The moment of truth for judicial reform came in 2017 as there were many significant events: both legislative events like the adoption of new Laws “On the High Judicial Council” and “On the Constitutional Court of Ukraine” and introduction of comprehensive changes in procedural codes, as well as personnel ones. The most sweeping change is, of course, the competition for the new Supreme Court (the SC). However, in the pursuit of frequency of experiments, they often had to close their eyes on fairness, and for the main “examinees”, representatives of the judiciary, some innovations turned out to be quite painful
Quite an expected reaction to the legislative steps taken in 2016 on reform was the fact that many judges left the judicial system, simply leaving their posts or resigning. A similar judicial move was seen in 2010, after the adoption of a new version of the Law of Ukraine “On the Judiciary and the Status of Judges”. Although during the reform campaign, the stakes were actually on some judges that would not be satisfied with the new competitive procedures, and the need to pass a qualification evaluation to confirm competence for the job as an obligatory condition to increase the level of a judicial fee. Voluntary withdrawal of judges from the system was to ensure the notorious personnel reboot. But, as it turned out, judicial reformers clearly underestimated the scale of the personnel problem: the situation was complicated not only by the natural outflow of personnel, but also by the fact that many judges of the “five-year plan” were without authority for a long time and could not execute justice.
In the first quarter of 2017, the problem of the personnel shortage reached a critical point: there were cases when some courts suspended the exercise of justice due to the lack of judges. The problem of personnel shortage was solved situationally with the help of a temporary detachment of judges. This merely allowed the personnel “disease” to be halted, but not to cure the domestic Themis, where the “disease” had now passed into the chronic stage. Thus, according to the official data of the State Judicial Administration of Ukraine (SJA), more than 1,000 personnel positions remained vacant in the courts as of October, 2017, which is nearly 25 % of the total number of judges set for local general courts.
It is difficult to predict whether there will be a thaw in the personnel cold in the foreseeable future, especially considering the future enlargement of the courts: creation of new district instances on the basis of general local courts. In fact, it is obviously necessary to reconsider the current personnel standards for the new chart of courts, reducing the number of judges.
DIFFICULTIES OF IMPLEMENTATION
The trends of 2016 set the tone for legislative policy in terms of justice in 2017. As early as in 2016, it was expected that the process of “legitimizing” the Laws of Ukraine “On Amending the Constitution of Ukraine (regarding justice)” and “On the Judiciary and Status of Judges” (both of which came into force on 30 September, 2016) would be synchronized with implementation of constitutional innovations and the activities of the High Judicial Council (HJC) and the Constitutional Court of Ukraine (CCU). However, parliamentarians have constantly made adjustments to the implementation schedule for judicial reform, planned by the members of the Council on Judicial Reform. For example, the Law of Ukraine “On the High Judicial Council” was adopted by the Verkhovna Rada of Ukraine only on 21 December, 2016, and came into force on 5 January, 2017. Then the process to transform the High Council of Justice into the High Judicial Council was set in motion.
On the path of implementing constitutional innovations, the first major setback occurred with judicial reformers in the spring of 2017. On 11 April, 2017, parliamentarians devoted the entire plenary day to the second reading of the draft law “On the Constitutional Court of Ukraine”, but the draft was eventually rejected, voted down and withdrawn. After such a political fiasco, four different versions of adaptation of the work of the CCU to the new realities of the Constitution of Ukraine were submitted for approval to Parliament at once. As a result, the legislative scenario prepared by the members of the parliamentary Committee was promoted: the new law of the CCU was adopted on 13 July, 2017. And in that case, MPs had to ignore the provisions of part 2 of Article 107 of the Law of Ukraine “On the Rules of the Verkhovna Rada of Ukraine”, which state that a draft bill or a bill rejected by Parliament cannot be introduced in the current and the following extraordinary sittings of Parliament of the relevant session. The delay of parliamentarians in adopting the new law on the CCU left its mark. Due to the long-term absence of legislative regulation, it was impossible not only to implement the constitutional rights of citizens to consider constitutional claims, but also to solve the problem of personnel shortage in the judiciary of the CCU. In 2017, 13 of the required 18 judges worked in the Court from the start of summer and until mid-November. The legislative regulation of the procedure for appointing “constitutional” judges on a competitive basis has become a wake-up call for all subjects of the formation of the Court: the President and the Parliament, who had two unfilled personnel positions in the CCU, as well as the highest body of judicial self-regulation. By the way, only the latter managed to fill its quota in the CCU so far: on 13 November, 2017, the XIV extraordinary convention of judges appointed Viktor Horodovenko as a judge of the CCU.
