Rule of Law Indexes and Ratings
27.09.2020
The access to justice and the fair trial is one of the fundamental rights, granted to all the people. Therefore, the establishment of the Rule of Law and observing the right of its citizens to the free access to justice always remained the key indicator of a well-developed democratic country with strong government institutions.
With this regard, several independent international organizations with a well-known reputation conduct the assessment of each country to track its progress in establishing the Rule of Law. All these organizations use the specific criteria for such assessment, which we will briefly review in the below analysis.

It is essential to mention that the aim of such indexes and ratings is not to emphasize the gaps in national judicial systems but to track the progress and successes of the national governments as well as point out the areas for improvement.

As of today, there are three main international indexes conducted by international organizations concerning the Rule of Law and judicial systems.

The first and the leading one is the World Justice Project Rule of Law Index, composed and updated by the World Justice Project (WJP) – a US-based organization with the Head office in Washington DC. WJP Index covers 128 countries worldwide.

The European Commission for the Efficiency of Justice (CEPEJ) published the report "European judicial systems. Efficiency and quality of justice".

The World Bank (WB) composes and updates the ratings of the countries by various sets of criteria. One of the significant factors of the assessment of the WB is the Rule of Law index. It is composed based on the Worldwide Governance Indicators – a measurement tool, which was developed by the WB experts. The purpose of the index, formed by the WB is to reflect the investment attractiveness of the country by the ability of the national government to ensure a free and independent justice system for individuals and legal entities.
World Justice Project Rule of Law Index
The World Justice Project was founded by William H. Neukom in 2006 as a presidential initiative of the American Bar Association (ABA), and with the initial support of 21 other strategic partners, the World Justice Project. Later it transitioned into an independent non-profit organisation with multiple offices across the world. The head office is located in Washington, DC.

The initiative unites representatives of the business community, research fellows, lawyers and experts from different spheres on advancing the Rule of law worldwide. Besides the Rule of Law Index, which covers 128 countries, the organisation produces and publishes analytical reports and briefs concerning access to justice and the Rule of law in different regions.

The main product is the Rule of Law Index. The report is based on the results of the research team of the WJP and updated annually. Each country is estimated by nine criteria and depending on the scores in each of these criteria is ranked in the general Index. The criteria are as follows:

a) Constraints on government powers – measures the extent to which those who govern are bound by law. It comprises the means, both constitutional and institutional, by which the powers of the government and its officials and agents are limited and held accountable under the law. It also includes non-governmental checks on the government's power, such as a free and independent press.

b) Absence of corruption – measures the absence of corruption in a number of government agencies. The factor considers three forms of corruption: bribery, improper influence by public or private interests, and misappropriation of public funds or other resources

c) Open Government – measures open government defined as a government that shares information, empowers people with tools to hold the government accountable, and fosters citizen participation in public policy deliberations. The factor measures whether basic laws and information on legal rights are publicised, and evaluates the quality of information published by the government

d) Fundamental Rights – measures the protection of fundamental human rights. It recognises that a system of positive law that fails to respect core human rights established under international law is at best "rule by law", and does not deserve to be called a rule of law system.

e) Order and Security – measures how well society assures the security of persons and property.

f) Regulatory Enforcement – measures the extent to which regulations are fairly and effectively implemented and enforced. Regulations, both legal and administrative, structure behaviours within and outside of the government.

g) Civil Justice – measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system.

h) Criminal justice – evaluates the criminal justice system. An effective criminal justice system is a key aspect of the Rule of law, as it constitutes the conventional mechanism to redress grievances and bring action against individuals for offences against society.

Each country gains scores from 0 to 1 where 0 is the lowest and 1 is the highest mark.

The highest scores are given to the Scandinavian countries where the judicial system is independent and effective in the ability to enforce justice. The level of trust to the judicial system and courts in these countries is on a very high level, and the integrity of the judicial governance bodies and judges are undoubted. In addition, the level of corruption in the judiciaries of the Scandinavian countries is very low. The combination of these facts puts them in the leading places of almost all the ratings and assessments in this sphere.

The worst situation is in the African countries, some of the Middle East countries, and countries of South America, where government institutions are weak and unable to ensure the sufficient level of transparency and integrity in the judiciary.

Ukraine has always been in the middle of the scale and showed some progress in between 2015 and 2019 scoring an additional 0.03 points (0.48 in 2016 and 0.51 in 2019). However, such growth can hardly be acknowledged as a success if to analyse a little bit deeper the assessment criteria itself.

The first assessment criteria – Constraints on Government Powers comprises several sub-criteria, and if to consider them first during the analysis, the situation looks not so optimistic. Thus, in four years, Ukraine managed to progress from having 0.45 to 0.46 points.

