The problems besetting the Ukrainian justice system have been known for a long time: rulings to order, pressure from both within the system and from outside; chronic lack of funding which is compensated by corruption; numerous abuses and irresponsibility from judges; the lack of logic in the distribution of powers between tiers of the judicial system.

Measures against these phenomena are suggested in the amendments to the Constitution proposed by Party of the Regions, the new draft Constitution put forward by the President, as well as in the Conceptual Principles for further court reform from the VII Congress of Judges.

Elected or appointed?

One of the key issues of constitutional change is the way of forming the judge corps. It has become fashionable among politicians to say that judges should be elected, and even recalled, by the public. People undoubtedly like this. It is this variant which is proposed by the Party of the Regions: judges of all courts would be elected by the relevant communities or at national elections.

The President’s draft envisages judges of higher levels being appointed by the Senate (one of the two houses of parliament in the draft), while lower level judges would be appointed by the President. Judges of magistrate courts which should appear for minor cases would be elected by the public.

At present judges are first appointed by the President for 5 years, and then receive indefinite tenure from the Verkhovna Rada. Judges of the Constitutional Court are chosen in equal number by the President, the Verkhovna Rada and the Congress of Judges (six each – translator). This mechanism where the career of a judge depends on the decisions of political bodies causes considerable dependence on politicians.

However elections despite their democratic veneer would still further politicize the position of judge. They would be forced to become involved in election campaigns, and who would give the most support, if not politicians and business?

Even a magistrate could be of interest to local politicians and businesspeople wanting to strengthen their influence.

The Venice Commission does not recommend election of judges by the public for these reasons. (cf. http://www.venice.coe.int/docs/2009/CDL-AD(2009)024-e.asp )

The Commission approved the idea in the President’s draft that parliament does not take part in the election of lower court judges, but felt that election by the Senate would still carry the danger of political rulings.

Therefore, however “undemocratic” this may sound, parliament and the public should not take part in the formation of a judge corps. The President should only nominally appoint judges on the basis of a competition if after that s/he has no further relation to their career. However the optimum solution would be for all appointments and dismissals to be carried out by a depoliticized High Council of Justice.

Term of office

Opposite alternatives are proposed: the Party of the Regions suggests election every 5 years, while the President’s draft proposes indefinite tenure.

The authors state that any appointment for a certain period carries the risk of judges’ dependence on those making the relevant decision.

Some politicians say that tenure should be restricted since otherwise judges felt untouchable, and are therefore guilty of abuses much more often than judges appointed for the initial 5 years. The authors point to figures which do not confirm this. Since the present Constitution came into force (1996) 86 judges have been dismissed: 48 during the five-year period, 38 who already had indefinite tenure.

Liability and immunity

There is no sense in introducing any new procedure for appointing judges with effective mechanisms for bringing judges to answer.

At present the Constitution provides an exhaustive list of grounds for suspending judges’ powers, whereas the Party of the Regions variant says that they can be recalled on the grounds and in accordance with a law which would reduce constitutional safeguards of independence.

The President’s plan changes little except that it is the High Council of Justice, forming a Disciplinary Commission, which would bring disciplinary proceedings against judges.

At presence this role is carried out, depending on the level of the court, by qualifying commissions and the High Court of Justice. Yet the issue involved is more often than not unrelated to the judge’s qualification, and therefore the idea of creating a Disciplinary Commission can be supported, and is also in line with European standards. The authors believe, however, that such a Disciplinary Commission should be an independent body.

Immunity of judges

According to the current Constitution, judges may not be detained or arrested without the consent of the Verkhovna Rada before being convicted by a court. The Party of the Regions suggests no change to this, while the President’s draft only changes the body involved, it becoming the Senate instead. In countries of Western Europe judges do not have such guarantees and there respect for judicial independence is the result of century-long tradition.

In Ukraine where such respect has not yet become the norm, and the rules of arrest do not fully correspond to European standards, certain additional guarantees of immunity are not redundant. However the procedure for approaching the Verkhovna Rada and the latter’s consideration are drawn out and complicated, as well as there being periods when parliament is not meeting, yet decisions need to be taken swiftly. This makes it possible for a person who has committed a crime while serving as a judge to go into hiding.

