Roadmap for Justice Reform

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The justice system reform is one of the most pressing issues on the agenda of our state's development. This reform has lasted as long as Ukraine exists and stays incomplete.

Meanwhile, Ukrainians still do not have access to a fair trial, protection of their rights and do not have guarantees for safety. At least those who do not have the power and money.

It is proved by the statistics. According to the survey commissioned by the Center for National Resilience and Development in February this year, 48% of respondents absolutely do not trust the courts, 32% rather do not trust them (a total of 80%). 75% - do not trust and rather do not trust the prosecutor's office. More than half of respondents (52%) believe that judicial reform should be firm and radical.

The justice system in Ukraine is expensive and inefficient. Our state spends exorbitant funds on its maintenance - much more than the EU countries. According to the European Commission on the Efficiency of Justice, Ukraine is among the top 5 countries in Europe with the highest rate of expenses on the judiciary.

Despite the President's statements on his readiness to reform this area, the actual steps done for changes are simply decorative, while preserving the Soviet heritage and the systemic preconditions for corruption.

This means that Ukraine needs a strategic and professional approach to reforming the justice system. And it is obvious that the current government is not competent. Therefore, civil society and the professional community must take the initiative in developing effective anti-crisis reform of the justice system.

The Center for National Resilience and Development has developed its own concept of reform aimed at solving the most painful issues that have accumulated in the judiciary and the prosecutor's office.

The main Concept points

Cleansing courts of dishonest judges. Termination of corrupt alliances between judges, law enforcement and local authorities.

PROBLEMS

Ukraine has been suffering from "Criminal feudalism" for many years. The courts of justice are located in administrative centers next to the local authorities, prosecutors, police, etc. which leads to corrupt alliances based on mutual cover-up principles. 

WAYS OF SOLUTION

To break this vicious circle at the very core, judicial districts have to be located in a different manner. New judicial districts are not to overlap with the administrative-territorial structure and location of criminal justice agencies. Meanwhile, good public transport system is to facilitate access to the courts thus support accessible justice. When reassigning judges to new courts, their integrity and professionalism are to be assessed by civil society. 

        2.     Elimination of Judicial Clans. Fair access to the profession

PROBLEMS

Judicial clans are the heart of the entrenched corruption system. Court presidents are called judicial generals. They have run the courts for decades and dragged their people there. Until recently, there were at least two court presidents in Ukraine who worked for more than 30 years - one since 1986, the other since 1988.

The current system restricts the mobility of professionals and creates corruption risks when entering the professions of judge, prosecutor and lawyer.

WAYS OF SOLUTION

The Court’s President’s election for one year only with no right to hold office twice in succession, which will reduce his/her power. 

A single national test, successful completion of which entitles legal professionals to compete for the positions of judges, prosecutors or practice law will ensure access to the profession for people outside the system.

         

        3.   Establishing an effective public control over the selection of judges and bringing them to disciplinary prosecution.

PROBLEMS

The judicial selection system is inefficient and corrupt. Attempts to break it 2 years ago were blocked in the Constitutional Court by the "judicial mafia".

The High Qualifications Commission of Judges (HQCJ) costs taxpayers UAH 150 million annually even though it has not been operating for about 2 years.

WAYS OF SOLUTION

The High Qualifications Commission of Judges is to be abolished. Instead, three panels within the High Council of Justice are to be introduced: a disciplinary panel, a judicial selection & evaluation panel and ethics panel. The representatives of the legal profession, selected by civil society and international experts, are to form the majority of the panel’s members. 
 

         4.  Establishing a system of criminal courts to deal exclusively with crimes and criminal offenses.

PROBLEMS

Current general courts, which hear both civil and criminal cases, are extremely inefficient. Ukraine is among the top 10 countries in Europe with the longest criminal proceedings.

WAYS OF SOLUTION

The system of specialized criminal courts is to be created, for hearings of crimes and criminal offenses.

Renewed jury trials are to be introduced. 

Cases of administrative misdemeanors and administrative penalties are to be gradually transferred to administrative agencies.
 

