Problems of restoring confidence in the judiciary in Ukraine

UDC 347.9

Ganna Rakhalska

Problems of restoring confidence in the judiciary in Ukraine

This article highlights current problems of low general confidence in judges in Ukraine. The legal frameworks of evaluation and review of decisions that were taken during the period from November 2013 to February 2014 have been analyzed herewith. The author of this paper has justified the imperfect regulation of the process of confidence in the judiciary of Ukraine restore, as well as developed recommendations for further improvement hereby.

Keywords: confidence in the government, the lustration, rights and freedoms of individual and citizen, the judicial system of Ukraine, the independence of judges.

The definition of the problematic issues and it’s linkage with scientific and practical tasks. Current socio-political situation in Ukraine requires an urgent renovation of all public authorities in order to provide further democratic development of the society. The practice of foreign countries shows that such a renovation is possible only in the frameworks of clear legislative mechanisms, enshrined in law.

So, after the overthrow of Communistic regimes in Central and Eastern Europe a lot of discussions and meetings took place, disputing concerning grounds and consequences, the regulatory settlement of restart the State apparatus, or to start the lustration. For example, Georgia, Lithuania, Poland, Hungary and Czech Republic have adopted a number of legislative acts were the Communist regime has been considered as a criminal, communist leaders and top government officials were dismissed with further ban to work in government for a long time. Such a "release" also exposed to individuals collaborated with the KGB and the CPSU, as well as the state employees who couldn't explain the origin of own large assets comparing with quiet small official salary. These measures were secured by the relevant laws that have restored the public confidence in the government and contributed the implementation of European standards of democratic governance in activities of officials and officers.

Usually, after the collapse of totalitarian or authoritarian regimes a State renovation is not simple, because of the social conflict between followers of an old regime and supporters of the new State model. During these processes various abuses of power is possible and that's why it is so much important to manage the lustration in a civilized manner. To this ends, the Parliamentary Assembly of the Council of Europe has adopted the Resolution "On measures to dismantle the heritage of former communist totalitarian systems» № 1096 (1996), which stated, inter alia, the following:

- criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. (paragraph 7);

- in case if the lustration actions do not contain the evidence of a crime, the lustration measures can be compatible with a democratic State under the rule of law, if several criteria are met. Firstly, guilt, being individual, rather than collective, must be proven in each individual case - this emphasizes the need for an individual, and not collective, application of the lustration laws. Secondly, the right of defence, the presumption of innocence until the guilt is proven and the right to appeal to a court of law must be guaranteed as well (p. 11, 12). [1]

As the result of recent tragic events that took place in Ukraine, during November 2013 - February 2014, the political situation in the country has been changed significantly; include the change of the Constitutional Order, election of the new President and government of Ukraine. The above-mentioned events have started the beginning of confidence restoration in the government of Ukraine, stimulating the Ukrainian further integration into the European Union. Renovation of the judicial system of Ukraine was simultaneously initiated, the first step on this path became the adoption of the Law of Ukraine "On the restoration of confidence in the judiciary in Ukraine" № 1188-VII dated April 8, 2014 (hereinafter - the Law) [2]. However, I consider the process, that was started by the Law such as not complied with democratic standards.

2. Recent research and publications analysis, where the solution of the problem has been already started, this part also describes the author's reference list. Establishing the Rule of law principles in society, ensuring the independent judiciary in Ukraine, guaranteeing everyone the right to the fair trial now are quite popular topics of publications. These issues were highlighted, in particular by V. Bryntsev, V. Horodovenko, M. Koziubra, V. Kryvenko, R. Kuibida, V. Malyarenko, V. Moisyk, L. Moskvich, M. Onischuk, M. Savchyn, A. Selivanov, V. Stefanyuk, A. Stryzhak.Various problems of the lustration measures application have been studied by O. Busol, V. Lemak, S. Shevchuk and others.

In the legal mechanism provided by the Law, aimed to restore confidence in judicial corps, we found certain shortcomings that require a scientific approach and should be highlighted for the further improvement of this legal mechanism.