It is not surprising that under the second assessment criteria Absence of corruption Ukraine lost 0.01 point (from 0.34 in 2015-18 to 0.33 in 2019). It is essential to mention that the country did not move in fighting corruption according to the WJP Index during 2015-18. Notably, according to the sub-factor "Government officials in the judicial branch do not use public office for private gain", Ukraine did not show any progress in 2015-2018 and even lost several positions in 2019.

The similar situation is observed if to assess the country by Open Government subfactor – back in 2015 Ukraine had 0.56 points, and by 2019 this number changed to 0.55. The area where according to the WJP our country showed significant improvement was the area, assessed by Order and Security.

In 2015, the WJP gave Ukraine only 0.60 points in this area whereas in 2018-19 this number made up already 0.73 points. Presumably, this may be related to the reform of Patrol Police in Ukraine as the progress of the country under this criteria corresponds with the process of the implementation of this reform. However, we cannot certainly confirm this fact.

With regard to the rest indicators, the situation did not change in between 2015 and 2019 in the sphere of Regulatory Enforcement. Here we stayed with 0.42 points. Some progress was made in the areas, assessed by Civil Justice and Criminal Justice criteria. Here Ukraine scored additional points from 0.49 in 2015 up to 0.54 in 2019 and 0.36 up to 0.37 points respectively.

Overall, it is important to understand that aside from the points system, the WJP Index forms the rating of countries, giving them certain places, which are supposed to correlate with the progress of the country in the areas defined by the WJP as crucial. When speaking about the overall position of the countries, we need to go beyond the positions of the country on the scale of the rating and analyse the sub-factors of each criterion. This would allow us to build a clearer picture of the situation with the Rule of Law in a particular country.

However, as we may see, moving up the ladder of the rating often can be made due to improvements in areas, which are not critical for establishing the Rule of Law. In the case of Ukraine, despite the progress in bettering order and security, the independence of the judiciary and the ability of the legislature to limit the government powers to remain on a comparatively low level. At the same time, the situation in more important spheres, e.g. fighting corruption and ensuring transparency of the governance bodies, including judicial governance bodies and courts, became even worse.
Assessment of the European Commission for Efficiency of Justice (CEPEJ)
The European Commission for Efficiency of Justice (CEPEJ) has been working for more than 15 years to develop a variety of tools and mechanisms to effectively assess judicial systems of member Council of Europe member states. The information collected and provided by the CEPEJ is mainly used by court presidents, high justice officials and other stakeholders to improve the quality of judicial systems.

The primary tool of the CEPEJ is its Dynamic Database of European judicial systems. It provides a volume of quantitative and qualitative information about the judicial systems of the member states as well as the information on the budgets of its judicial systems, gender equality in courts and a brief overview of the planned judicial reforms. The last update of the Database was made back in 2016, and according to the official statements, the update on 2018-2020 is in progress and supposed to be published soon.

However, the CEPEJ offers a detailed report on the judicial systems of European states for the cycle of 2016-2018. The report describes vital changes in numbers compared to the previous period and provides possible reasons for such change.

The Database reflects key numbers on the judicial system of Ukraine to include the spending of the government on the judiciary, number of courts, the total number of judges and prosecutors and a wide scale of quantitative data. A full list of assessment criteria is available at his link.

Unfortunately, many of the above-listed criteria are missing for Ukraine. This may be connected with the methodology of assessment and the process of submitting the data to the CEPEJ. Also, the data on Ukraine is supposed to be provided by the Head of the High Qualification Commission of Judges (HQCJ) as he has been appointed to represent the country before the CEPEJ. However, since the HQCJ has been dismissed, we assume that the information has not been provided to the CEPEj promptly.

The CEPEJ in its assessing judicial systems using Key Judicial Indicators – a questionnaire covering the main spheres of the judiciary.

In addition to the Dynamic Database, the CEPEJ offers the planned judicial reforms per country and briefly describes the progress of its implementation. The latest update on Ukraine was made back in 2016.
World Bank Rule of Law Index
The World Bank, as a part of its activity, prepares and publishes the Rule of Law: Estimate – a rating, which scores countries on the aggregated indicator ranging from approximately – 2.5 to 2.5. The leading country, according to the WB Index in Finland with 2.02 points in 2018 and the worst – a number of African countries scoring -1.15 and lower. The rating uses the data provided by the Worldwide Governance Indicators – project reports aggregate and individual governance indicators for six dimensions of governance:

1) Voice and Accountability – reflects the ability of the citizen's to participate in selecting their government;

2) Political Stability and Absence of Violence – measure the likelihood of political instability or terrorism in the country;

