Fair Resolution of Disputes in Court
Competence and accountability through transparent and objective selection and evaluation of judges
Ukraine has launched a unique process of judiciary reset by way of the evaluation of all judges, selection of new judges and setting up of new courts. These processes are based on clearly defined objective elements, such as legal professional knowledge and skills testing, practical exercises (case studies), psychological testing, transparent and publicly accessible interviews and participation of the civil society.
While more than 3,000 judges have been removed or left the judiciary since 2014, some 5,000 working judges in Ukraine still remain in office, and need to undergo an in-depth evaluation. So far 10% of the evaluated judges have not been confirmed as fit to continue to exercise their duties. The time also came for new blood in the judiciary. Last year the new Supreme Court was launched following the selection of experienced and young legal professionals with different backgrounds, who underwent the tests to check the above competences, including integrity. Out of some 650 candidates, only 382 were allowed to pass to Stage 2 of the process after the testing of their legal skills and competences. 116 judges were selected by the end of the process.
The judiciary reset is going to continue with the selection of judges of the new Intellectual Property Court and Anti-Corruption Court, second tranche of the Supreme Court competition, choice of new first instance judges, and further evaluation of some 4,000 judges. Pravo-Justice is supporting these processes by helping develop legal professional knowledge tests and case studies, conduct social and personal skills and competences (psychological) testing, promote participation of the civil society in the judiciary selection and evaluation, and build the capacities of the High Qualification Commission (HQC) to strike a balance between objective testing and documentary evidence on the one hand, and the inevitable exercise of discretion in choosing the right people for the job.
The judiciary reset is going to continue with the selection of judges of the new Intellectual Property Court and Anti-Corruption Court, second tranche of the Supreme Court competition, choice of new first instance judges, and further evaluation of some 4,000 judges.
Greater leadership within judiciary - High Council of Justice
Creating a truly independent institution with an independent mindset of individuals working for it takes a long time, as various cultural obstacles may prevent that. At the same time, judiciary ‘independence’ is not an end in itself - it is merely an avenue to make the courts and judges more accountable to the society by way of delivering swift and fair administration of justice. This is understood and achieved in Europe through strong policy guidance from the top of the judiciary governance bodies, but without interference in the operational matters of the judiciary in adjudicating individual cases.
One trend becomes more apparent – namely, effective judiciary governance systems are usually put in place with one body at the top. Up to now in Ukraine, many different institutions were responsible for different functions - such as admission, evaluation, disciplinary reprimand of judges, control of budget and other management decisions. Positive developments are now taking place with the entry into force of new legislation on the High Council of Justice (HCJ), which should be placed at the top of the judiciary governance system, to make it more streamlined and efficient. As the matters stand, there is no single body to fix goals for the Ukrainian judiciary. There is no point in selecting and evaluating individual judges, if no one is evaluating the system.
“Pravo-Justice“ is helping promote this top-down policy thinking in Ukraine through greater leadership of HCJ not just as a defender of the independent judiciary, but a shepherd for more accountable and service-oriented judiciary. Thus the Project supports various initiatives to improve the role of the High Council of Justice in important systemic matters of judiciary performance, budgets, communication, as well as individual matters of discipline, appointment and dismissal of judges.
Performance management and new courts map
Up to very recently, there was no single body to fix policy goals for the judiciary system in Ukraine. Some very basic questions need to be answered, such as - what are the constant or changing policy tasks of the courts and judges? Is it to promote the rule of law, protect human rights, improve investor confidence in the country, improve the gender balance? Once those basic questions are answered, they have to be broken down into smaller performance standards and targets for each court or judge. There is no point in evaluating individual judges, if no one is evaluating the system.
“Pravo-Justice“ is helping answer these questions by using technological achievements of data science, building the judiciary performance management system covering time, cost efficiency and productivity which objectively compares all Ukrainian courts and judges to each other, identifying lack of speed or quality in decision making, and allowing for more objective basis for all budget and career decisions.
Greater clarity and foreseeability of law through uniformity of practice
The importance and indispensable character of a coherent case-law for the principle of the rule of law is clearly echoed in the jurisprudence of the European Court of Human Rights (ECHR). Ukraine is already moving along the lines of comprehending the principle of legal certainty as an essential pre-requisite of the rule of law. The legal community of the country is almost unanimous in the view that this can only be achieved through greater uniformity of practice of courts.
“Pravo-Justice“ is assisting the Supreme Court (SC) in building its leadership at the pinnacle of the domestic legal system. One of the issues is striking the right balance between access to a court by parties on the one hand, and the need for higher courts, including SC, to act primarily in the interests of the legal system rather than the parties. The highest judicial bodies cannot be placed in a position to carry out their function of overseeing the development of consistent jurisprudence, if overburdened by routine issues. It is also essential to standardise the structure and reasoning of court decisions. Finding an appropriate role for the newly introduced individual constitutional complaint mechanism is also challenging, in order to make sure that the Constitutional Court oversees and complements the jurisprudence of courts of ordinary jurisdiction, without replacing it.
“Pravo-Justice“ is making its own contribution by focusing on building more efficient procedural regulation on accessibility of “cassation” and other appeals, more user-friendly case-law search tools, feedback linkages between research and analysis and the courts case-law, and better training system with more capable National School of Judges (NSJ) at the forefront, with the cumulative effect of bridging the existing gap between legislation and practice.
Better service to court clients
Greater user and service orientation is a key factor in the modern approach to the judiciary governance. The Model Courts approach in the Pravo-Justice design is helping pilot a number of initiatives in selected (up to 5 courts) across Ukraine, with a view to improving client service through front-office facilities, better handling of vulnerable groups of court users, institutionalisation of user satisfaction surveys, piloting of other modern management initiatives. Following on the example of advanced European jurisdictions, client service standards would be implemented to serve as a background for courts focused on greater quality and efficiency, including the rules on welcoming parties to the proceedings, internal business dress-codes, communication of judges and staff with colleagues and clients, management of conflict situations, greater security of courts and parties etc.