3. This article is dedicated to the earlier unresolved aspects of the general problem. The judiciary is the part of the National general mechanism of protection, secure and restoration of rights, freedoms and legitimate interests of a person and a citizen, the State and society as a whole. In this regard, it should function and develop on the basis of democratic principles, as well as it should ensure clarity and transparency of the administration of justice.

In 2010, Mr. V. Bryntsev the famous Ukrainian scientist, has carried out a fundamental study, in particular it was focused on the fact that analysis of stages of the judicial reform in Ukraine serves, as the evidence of its inconsistency, wrong organization and lack of doctrinal definitions of the basic concepts of judiciary, starting from the term definition and finishing with the conceptual apparatus of the major subsystems of the unified State judicial system [3, p. 62].

According to Mr. Selivanov, as the criterion of legitimacy of judicial system and the indicator of general confidence is the law enforcement practice of justice in general, from a local court to the Supreme Court of Ukraine. However, a certain reasons exist for the vulnerability of judiciary, what is important for the society and cause fair criticism [4, p. 4].

During the period from 1991 to 2013 there were created two basic concepts of improvement of judiciary, approved by the Verkhovna Rada of Ukraine on April 28, 1992 № 2296-XII [5] and by the Decree of the President of Ukraine on May 10, 2006 № 361/2006 [6], as well as other laws, for example "On the Status of Judges", as of 15 December 1992 № 2862-XII [7], "On the Judicial System of Ukraine" dated February 7, 2002 № 3018-III [8], "On the Judicial System and Status of Judges" from July 7, 2010 2453- VI [9].

The above regulations stipulated the legal basis for the organization of the judiciary and implementation of justice in Ukraine, the system of courts, requirements for formation of judicial corps, the procedure for judicial self-government, financial and logistical support for judges etc. However, each change of the political power caused the change of State policy and political course of the country. Every new political force that was coming to power, did not really consider the previous developments, causing incompleteness of reforms that have been already started. Spontaneous development of judiciary has gradually reduced the effectiveness of protection of rights and freedoms in Ukraine, however, during recent years the level of credibility has been dropped significantly. According to the Razumkov Centre data, in November 2010, this level was around 7.5%, in December 2011 - 4.5%, in November 2012 - 5.7% in March 2013 - 4.7% [10].

During the period of social and political confrontation from November 2013 to February 2014, Ukrainian courts have adopted a number of decisions that have not been accepted by the large part of society, what in turn led to massive protests and discontent of people. These circumstances led to an urgent need to restore confidence in the judicial system of Ukraine, what was enacted by the Law.

The Law content analysis gives grounds for concluding that the Parliament is going to solve actual problems of the Ukrainian nation in a superficially manner.

The proposed legislative mechanisms for the judicial system updating are imperfect, as they are on the verge of compliance with the Constitution of Ukraine and do not provide a comprehensive implementation of the legitimate aim pursued.

4. Setting article goals. The purpose of this paper is to highlight problems of restoring confidence in the Ukrainian judiciary in terms of newly adopted Law. In order to archive this purpose it is necessary to examine the nature of the Institute of lustration and to analyze the legislative mechanisms of restoring confidence in the judicial system of Ukraine, as well as to develop proposals for its further improvement.

5. Summary of the study with a complete justification of the obtained scientific results. In Ukraine, as in democratic State, the public authority is exercised on the basis of separation of legislative, executive and judicial powers; Justice in Ukraine is administered exclusively by courts, delegation of judicial functions, as well as assignment of these functions by other agencies or officials is prohibited; the independence and security of judges is guaranteed.
(Articles 1, 6, 124, 126 of the Constitution of Ukraine) [11].