It would therefore be advisable for the question of whether a judge may be detained or arrested to be decided not by a political body, but by the High Council of Justice. Or this can be by a higher level court, but with a panel of judges, so as to avoid abuse.

In either case there must be the possibility of immediate detention of a judge at the scene of a crime, with the issue of consent for the person’s arrest being decided as swiftly as possible.

High Council of Justice

The current makeup of this body is not in line with European standards. The European Charter on the Statute for Judges demands that at least half the members be elected by their colleagues.

At present only 4 of the 20 members representative the judges’ corps (the Head of the Supreme Court and 3 members are elected by a congress of judges.). Two members are also appointed by the President. Under the present Constitution, even if the members of the High Council of Justice are mainly appointed from judges, this will not eliminate the problem of politicization.

This problem would be further exacerbated if the Council were given the authority to appoint and dismiss judges. Therefore amendments to the Constitution need to review not only the jurisdiction of this body, but also its makeup. This is pointed out in the Conceptual Principles for further court reform from the VII Congress of Judges (the Conceptual Principles).

Court structure

The Conceptual Principles propose a three-tier system – local courts, appellate courts and the Supreme Court.

At present due to varying interpretations of constitutional principles, the judicial system remains incomplete. There is a three-tier system of courts for criminal and civil cases (local courts, appellate courts and the Supreme Court), but for economic and administrative proceedings, a four-tier system is in place, with additional high courts.

Yet the number of stages in all types of court proceedings is identical, and in civil and criminal cases the Supreme Court is empowered to consider its own judgments, this violating the principle that nobody can be the judge in their own case.

There remains a problem with the Supreme Court being overloaded with cassation appeals against the rulings of ordinary courts in civil cases. Even extraordinary measures involving the handing over of cassation appeals received before 1 January 2007 to general jurisdiction appellate courts did not rectify the situation, with the load on the Supreme Court having not changed significantly.

Two solutions are possible. One would be, as suggested in the Conceptual Principles, to create a three-tier system, removing high specialized courts. Yet if the Supreme Court becomes the only cassation level, the right to cassation appeal would be palpably restricted. Justice in the majority of cases would end with the courts of appeal. However, considering the considerable number of miscarriages of justice, even with this restriction of the right of cassation appeal, the Supreme Court would still be overloaded. Then it would be necessary to increase the already large number of Supreme Court judges (at present 95).

The second option would be to create high courts for civil and criminal jurisdiction which could carry out the function of cassation level. This would ensure the right of cassation appeal, and mean that the Supreme Court could fully devote its time and energies to its main function – ensuring the same application of the law through reviewing cases where the courts of cassation level in situation situations gave different interpretations of the law.

The procedure for appointing chairpersons of courts and their deputies is an issue around which there has been much political struggle in recent times. At present if you have influence on the chairperson of the court, you can influence the results of any case.

This issue has not yet been regulated either by the Constitution, with the exception of the Supreme and Constitutional Courts, or by law. Both the President’s draft and the amendments suggested by the Party of the Regions propose that the chairpersons of courts and their deputies should be elected by the judges of the particular court.

This variant, as opposed to the present situation when the chairpersons of courts and their deputies are appointed by the Council of Judges would make it possible to avoid subordination and centralization in the judicial system. It would at the same time be vital to reduce the powers of the said judges in order to reduce pressure or other unlawful influence on judges.

The progressive ideas in the plans proposed are: constitutional consolidation of the right to a fair trial; introduction of indefinite appointment of judges with the minimizing of political influences; strengthening of the mechanisms for judges’ liability with the creation of a Disciplinary Commission of Judges; ensuring that no less than half the members of the High Council of Justice are representatives of the judges’ corps; clear definition of the role of each tier in the system of courts with the prohibition on combining at one tier functions of different levels in one case; the appointment of chairpersons of courts by the judges of that court.

What would jeopardize judges’ independence are the proposals that the public elect judges and to allow political bodies to retain their powers regarding the formation of the judges’ corps, and providing consent for the detention and arrest of judges.

Abridged from an article by Ihor Koliushko and Roman Kuybida from the Centre for Political and Legal Reform published at http://pravda.com.ua/news/2009/8/7/99507.htm (the cuts are at the expense of detail about the plans proposed, since one has been thoroughly reviewed by the Venice Commission, and at least one major party’s proposals are not included above)