In addition to implementation of the constitutional innovations in 2017, a concept of a new specialized judicial law was to be implemented in terms of creating these two new instances: the Supreme Intellectual Property Court (IP court) and the Supreme Anti-Corruption Court. The procedure for creating the IP court was already set in motion. On 29 September, 2017, the President signed a decree on its creation, and on the very next day the HJC agreed the number of judges of the IP court, specified by the SJA of Ukraine: the personnel unit consists of 21 people, and the High Judicial Qualifications Commission of Ukraine (HJQC) announced a competition for vacant posts.
Unlike the IP court, there is a need to prepare an appropriate rule-making basis to create the Supreme Anti-Corruption Court: to adopt a law specifying special requirements for this court’s judges. In the autumn of 2017, the issue of creating an appropriate legislative mechanism acquired a social and political impact not only in our state, but also abroad. At the beginning of October 2017, the Venice Commission gave quite a negative evaluation n its conclusion of the first rule-making swallows of Ukraine on this issue: two draft laws that were subsequently withdrawn. But after long discussions about who, MPs or the head of the state, should create the exclusive legislative tools for the Court and initiate them before Parliament, this issue ended up in political gridlock.
In 2016, various “titles” like “the most major personnel project”, “unprecedented, public and transparent personnel selection”, “the standard of creating the supreme court from scratch” and others were given to the competition to the new SC. This project became an unprecedented event not only for the domestic Themis, but also for foreign judicial systems; so, both the legal community of Ukraine and international experts closely monitored all the competitive ups and downs.
The competition started on 7 November, 2016, after the HJC agreed the number of “supreme” judges specified by the SJA of Ukraine: 120 employees (30 judges in each of the four courts of cassation in the SC). Initially, about 1,436 persons announced their intention to participate in the personnel marathon, and only 846 of them actually came to the “start”. The HJQC permitted 653 candidates to participate in the competition. Subsequently, some of the applicants (about 30 persons) were eliminated on the basis of the results of a special inspection.
The qualification evaluation of the candidates consisted of two stages: examination and interview. On 16 February , 2017, the first part of the exam was conducted. This was an anonymous written test for 625 candidates, which determined their level of knowledge in the field of law, including the level of practical skills and habits in law-enforcement. And after just five days the HJQC held the second part of the exam: 520 persons participated in the practical section. 382 candidates came to the second stage of the competition (it consisted of a study of a dossier and interviews with candidates, and the contestants had to pass tests for personal, moral and psychological qualities and general abilities). On 21 April, 2017, the HJQC began interviewing candidates. Later, the issue of around one hundred candidates who received negative conclusions from the Public Council for Integrity was considered in the plenary composition of the Commission.
In the late evening of 27 July, 2017, the HJQC announced its final verdict against 120 winners of the competition. 16 scientists, nine lawyers and four candidates with total experience joined the ranks of leaders, except for judges. The main sensation on the homestretch of the competition was the statement by Yaroslav Romanyuk, the Chairman of the Supreme Court of Ukraine, who was among the winners in the quota of the Court of Cassation in the SC, about termination of participation in the competition in connection with his intention to resign.
Having transferred the personnel baton from the HJQC, the HJC considered the materials to be submitted to the head of state about the appointment of 120 candidates for judges of the SC in a non-stop mode: from September 14 to September 25, 2017, within the frameworks of one meeting. On September 29, the decision made in a “closed session” was announced: the HJC gave the green light to 111 candidates as to their appointment as judges of the SC, “rejected” two contestants and postponed the decision on another seven candidates. On 9 November, 2017, when the new SC was registered as a legal entity, the HJC made a submission to the President regarding another three contestants.