According to the legal position of the Constitutional Court of Ukraine, as it was set out in the Decision of 1 December 2004 № 19-rp/2004, the independence of judges is an integral component of their status, the constitutional principle of the organization and functioning of courts and professional activities of judges; the independence of judiciary is primarily in its self-determination, impartiality during the administration of justice before any circumstances other than the law, is guaranteed by the Constitution of Ukraine the independence of judges is provided by: the special order of their election or appointment and dismissal ( paragraph 27 of the first part of Article 85 , of the fourth, fifth, Article 126 , of the third, fourth, Article 127 , Article 128, paragraph 1 of Article 131), a prohibition to influence judges in any manner (the second part of Article 126 ), a must for Judges' decisions to be made based on the "rule of law" principle (first part of Article 129), a special procedure for bringing judges to disciplinary liability (item 3 of the first Article 131), the State guarantees funding and proper conditions for the functioning of courts and judges (the first part of Article 130 ), the implementation of self-government (second part of Article 130 ) (subparagraph 4.1 of paragraph 4 of the reasoning part) [12, p.406].

We believe that by its nature, the judicial system is the most stable component of the government system, that's why all processes associated with the improvement of its operation and reform, including through the lustration should be comprehensive, balanced and meet the basic principles of democracy.

As the result of November 2013 - February 2014 events, in Ukrainian society a widespread support gained proposals to reform judiciary and lustrate judges in order to restore confidence in the system. Considering this, we found it important to study the nature of the lustration institute.

The term "lustration" comes from the Latin word lustratio - purification through sacrifice - and involves dismissals from the civil service of compromised high-ranking State officials with further ban for a lifetime or certain period to occupy positions in this area [13, p. 347]. During the lustration process a special verification is being performed, according to it's results, it may be decided to release certain number of state employees from their positions with following ban to work in government for a certain period of time. The lustration mechanisms should be regulated by the legislation and passed by the Parliament in accordance with international standards.

By their nature, the lustration laws establish some specific requirements and governing access to jobs in the public sector, as well as defining the verification procedure, whether a person that is holding a particular position, or is only planning to occupy it has a collaboration links with the previous regime. Such laws are not in the field of criminal law, they are aimed to reconstruct the existing State bureaucracy and to involve the new people in it, more liable to democratic regime [14].

The lustration laws, as a rule, establish a presumption of guilt of certain categories of officers and state employees, however, in our opinion, for the introduction of such practices, it is necessary to make sure that the process is not politicized, ie a dismissal and further prosecutions of a person couldn't be only due to his/her affiliation to a particular political party. In addition, an application of appropriate sanctions against "guilty" people shouldn't result in the unjustified harassment, a domestic revenge, etc. Mr. Turcan, the judge of the Supreme Administrative Court of Ukraine fairly draws attention to this problem, as he mentioned: "If we follow the principle of revenge, in the future, due to the cycle change, it will be the basis for those who have a record "released in connection with the lustration" seamlessly to resume back" [15].

The above, gives the reason to believe that the lustration should have proper constitutional and legal frameworks, which will prevent the construction of political accounts, or revenge for the adoption of "wrong" decisions. Only under these conditions the harmony in society, as well as the implemented goal could be achieved.

Issues of updating the State apparatus in Ukraine occur cycles during the regular change of the political elite, as the electoral programs of political opponents are based on calls to reconstruct the State apparatus. However, at the end of the race and after participants receive mandates and immunity, many of such initiatives remains without logical conclusion within the legislative process. Furthermore, the adopted laws often contradict the Constitution of Ukraine. This is because legislators have only to specify and detail the constitutional provisions and to establish the procedural forms of their realization. There is no right for legislator to deviate from the letter, moral values and the spirit of the Basic Law of Ukraine [16].

As it was noted back in 2009, by Mr. Melnyk and Mr. Havronyuk, it has long been a common situation where the Parliament "stamps" the unconstitutional laws "bundles", and the Constitutional Court of Ukraine recognizes them as fully or partially unconstitutional. So, starting from June 1997, the Verkhovna Rada of Ukraine adopted 2180 laws (not including about 800 laws on ratification and accession to international treaties), and the Constitutional Court of Ukraine took 123 decisions on the recognition of laws or provisions as the unconstitutional. So, every eighteenth-law contained norms contradicting the Constitution of Ukraine [17, p. 8].

