Anna Ogrenchuk, Man­ag­ing part­ner, LCF Law Group

Kyiv Post Legal Quarterly - - Contents -

Ju­di­cial re­form in Ukraine Im­ple­ment­ing com­pre­hen­sive ju­di­cial re­forms is one of the ma­jor present-day chal­lenges for the Ukrainian gov­ern­ment. A lack of public con­fi­dence in the ju­di­ciary re­quires it to be restruc­tured to en­sure that it be­comes a body trusted and re­spected by so­ci­ety. The prin­ci­pal aim of ju­di­cial re­form should be en­sur­ing ev­ery­one’s ac­cess to jus­tice and a fair trial held in an in­de­pen­dent and un­bi­ased court. The ju­di­ciary should be­come re­li­able and im­par­tial, based on prin­ci­ples of legal cer­tainty and the rule of law. In our opin­ion, the fol­low­ing ob­jec­tives are cen­tral to the re­form of the ju­di­cial sys­tem and build­ing of so­cial trust in this area:

Im­prove­ment of the process of ap­point­ing judges and in­creas­ing ac­count­abil­ity

A lack of public con­fi­dence in the ju­di­ciary be­gins with the pro­ce­dure of ap­point­ing judges to the bench. Thus, public trust in judges may be sig­nif­i­cantly im­proved through im­ple­men­ta­tion of a fair and trans­par­ent sys­tem for their nom­i­na­tion and ap­point­ment. Trans­parency can be achieved by cre­at­ing on­line public pro­files of all ap­pli­cants and shar­ing in­for­ma­tion on­line about the en­tire com­pe­ti­tion process. The se­lec­tion of the can­di­dates to be­come judges, in its turn, should be based on a clear and com­pre­hen­si­ble rat­ing sys­tem. Tak­ing into ac­count lack of public trust in the ju­di­ciary, com­pe­ti­tion pro­ce­dure should in­volve, not just judges, but prom­i­nent hu­man rights ac­tivists, rep­re­sen­ta­tives of the civil so­ci­ety, rep­re­sen­ta­tives of aca­demic cir­cles etc. Mak­ing judges accountable should en­tail: (i) clear and pre­cise cri­te­ria for mis­deeds con­ducted by a judge; (ii) fair and trans­par­ent on­line pro­ce­dure for mak­ing judges accountable for such mis­deeds. A body re­spon­si­ble for mak­ing judges accountable should in­clude prom­i­nent in­di­vid­u­als (both with legal and non­le­gal back­grounds) trusted and re­spected by so­ci­ety. Fair com­pe­ti­tion com­bined with trans­parency of the above pro­ce­dures, in our view, would sig­nif­i­cantly im­prove so­ci­ety’s trust in the ju­di­ciary and fa­cil­i­tate jus­tice.

In­de­pen­dence of court sys­tem

The Ukrainian ju­di­ciary should be­come a truly in­de­pen­dent branch of state power. This means that all state of­fi­cials should ab­stain from any in­ter­fer­ence with the ac­tiv­i­ties of the courts. Judges should also re­frain from any pos­si­ble ad­just­ments when the peo­ple in power change.

Suf­fi­cient fi­nanc­ing of ju­di­ciary

Jus­tice is an im­por­tant state and so­cial func­tion, which also has its cost. The in­de­pen­dence of the ju­di­cial sys­tem is closely con­nected to its fi­nan­cial in­de­pen­dence. A poorly fi­nanced ju­di­ciary will in­evitably de­pend on those re­spon­si­ble for fi­nan­cial sup­port and the dis­tri­bu­tion of funds. It is im­por­tant to re­al­ize that the judge is the cen­tral fig­ure in the process of the ap­pli­ca­tion of law and the legal sys­tem as a whole. In some as­pects the ju­di­cial of­fi­cer, of all public of­fi­cials, ex­erts the ul­ti­mate power in the com­mu­nity. Tak­ing this into ac­count, it would be rea­son­able to hire the best rep­re­sen­ta­tives of legal pro­fes­sion for th­ese po­si­tions. In this re­gard poor fi­nanc­ing of ju­di­ciary would mean its in­abil­ity to com­pete for the most prom­i­nent legal minds. Cur­rently the so-called re-at­tes­ta­tion of ju­di­ciary and estab­lish­ment of qual­i­fi­ca­tion classes for judges is widely dis­cussed. Some ex­perts also pro­pose the in­tro­duc­tion of a new dis­ci­plinary penalty for judges — trans­fer­ring them to a lower courts. In our view, the in­tro­duc­tion of such dis­ci­plinary penal­ties would hardly con­trib­ute to the qual­ity of jus­tice. Ex­cept for gen­eral is­sues dis­cussed above, amend­ments to the pro­ce­dural law are also sub­ject to fur­ther public dis­cus­sion. Cer­tain pro­ce­dures should be­come more clearly de­fined and com­pre­hen­si­ble. Most lawyers would agree that am­bi­gu­ity of the law, mak­ing many in­ter­pre­ta­tions pos­si­ble, re­duces its value. We also sup­port re­quir­ing that in­ter­ests in courts only be rep­re­sented by pro­fes­sional lawyers ad­mit­ted to the bar. Such de­vel­op­ments would greatly fa­cil­i­tate ju­di­cial pro­ceed­ings and lift the level of pro­fes­sion­al­ism in the car­ry­ing out of jus­tice. At the same time, ad­mis­sion to the bar should be­come more chal­leng­ing and com­pet­i­tive. All of us un­der­stand that the new Ukraine needs a new ju­di­cial sys­tem. We must build a fair jus­tice sys­tem re­spected by so­ci­ety. And I be­lieve that by work­ing to­gether we can!

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