The main culmination in this competitive event came on 11 November, 2017, when the solemn oath ceremony for new “supreme” judges took place with the participation of the head of state within the walls of Klovski Palace, the future main working residence of the SC. However, there were also intrigue: as it turned out, candidate Serhiy Slynko did not reach the final stage of the personnel formation of the new SC, which, as was repeatedly declared, was exclusively the function of the President of Ukraine. As it turned out later, he was not included in the list of judges of the Cassation Criminal Court in the SC at his own initiative: Mr. Slynko asked not to be appointed a judge of the SC and to check the information contained in publications of some media regarding his participation in the consideration of resonant criminal cases.
The situation with the “self-withdrawal” of the candidate on the homestretch is more like a kind of “gentlemen's agreement” reached in order not to tarnish the main shiny finished advertisement panel of judicial reform, the “Supreme Court”, in the public's eyes. However, behind the beautiful facade of the new main judicial instance of the country, everyday work that would be very tense was waiting for the newly-minted “supreme” judges. It is expected at least for the first few years, when along with new cases, the judges of the SC will have to consider the problematic legacy of their predecessors, the Supreme Court and the three superior specialized courts, which comes to more than 60,000 cases according to some estimates.
WHAT HAS THE PROCESS COME TO?
New cassation filters and other procedural instruments provided by the Law of Ukraine “On Amendments to the Commercial Procedure Code of Ukraine, the Civil Procedure Code of Ukraine, the Code of Administrative Procedure of Ukraine and other legislative acts” adopted on 3 October, 2017, were designed to help the new SC to cope with the enormous volume of work. As you know, this legislative product allows not only to start the activities of the Supreme Court, but also to conceptually improve and modernize procedural legislation.
Legal professionals put high hopes, for example, on the mechanisms of the “e-court”, which can radically change the routine practice of legal proceedings, freeing up extensive resources for more meaningful tasks. Procedural changes provide for the creation of a Unified Judicial Information and Telecommunication System (UJITS) in the courts. Using the UJITS, the court will be able to send judicial decisions and other procedural documents to the participants of legal proceedings to their e-mail addresses, and perform other procedural actions in electronic format. Lawyers, notaries, private executors, arbitration managers, court experts, state bodies, local governments, economic entities of the state and municipal sectors of the economy will have to register their e-mail addresses with the UJITS in mandatory manner.
The unity and stability of court practice will be provided by mechanisms to prevent the occurrence of different positions on the same legal issue in the practice of the SC: the algorithm for transferring a case to the Grand Chamber of the SC, if the panel of judges, the chamber or the joint chamber deem it necessary to deviate from the conclusion on the application of the rule of law in a similar legal relationship set out in a ruling of the SC made earlier. Moreover, within the administrative process, the SC will have an exclusive instrument to solve the problem of mass submission of similar cases to the courts. Such cases will be referred to as “standard” cases, and courts will have the opportunity to choose from their number a so-called exemplary case and submit it to the SC. During the consideration of the exemplary case, proceedings for all standard cases can be suspended. After the ruling has been made by the SC on the exemplary case, proceedings for standard cases can be resumed, and decisions on them should be made taking into account the relevant decision of the SC.
Many revolutionary changes were provided for the economic process. Along with one of the most discussed know-how, the institution of witnesses, the applicability of which is assessed rather ambiguously by lawyers (the risk really exists that this institution will have a negative impact on the efficiency of economic legal proceedings), progressive change is a significant expansion of methods of judicial protection. The concept of this innovation is as follows: if the law or agreement does not define an effective method of protection, the court may establish another method of protection that does not contradict the law in accordance with the requirement set out in the claim form.
One of the most anticipated innovations for a law firm is the principle of full compensation of legal expenses for professional legal assistance. These expenses include not only the attorney's fee for representation in court, but also the costs for other legal assistance provided within the framework of the case.
It should be noted that the procedural stage is not the final stage of judicial reform. The next issue in line is improving legislation on the legal profession and advocacy and conceptual reform of the legal basis, legal education.