During 2010-2013 the Parliament has adopted 1126 laws (not including 156 laws on ratification of international treaties and agreements) the Constitutional Court of Ukraine, among others, recognized
22 decisions declaring as unconstitutional certain provisions of 25 laws of Ukraine, it means that one from each 45 laws contained provisions contradicting the Constitution of Ukraine.

This problem of imperfect legislation remains relevant even today, in particular the question of the lustration mechanisms of development and restoration confidence in the judiciary in Ukraine. During March-May this year the Verkhovna Rada of Ukraine has registered a number of draft laws on these issues, but in the result of discussions and considerations, only one law was passed, which has already been amended several times, while the rest of drafts are still being prepared.

Yet, the analysis of the Law indicates its imperfect and unsystematic provisions. In addition, certain provisions of this legal act have signs of inconsistency with the Constitution of Ukraine.

Firstly, according to the preamble and Article 1, the main purpose of the Law is to increase the authority of the judiciary in Ukraine and to restore confidence in it as well [2]. However, the systematic analysis of the Law provisions indicates, that in fact, it is the law on the lustration of judges, as it provides the establishment of a special body, or the Temporal Special Commission for verification of judges of general jurisdiction (hereinafter - the Commission), composed of respected persons of society, which is supposed to evaluate certain decisions of judges and conclude whether a breach of the oath took place or not, what is the basis for their further dismissal. The above is the basic mechanism of lustration, while the goal of lustration body is the special verification of officials, in order to eliminate or significantly reduce the risk, posed by these lustration actors for the formation of the viable democracy by using their position to abuse human rights or to block the process of democratization [14].

The law is supposed to solve the problem of the low confidence level in judiciary, only by updating the staff of judicial system. Such an update, of course may have some positive effects, but it won't eliminate the root causes of the problem. The Law is not providing any substantive changes to the law on the implementation of pre-trial dispute resolution mechanisms, in order to improve availability, efficiency and quality of justice, as well as timely enforcement of court decisions. These unresolved problems, in our opinion, led to current crisis of confidence in judicial system, but not the so called "suspicious" professional activity of judges.

Secondly, the limited content of judges verification by courts of general jurisdiction only, in particular it reduces just to evaluation and review of decisions in criminal cases and cases on administrative offenses against those, who participated in the political and social events from November 21, 2013 to February 21, 2014, it deprives citizens of the right to initiate such a verification on judges who took an unjust decision in another period of time.

Obviously, the level of confidence in judicial system couldn't be reduced almost to a minimum suddenly. The results of sociologist studies show, that this process lasted for the past years [10]. So, it is possible that there is a certain amount of not cancelled court decisions of different categories in Ukraine, the legality of which is rather questionable. It is obvious, that parties in these trials also need to be protected. In this regard, we consider that a list of decisions subject for review by the Commission should be expanded within reasonable limits, in order to ensure full recovery of rights, freedoms and legitimate interests of individuals and legal entities.

Separately, we draw attention to the fact that according to the second part of Article 3 of the Law, grounds for the verification of a judge is the consideration of a case, taking individually or in college admission of decisions with violations of the Convention for the Protection of Human Rights and Fundamental Freedoms as of 1950, stated in the decisions of the European Court of Human Rights.

The prosecution of judges only on this basis is a quite controversial, because at the result of cases consideration, the European Court of Human Rights finds as a violator the State, ie Ukraine, the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. Often, these violations were caused by the imperfect legislation in various areas of social life, which judges had to apply. In this regard, we believe that separating judges, as the sole perpetrators of violations by Ukraine of its international obligations is not correctly.

Thirdly, as a part of the mechanism of restoring confidence in the judiciary in Ukraine the Commission was founded. To the powers of this body a special verification of judges of courts of general jurisdiction is referred, what is actually is a part of the procedure for bringing judges to disciplinary liability. And that is unreasonable duplication of powers of the High Qualification Commission of Judges and the High Council of Justice of Ukraine. In our opinion, taking into consideration the purpose of the law the creation of an additional special body for verification of judges is impractical.

