The Centre for Judicial Studies has published their study "Monitoring of Judicial Independence in Ukraine: 2008" which was undertaken as part of a Ukrainian – Swiss Project "Support for Judicial Reform in Ukraine, Promoting the strengthening of judges’ independence". The surveying of judges, prosecutors and bar lawyers took place in August and September this year before the beginning of the active phase of the latest political confrontation. The latter did not therefore impact upon the results of the monitoring and makes it possible to conclude that the monitoring showed a fairly high level of objectivity. An analogous study was carried out in 2007. The results of the studies have made it possible to follow the state of independence of judges in Ukraine, in accordance with international standards.

Institutional independence of judges

With regard to guarantees of independence provided by domestic legislation, the majority of respondents consider that constitutional norms on the whole comply with international standards for judicial independence with the exception of the norm on the makeup of the High Council of Justice (Article 131 of the Constitution) in which at least half of the members should be judges elected by their colleagues.

The constitutional norm stating that "The independence and immunity of judges are guaranteed by the Constitution and the laws of Ukraine. Influencing judges in any manner is prohibited" has not been positively reflected in Ukrainian legislation on the judicial system and the status of judges and provides insufficient guarantees for judicial independence. The laws "On the High Council of Justice", "On the procedure for the election and dismissal of professional judges of the Supreme Court of Ukraine" and current procedural legislation are rated negatively by the overwhelming majority of judges.

In their assessment of the level of respect for judges’ independence, compared with the monitoring in 2007 one notes a reduced level of respect for the court from the President (2007 – 50%, 2008- 55%); representatives of big business (2007 – 47%, 2008- 56%); journalists (2007 – 40%, 2008- 45%); people running business (2007 – 28%, 2008- 36%) and members of the public (2007 – 20%, 2008- 45%).

The results of both surveys showed that only one fifth of the respondents consider that they have sufficient powers to uphold the authority of judges and respect for the court, and the possibility of having influence on these processes.

Functional (procedural) independence of judges

Results indicate a continuing high level of attempts at influencing the court’s position during examination of cases. 71% (against 77% in 2007) of judges, 54% (against 67%) and 81% (against 89%) of bar lawyers confirmed awareness of such instances. Some decrease in the level of influence can be explained by positive internal changes in the judicial system itself since over the last year there has been a reduction in influence from the heads of the courts.

According to the answers from judges, the most active in trying to wield unlawful influence on the court are: the parties to the case and their representatives – 55% (against 48% in 2007); Representatives of the media (41% (against 28%); participants in political rallies and pickets – 41% (35%); National Deputies (MPs) 40% (against 39%) and representatives of political parties – 34% (against 35%). The answers from the respondents (judges, prosecutors and lawyers) suggest that there is considerable pressure on judges and heads of the courts from a large number of people during judicial examination of cases. The following forms of influence are most often used: threats to do damage to somebody’s career, to have them dismissed or have disciplinary proceedings brought against them; bribery; friendly advice.

Non-enforcement or enforcement but with considerable delay of court rulings remains one of the main reasons for lack of faith by members of the public in the court and in the state as a whole. And although judges do not have at their disposal levers for improving this situation, since the process of enforcement is under the control of the executive branch of power, the main complaints are levelled at the judiciary.

Social protection for judges

Of concern is the low level of pay of judges of local courts. Only half of the judges surveyed believe that they receive pay close to that of the district prosecutor. In comparison with the pay of the head of the district state administration, only one fifth of the respondents said that they received the same remuneration. The level of pay of local court judges is not commensurate with their level of responsibility.

The assessment of the independence of local court judges according to the criteria of the present level of pay is of deep concern. Only 11% (against 10% in 2007) of the judges surveyed say that their level of pay enables them to be independent. This begs the conclusion that the independence of almost 90% of judges is at risk.

Disciplinary liability of judges

Of greatest concern is the increase in the number of respondents (62% in 2008 against 58% in 2007) who believe that international standards for bringing disciplinary proceedings against judges are not being observed. A judge who is facing disciplinary proceedings should have the right to an examination of the issue by a fair and independent body on an adversarial basis. Current legislation does not contain regulations entitling the judge to provide evidence to refute the charges against him or her, or where the judgment is disputed to appeal against it.

Furthermore, there has been an increase – 72% against 65% – in the number of respondents who consider most complaints against judges to be unwarranted. In the absence of clear and objective criteria for assessing judges’ work, this can significantly affect judges’ independence in carrying out disciplinary proceedings. This issue is important also given that the High Council of Justice, one of the bodies responsible for disciplinary proceedings against judges, does not have a majority of judges on it. This is despite the fact that European standards call for an independent institution with such a majority in cases where judges are facing disciplinary charges.

Judges’ career

According to the results of the survey in both 2007 and 2008 one can conclude that in the present socio-political conditions the current model for providing judges with their powers (a professional judge is first appointed by the President for 5 years and then by the Verkhovna Rada indefinitely) is the optimum model for them.

On the other hand there is a clear lack of trust among judges of the public, a fear of direct answerability to the public on the results of their activities and professional behaviour. In answering the question: "Do you consider that judges’ positions should be filled on a competitive basis?" the position of judges did not significantly change during the year, with this being supported by 60% in 2008 against 58% in 2007, with the other 40% and 42% respectively against.

Initial appointment of a judge

There were considerable changes in responses to the question as to which official figures most influence the decision as to whether a judge is appointed for the first time. In 2007 the most influential figures were deemed to be representatives of the judicial administration (management) – the head of the local court – 34% (in 2008 – 28%); the head of the appellate court of the relevant region – 52% (2008 – 39%).

In the middle of 2007 the procedure for administrative posts in local and appellate courts of general jurisdiction changed. Administrative judges’ posts came under the direct political influence of the executive branch of power and became subordinate to bodies of judges’ self-government (the Council of Judges of Ukraine). This significantly weakened, if not broke, the negative chain of executive power – head of the court – judge. At the same time, the transfer of influence on initial appointments to representatives of the High Council of Justice and members of the qualifying commissions of judges will have a positive impact on the independence of domestic judges only on condition of their own independence and political impartiality.

Indefinite tenure

The survey showed that the process by which judges receive indefinite tenure was the most subject to political and administrative influence. The judges considered the decisive influence to be wielded by National Deputies (56%) and members of the relevant parliamentary committee (50%).

In 2008 18% of the respondents said that there was unlawful influence during the procedure for filling judges’ posts. This high figure points to a significant violation of the principle of independence of judges specifically in the process of forming the judge corps.

One thus sees that over the last year there has been a trend towards a reduction in the influence in forming the judge corps of representatives of the judicial administration (management), with this influence to a large extent shifting to the qualifying commissions of judges and the High Council of Justice. However unlike the qualifying commissions, the level of confidence in the independence of the High Council of Justice remains low. Furthermore a continuing negative trend in the mechanism for forming the judge corps remains unlimited political dependence.

General assessment of judicial independence in Ukraine

The results of the study demonstrate dangerous tendencies with infringements of judicial independence, with the institutional independence of the judiciary under constant threat from individual high-ranking public officials and state bodies.

The study "Monitoring of Judicial Independence in Ukraine: 2008" was carried out by the Centre for Judicial Studies with the support of the Council of Judges of Ukraine, the All-Ukrainian Independent Judges’ Association, the Union of Bar Lawyers of Ukraine and the Ukrainian Association of Prosecutors in August – September 2008 in 8 regions of the country. 1,072 judges of appellate and local courts were surveyed, together with 630 regional and district-level prosecutors and 590 bar lawyers.