What are the "European standards" for the judiciary and how they should be applied?
17.08.2020
Six years ago Ukraine and the European Union signed the Association Agreement, which anchored the Ukrainian course on integration with the EU. Hence, Ukraine tries to implement the European standards almost in all spheres. In this article, we try to explain what standards does the EU apply to the judiciary and whether they are all equally useful for Ukraine.
The "European standards" in the judiciary are mostly referred to in Ukraine in the context of judicial governance. Many argue that the approach "judges selected by their peers" is the only possible option for Ukraine and the introduction of this approach itself would allow to establish the independent judiciary entrusted by the society.

The myths on the absence of the alternatives to this approach go with its roots to the decision of the ECHR in the case of "Oleksandr Volkov v. Ukraine". Motivating the decision, the Court stated that the "the composition of the High Council of Justice of Ukraine still does not correspond to European standards because out of 20 members [of the HCJ] only three are judges elected by their peers". Even though this position was only one of a number of arguments of the Court, it was rolled-out as evidence of the absence of the alternatives to this approach in Ukraine.

The model of composing the judicial governance bodies where the majority of members are judges, selected by judges became popular at the time of judicial transition in the countries of Central and Eastern Europe. Then the majority of them introduced the standard of "judges elected by judges" for their judicial governance bodies.

The logic of the supporters of this approach was pretty simple – if courts are isolated from the political influence and the institutions independent, the judiciary will also gain independence. Eventually, the judiciary in Western Europe works within this model.

The initiators of changes did not consider that the judiciary in Western Europe countries has been developed for decades. The majority of citizens in these countries trust the judiciary – more than 70 per cent of the population in Germany and up to 88 per cent in Denmark. In these countries, political influence on the judiciary is minimised, and the integrity of judges is not doubted.

In these countries the rule "judges selected by their peers" makes sense as here judges take care of cleansing their community by themselves as well as ensuring the integrity of the whole judicial crops.

At the same time, the President or the Parliament cannot significantly impact the judicial governance and pressure judges or "drag" the loyal people to the offices. Judges, respectively, may hear cases against high officials or the interests of the latter and do not be afraid to lose the job for this.

A completely different situation was and is observed in the transitional democracies, in particular, countries of Central and Eastern Europe. The research proves that in many of these countries "judicial governance bodies started to turn into criminal-like structures where judges strive for personal benefit and use the new institutional structure for the oppression of the government".

Sadly, but such a perilous standard was introduced in Ukraine in 2016. Now 10 out of 21 members of the HCJ are judges, selected by the Congress of Judges, and one more seat is given to the President of the Supreme Court (SC) by virtue of their position. Before 2019, judges also had 2/3ds of seats in the High Qualification Commission of Judges (HQCJ), a body that conducts the qualification assessment of old and selecting new judges.

Introduction of the European standards did not bring the desired changes – the HCJ drowned in scandals, the HQCJ dismissed less than 1 per cent of judges upon the results of the qualification assessment and the political government still has an excessive influence on the judiciary. As a result, as of 2020, more than 75 per cent of citizens do not trust judges.

The same fate befell the Moldova and Georgia – two countries with a similar background, which introduced the standard "judges selected by their peers" during the formation of the judicial governance bodies. Civil society in these countries reports on the high level of corruption and political dependency of the judiciary from the political government.

The Venice Commission also confirmed these facts in its opinions on the judicial reform in Albania and Moldova. In particular, the Opinion CDL-REF(2019)031-e on the judicial reform in Moldova, the Commission and the Directorate of Human Rights and Rule of Law of the Council of Europe underlined that in some post-communist countries, "too high standards on judicial independence may result in a paradox" as the guarantees for independence are provided to judges who are neither independent nor trustworthy.

The Commission recommended to Moldova to establish a temporary mechanism for cleansing the judiciary of the untrustworthy members. It will restart the whole judicial corps and only after that – introduce the high standards of judicial independence.

