the reasons for this phenomenon lie on the surface – there is more than enough public information today (journalistic investigations, testimonies of individual private executors) that a controlled market for enforcement of decisions operates in Ukraine, according to which the debtor can buy himself the right of non-enforcement of the court decision, and the performer must coordinate his actions with the so-called “watching” representatives. The disciplinary practice of bringing private enforcement officers to justice leaves no doubt. The same issue is first and foremost solved by a change in policy implemented by the Ministry of Justice.

Conclusions.To summarize, I would like to point out that the problems in the judiciary are much more than what were covered in this publication. This is the level of logistical support of the local courts, and the functioning of a computer program of workflow in general courts, which requires unnecessarily large amount of working time, this and the problem of lack of protection in the courts, etc. Without addressing all these technical issues, any attempt to bring Ukrainian justice to acceptable European standards is a futile affair.Implementation of the above measures will not have results until the approach to compliance with the requirements of the law changes. After all, the problem of the legal system of Ukraine is not in bad legislation, but in neglecting it in the conditions of complete irresponsibility. For example, it is not something new to anyone in the legal community that, despite having been operating in the courts for almost 10 years, the system of automated case distribution can optionally sent a case, even a criminal case to a particular judge . At the same time, there are no reports of punishment for such cases, nor of remedying the situation from the authorities. Therefore, it is not about imperfect legislation or misunderstanding how to improve the situation. This is about the deliberate commission of unlawful acts and the lack of responsibility for it. Changing this state of affairs should be the main task of the new political power.

 

Viacheslav Panasiuk, Chairman of NGO «Law Development Centre»