        5.   Ensuring the independence of the jury. Preventing  judges to exert pressure on jurors.

PROBLEMS

The current jury trial does not guarantee the right of Ukrainians to fair trials with the participation of the civil society. The lay judges' institution is a Soviet residue. It does not protect people from the judges’ bias and corruption, as judges communicate closely with jurors and have a wide variety of opportunities to put pressure on them.

WAYS OF SOLUTION

A new model of a real jury is to be introduced. 7-11 jurors are to hear particularly grave crimes. The jury will decide on guilt or innocence separately from the court.

           

        6. Creation of a separate court to protect the rights of investors.

PROBLEMS

Distrust of the judiciary is a barrier №1 to investments in Ukraine (according to a survey of investors conducted by the European Business Association, Dragon Capital and the Center for Economic Strategy). In 2020, distrust of the court in this anti-rating caught up with and outpaced corruption.

WAYS OF SOLUTION

A new court to protect the rights of investors is to be introduced. 

A specialized court for disputes, where one of the parties is an investor and the claim amount exceeds USD 10 million (including land as the object of investment). The court is to be staffed by the Supreme Anti-Corruption Court’s principle: judges are selected in an open competition with the participation of members of the civil society, experts with an impeccable reputation, who have the right to a decisive vote.

 

          7.  Optimization of the Supreme Court’s. Improving efficiency. Gradual reduction of staff.

PROBLEMS

Current Supreme Court is a clear example of how inefficiently taxpayers' money can be spent. Budget funding of the Armed Forces for the year 2021 is almost UAH 1.5 billion, which is about 11% of the annual budget of the entire judicial system. At the same time, the number of trials in the Supreme Court was only 2.6% of the total number of trials in 2020 (78,000).

WAYS OF SOLUTION

Certain High Courts within the Supreme Court are to be abolished, while specialized chambers are to be introduced: Private Law Chamber, Administrative Chamber, Criminal Chamber, Specialized Anti-Corruption Chamber.

The Grand Chamber of the Supreme Court is to be abolished, while transferring the cases to the Plenum of the Supreme Court, meaning all judges of the Supreme Court. The Plenum is not to consider individual cases but to form a unified practice of law application.

The number of judges of the Supreme Court is to be gradually reduced considering the decreasing number of cases.

          8.  Ensuring the independence of prosecutors.

PROBLEMS

Today, all prosecutors are dependent on the Attorney General. They are forced to follow his / her instructions, which might be illegal, under the threat of wrongful dismissal.

There are no safeguards against the prosecutor's dismissal. The Inspectorate General is entirely controlled by the Prosecutor General.

WAYS OF SOLUTION

A real prosecutorial self-government -  National Council of Prosecutors with 11 members (5 prosecutors, and 6 representatives of civil society) is to be introduced to replace the Council of Public Prosecutors and the Qualification and Disciplinary Committee of Prosecutors. The Сouncil is to conduct competitions for Prosecutor General’s and the Specialized Anti-Corruption Prosecutor’s positions.

The NCP is to include 3 panels: Panel for the selection of prosecutors, Panel for evaluation of prosecutors and advanced training and Disciplinary Panel. The decisive voice in all panels belongs to the representatives of civil society.
 

          9. Strengthening the protection of human rights in criminal proceedings.

PROBLEMS

Prosecution agencies often unreasonably accuse citizens of committing crimes for corruption reasons.

There are also opportunities for experts to be influenced by investigators in criminal proceedings due to the fact that some expert services belong to pre-trial investigation bodies.

WAYS OF SOLUTION

Investigating judge (not the prosecutor) is to approve suspicion in committing grave and especially grave crimes. Expert services are to be withdrawn from the pre-trial investigation bodies subordination.

 

        10.    Ensuring the protection of victims and witnesses.

PROBLEMS

Ukraine does not effectively meet its obligation to protect the rights of the victims and witnesses of crimes.

WAYS OF SOLUTION

Each oblast (an administrative unit) is to establish an institution to provide assistance and various types of support to victims and witnesses at all stages of criminal proceedings.

Also, following the best world practices, a compensation system from the state budget is to be created. State is to compensate for the damage caused by the crime in cases when such compensation is not possible at the expense of the perpetrator.

The reform can be fully implemented within two years with the political will provided. Should the necessary draft laws be adopted by January 1, 2022, full implementation of the Concept is possible by January 1, 2023.