Venice Commission
CDL-REF(2019)031-e
– The key task of judicial councils is to be the independent upholder of the independence of the judiciary. However, this does not mean that such councils are the judicial "self-governance" bodies. There is a need to monitor the judiciary through non-judicial members of the judicial council. The Venice Commission and the

Directorate admit that in order to avoid corporatism which may compromise accountability in the judiciary, monitoring the judiciary through non-judicial members of the Сouncil, such as academics as in the draft law, might be necessary. Corporatism should be balanced by the participation of other legal professions, "users" of the judiciary, i.e., attorneys, prosecutors, notary, academics, and civil society.
The same recommendations Venice Commission provide during the reform in Bosnia and Herzegovina and stated the following:

Venice Commission
CDL- AD(2014)008
– It is common practice that "judicial councils also include members who are not part of the judiciary and represent other branches of power or the academic or professional sector" and the Venice Commission even recommends that a substantial part of the members be non-judicial.
This approach is also mirrored in the "Rule of Law Checklist" report published by the Venice Commission . The document contains the control list of questions for assessing the state of the rule of law in a particular country.

Venice Commission
Para 82 of the "Rule of Law Checklist"
Involving only judges carries the risk of raising a perception of self-protection, self-interest and cronyism. As concerns the composition of the judicial council, both politicisation and corporatism must be avoided. An appropriate balance should be found between judges and lay members.

The involvement of other branches of government must not pose threats of undue pressure on the members of the council and the whole judiciary.
In contrast in Lithuania, a country of the EU, which is effectively eliminating the leftovers of the Soviet legacy, the Selection Commission of Candidates to Judicial Office consists of 7 members, where judges comprise the minority, and the journalist heads the Commission.

Unfortunately, during the judicial reform in Ukraine all the above-mentioned risks became reality – the members of the HCJ are selected by judges' quota, cover their influential colleagues; representatives of the Parliament and the President lobbying political force's interest; part of the HCJ members were appointed illegally; and the process of cleansing the judicial corps from untrustworthy members has been completely stopped.

As thus, there is no mandatory or even desired standard of "judges selected by their peers" for Ukraine. Instead, it is reasonable to speak about the establishment of the alternative standard for countries of transitional democracies where the significant or even crucial role in the judicial governance bodies should be given to the non-judicial representatives: civil society, representatives of other legal professions or international experts.

As of today, the most urgent problem is to cleanse the HCJ of the untrustworthy members. For this, it is important to have the influence of the civil society on the disciplinary proceedings against judges. For instance, civil experts can be introduced in the disciplinary chambers. Participation of civil society can make the latter more efficient and can lead to the real cleansing of the judicial corps of its untrustworthy members.

The Venice Commission emphasised this option in its Opinion on the Changes to the Constitution of Ukraine back in 2013:

Venice Commission
CDL-AD(2013)014-e
– The HJC would thus have 11 judges among its 15 members. This proportion seems even too high and could lead to inefficient disciplinary procedures. While calling for an appeal to a court against disciplinary decisions of judicial councils is required, the Venice Commission insists that the non-judicial component of a judicial council is crucial for the efficient exercise of the disciplinary powers of the council.
In addition, the crucial role of the non-judicial experts is important for conducting effective qualification assessment of judges and judicial candidates. In order to ensure the transparency of this process, it is reasonable to involve international experts in this process.

Venice Commission
Opinion of the Venice Commission on the draft law on the High Anti-Corruption Court of Ukraine CDL-AD(2017)020)
– In international comparison, it is not unusual that anti-corruption institutions are established with considerable support and input from international donors…

The international involvement seems to be justified in the specific situation in Ukraine, with due regard to the principle of Ukraine's sovereignty. During the interviews conducted in Kyiv, several interlocutors emphasised that only international involvement would ensure citizens' trust in the impartiality of the process.
The same opinion, the Venice Commission expressed, in particular in the report on the Judicial Appointments (CDL-AD(2007)028) and in the Opinion on the draft amendments to the Constitution of Montenegro (CDL-AD(2011)010) and Romania (CDL-AD(2002)012). To this end, the participation of the civil society and international experts in cleansing the HCJ and forming the HQCJ comply with international agreements of Ukraine and recommendations of the well-respected international institutions.

As the experience of the establishment of the High Anti-Corruption Court with the involvement of international experts, their participation in the process of reforming the judiciary is the only possible way to get rid of the untrustworthy members from the judicial governance bodies.
DJR
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