According to the verification of judges, the Commission may adopt a conclusion concerning a breach of the oath by a judge and pass it to the High Council of Justice for further consideration. However, even if such a conclusion is the basis for bringing judges to responsibility, at the same time it does not entail the abolition decisions in force. Thus, people who submitted an application for carrying out verification cannot effectively protect their rights. In such circumstances, the question arises, whether the spirit and the letter of the Constitution of Ukraine response the dismissal of a judge for breaching the oath, at the same time leaving the adopted decisions in force.

We believe, that restoring confidence in judges is impossible without the restoration of the rights, freedoms and legitimate interests of an individual and a citizen, and therefore the procedural conditions for judicial decisions reviews have to be developed in case of the oath-breach by a judge who made the decision. Such a mechanism should be implemented not only within the Law, but in general in the legislation on the judicial system, since the question of oath-breaking by judges is relevant regardless the time of acceptance of a judgment and the type of proceedings.

At fourth, the powers of the Commission include the opportunity to inspect and make copies of the case's materials, even if the proceedings by the case are not yet completed, but current Codes of Ukraine are providing a comprehensive list of persons having such a right. It means that actions, aimed to reclaim the case materials where the proceedings are not yet closed, may be regarded, as an attempt to influence a judge and encroachment on his/her independence and impartiality.

We draw attention to the fact, that legislators have already granted the similar power to members of the High Council of Justice, however, the Constitutional Court of Ukraine, in its decision as of 11 March 2011 № 2 rp/2011 declared these powers as unconstitutional (paragraph 2 of the operative part) [18, p.48]. Thus, the Commission de facto is authorized for unconstitutional actions, what is not promoting its activities in community.

As a result of the verification, the Commission approves a conclusion and submits it together with the verification materials to the High Council of Justice, or other competent authority for a final decision. But, even in case of recognition by the High Council of Justice of such a conclusion as falsely, it has no right to cancel this conclusion, since such a mechanism is not provided for by the Law.

Fifthly, in accordance with Article 2, parts 13 and 15 of Article 4 of the Law, the Commission operates under the High Council of Justice and conducts a judicial verification within one year, from the date of formation of its composition; a person appointed as a member of the Commission for the period of his/her work shall be released from his direct duties at the main place of work, with maintaining general and special length of service. However, the Law does not regulate the issue of the order and sources of funding of the Commission, as well, the powers of apparatus staff that is supposed to ensure its functioning, have not been also determined.

Thus, analyzing the provisions of the Law, we can conclude that it does not address the issue of restoration of confidence in the judiciary in Ukraine. At the same time we can't mention the positive changes to the legislation introduced by this legal act, which we believe will benefit the judicial system of Ukraine and promote its further reformation. We are talking, in particular about the appointment by a secret ballot to administrative positions in courts of some persons, among the acting judges of the same court for a period of one year. It raises the status of the general meetings of judges, as a body of judicial self-government, the right to which is constitutionally guaranteed.

In addition, the Law expands the composition of the Council of Judges of Ukraine, what is significantly improves the opportunities to protect professional rights and interests of judges. However, we believe that a representative of the Constitutional Court of Ukraine should be also included to its composition, as the supreme body of judicial self-government should represent all courts of Ukraine.

Finding and prospects. General confidence in activities of officials and state employees is the key point to the stability of the constitutional order of Ukraine. Well-established interaction between the private sector, NGOs and public authorities enables progressive socioeconomic and spiritual development of the Ukrainian society. In case, if crisis has affected confidence in the government in whole or just some of its branches the State should immediately develop the legal mechanisms to restore this confidence . Ukraine has started the process of public sector reforming in order to restore its legitimacy, but it develops slow and unsystematically. Thus, the restoration of confidence in judiciary has an imperfect legal frameworks, what in turn won't promote the protection of rights and freedoms, as well as it won't increase confidence in reliability and impartiality of the judiciary in Ukraine. Considering this, the Verkhovna Rada of Ukraine should urgently improve the legislation in this area.

According to the research results, we have identified the new directions for the further scientific researches of problems in reformation of the judicial system of Ukraine, mechanisms of restoring confidence in judiciary and improving the quality of the administration of justice.


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