Implementing comprehensive judicial reforms is one ofthe major challenges for the Ukrainian government. A lack of public confidencein the judiciary requires it to be restructured to ensure that it becomes abody trusted and respected by society. For this purpose not only procedural rulesshould be rebuilt, but also approaches and the way of thinking as well. 

The principal aim of judicial reform should beensuring fair judiciary. The fair judiciary implies impartiality of courtproceedings, reasonable terms of trial, predictability of court judgments,which are based on principles of legal certainty and the rule of law. 

It would be reasonable to set goals prior to takingpractical steps in this direction. Search of methods for achievement of thesegoals should be performed thereafter.

In our opinion, the following objectives might help in reforming judiciaryand building of social trust in this area: 

Highly professional judiciary 

The judge is thecentral figure in the process of the application of law. In some aspects thejudicial officer, of all public officials, exerts the ultimate power. In conflict situations it is the judge who draws theline in interpreting laws. Taking this into account, it would be reasonable tohire on these positions the best representatives of legal profession. 

In developed countries positionof the judge is the pinnacle of legal career for any lawyer. Taking position ofthe judge is an objective for the best professionals and it is regarded as agreat honor, thus, all applicants undergo competitive and transparent selectionprocess.

Transparency can be achieved by creating online publicprofiles of all applicants and sharing information online about the entirecompetition process. The selection of the candidates to become judges, in itsturn, should be based on a clear and comprehensible rating system. Allcandidates should be assessed comprehensively with due consideration not only ofprofessional achievements and educational background, but also of ethicalvalues. Prior to taking position of the judge candidates should also undertakean internship in court.

In this regard it would be reasonable to implementsystem of regular re-attestation of judiciary. Regular re-attestation and professionaltraining of judges should become the tool of acquiring knowledge and raising professionallevel, but not just pure formality. Such improvement of proficiency, in itsturn, should become one of criteria for career progression.

Along with changes in professional training of judges,it would be also reasonable to amend procedures of making them accountable. Makingjudges accountable should entail: (i) clear and precise criteria for misdeedsconducted by a judge; (ii) fair and transparent online procedure for makingjudges accountable for such misdeeds.

Sufficient financing of judiciary

Possibilities to succeed with previous goal depend on sufficient financingof judiciary. Justice is an important state and social function,which also has its cost. A poorly financed judiciary will inevitably depend onthose responsible for financial support and the distribution of funds.

Poor financing of judiciary would mean its inabilityto compete for the most prominent legal minds. It is generally accepted thatremuneration of public servants approximately is 25% lower   than inprivate sector. However, this is offset by high social status of the judge.

If anybody suggestssubstitution of the judiciary, it would be also reasonable to answer thequestion – substitute with whom? If status of the judge is financiallydisadvantageous, who will be interested in this position?

It would be also recommended toenhance the role of judicial self-governance bodies in the budgeting proceduresrelated to funding of judiciary and make their voice crucial in these matters.

Independence of court system

The Ukrainian judiciary should become a trulyindependent branch of state power. This means that all state officials shouldabstain from any interference with the activities of the courts.

Statements from representatives of other branches of statepower aimed at discrediting courts are unacceptable. Discrediting other statebodies is often a trick, used by authorities for diverting attention fromproblems existing within their own agencies.

Judges should also refrain from any possibleadjustments when the people in power change.

It would be reasonable tobuild effective system of judicial self-governance, which would protectprofessional interests of judges and deal with other matters of judiciary.Comprehensive system of judicial self-government is the important factor ofindependence of court system.

Independence of court systemalso implies its publicity. Judicial officers should not be evading of explainingtheir judgments to community. 

Decreasing number of disputes

In developed countries statepolicy is aimed at decreasing of number of court disputes. Both the state and legalcommunity work together in order to decrease number of disputes and prevent takingcases to courts.

The reason is that judicialproceeding is a costly affair, which requires much time and resources. In manycases it would be more advantageous from financial standpoint (both for the stateand the conflicting parties) to settle a lawsuit amicably, rather than commencejudicial proceedings.

This tendency, however, is nottypical for Ukraine. The number of disputes in Ukrainian courts in 2013 wasapproximately 5 million – fantastic figure even for the 45-million country. Agreat part of these disputes are disputes over social welfare, e.g. regardingrecalculation of pensions and other social benefits.

However, discussions onjudicial reform in Ukraine are mainly focused on existence of commercial courtsand the number of court instances.

Regretfully, there are no comprehensivestudies yet, which might facilitate protection of rights by other means than takingcases to courts.

The necessity ofwell-coordinated work of all state bodies is also worth mentioning. Ukrainianauthorities often pass populist laws and regulations, which are subsequently notexecuted by anybody. This is followed by large-scale initiation of legalactions, which overloads the court system.

Taking into account absence ofpreconditions for decreasing number of disputes, reduction of personnel incourts and reduction of number of courts appear to be premature.

Procedural rules changes

Except for general issues discussed above, amendmentsto the procedural law are also subject to further public discussion. Certainprocedures should become more clearly defined and comprehensible. Most lawyerswould agree that ambiguity of the law, making many interpretations possible,reduces its value.

The most important change, which is undisputable, is givingto the Supreme court real authorities of the supreme body in the judicialsystem of Ukraine.

The issue of proper substantiation of court judgmentshas also to be resolved. The judge has to be obliged to evaluate all theevidence and arguments presented by parties. If the judge rejects somearguments and/or evidence, such rejection must be substantiated in courtjudgment, but not just simply ignored (as often happens).

It would be also reasonable to implement the principlesof e-justice. This would make communication with court quick and convenient.

We support requiring that interests in courts only berepresented by professional lawyers admitted to the bar. Such developmentswould greatly facilitate judicial proceedings and lift the level ofprofessionalism of justice. At the same time, admission to the bar shouldbecome more challenging and competitive.

Most of the above changes are reflected in drafts,prepared by the Presidential Council. However, the procedural changes, in ouropinion, would not succeed without implementing principles, which ensureindependence and high professional level of the judiciary.

Currently the possibility of winding-upthe commercial courts is also discussed. The disestablishment itself will not automaticallylead to achievement of goals of judicial reform. Of course, discussion on thismatter is possible. But prior to making such serious decision, it would be reasonableto answer the question – what will come next? For example, participants ofcommercial disputes would hardly be enthusiastic about such perspective.

It is also discussed possibilityfor implementing judicial system composed of 3 levels, which suggests disestablishmentof the specialized cassation courts. These courts currently consider more than200 thousand cases. Who will then consider these cases instead?

We also support the idea of judicialsystem composed of 3 levels. However the following question remains undecided sofar: usage of out-of-court settlement of disputes and decreasing the number of disputesin courts. These problems should be resolved; otherwise we will face totalchaos.

Professional legal communityis confused by contradictory statements of authorities regarding judicialreform. Sometimes they give impression that political dividends are moreimportant than the future of judicial system.

In order to accomplishjudicial reform, which regretfully lasts for 24 years, it would berecommendable to take into account previous mistakes. Irresponsible and populistactions may result in collapse of the system and harm the country`s economy.

For further information contact LCF Group, www.lcfgroup.com.ua,  +38 (044) 455 8887

LINK: http://www.epravda.com.ua/columns/2014/12/19/514079/