3) Government Effectiveness – captures the perception of the quality of public services, the quality of civil service and the degree of its independence from political pressure;

4) Regulatory quality – reflects the ability of the government to formulate and implement clear policies and regulations to stimulate the development of a private sector;

5) Rule of Law – reflects the confidence of the citizen's inability of the government to protect the rights and freedoms, ensure the independence of courts and police;

6) Control of Corruption – captures perceptions of the extent to which public power is exercised for private gain, including both petty and grand forms of corruption, as well as "capture" of the state by elites and private interests

Each of the six indicators is constructed from the averaging together the data:
a) Analyzing data, provided by individual sources by filling in surveys related to a specific topic;
b) Preliminary rescaling of the individual source data to run from 0 to 1. The data received from the a-category are rescaled to range from 0 to 1;
c) Use of the Unobserved Components Model – a statistical tool allowing to make 0-1 rescaled data comparable across sources and then to construct a weighted average of the data from each source for each country;

A detailed description of the methodology of the research is available at this link.

The World Bank Rule of Law Index represents the data, which was last updated in 2018. It allows us to see the position of the country in the rating by several filters. The first category describes the Estimate of the country – general score of the country. In 2018, Ukraine scored -0.72 value. For two years – compared to 2016 – Ukraine gained an additional 0.6 points in this index, making part of the Bottom 30 per cent for the indicator Rule of Law.

The second one is the rank of the country. It reflects the position of the country compared to others. In 2018 Ukraine took 24th place out of 100 countries.

The WB rating is one of the main sources for foreign investors to assess the potential risks before directing their investments into a particular country. As we see from the above-listed number, the situation with the Rule of Law in Ukraine is not the worst, but it does not provide for a sufficient level of trust amongst international companies. The inability of the judicial system to enforce justice in the business sphere remains one of the key obstacles for the further economic growth of the country.
Conclusions
A brief analysis of all ratings and indexes related to assessing the situation in the Rule of Law in Ukraine demonstrates the uncertain progress of the country in this area. On the one hand, Ukraine showed some success in promoting democratic values and implementing the essential changes in different spheres.

However, on the other hand, if we go beyond the generalized indicators and analyze the sub-factors, which are considered in the process of the update of almost all the existing Rule of Law ratings, the situation does not seem so optimistic. This, in particular, can be explained by the fact that methodologies of almost all the ratings are built on the generalization and averaging principle. The reason for that is pretty simple – none of the organizations responsible for putting together the information is incapable of conducting a grounded and detailed analysis of the judicial systems and taking into account all the factors that directly or indirectly impacts this sphere.

Under some essential criteria, e.g., the absence of corruption in the judiciary or the level of trust of the citizens to courts, the situation in Ukraine even worsened. At the same time, with the development of technologies, it became much easier to get access to state registers and other information, which undoubtedly gave Ukraine additional points and moved the country up in these ratings.

However, according to recent studies, Ukrainians still name the court as the most corrupt institutions and the majority of citizens do not trust judicial institutions. The establishment of the anti-corruption institutions and High Anticorruption Court (HACC) positively influenced the overall scoring of Ukraine in the international indexes and ratings. However, the real problems of the Ukrainian judiciary – the unreformed High Council of Justice (HCJ), absence of the composition of the HQCJ, prevalence of the untrustworthy judges in courts, remain unconsidered by the organizations, composing and updating the above-listed ratings.

It is said to admit that Ukrainian judiciary is politically dependent and filled with the untrustworthy members, who use all the available leverages to preserve the existing system. The judicial reform, which has been traditionally declared by every President at the beginning of his cadency, remains only a political promise. Unfortunately, every Ukrainian President surrenders the temptation to control the judiciary instead of making it truly independent. President Zelensky did not become an exception – the draft law #193-IX on the judiciary, which could establish the effective mechanism of cleansing the judicial governance bodies and form the HQCJ was successfully blocked.

The President took another attempt to introduce the legislation on the judiciary in late June by introducing the draft law #3711. However, this draft law completely contradicts the recommendations of civil society, laid out in the Judicial Reform Roadmap and international obligations of Ukraine. Shortly after, Ukrainian society was stunned by another scandal around the notorious President of the District Administrative Court of Kyiv – the only court, which has the authority to question decisions of governmental bodies of all levels. In this situation, the President decided to wash his hands of the case completely.

These two cases show that the situation in the Rule of Law and Ukrainian judiciary is far more complicated and cannot be reflected by the analyzed ratings. However, they remain a very good instrument for researchers. They can be used as a ground for further in-depth analysis of the progress of a certain country in the implementation of democratic values and standards.
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