Analysis of the Strategy for the Development of Judiciary and Constitutional Justice for 2021-2023
13.03.2021
Today, the text of the Strategy for the Development of the Judiciary and Constitutional Justice for 2021-2023 appeared in the media. Adoption of the document in its current form will not solve any problems of the judiciary and will only increase the influence of dishonest judicial officials.

The DEJURE Foundation found the main flaws and minor advantages of the published text document.
The Strategy is a 20-page document, which for the most part has general wording, which can be interpreted quite broadly (both in the sense of reforms and for the purposes of preserving the status quo); does not contain any clear criteria for achieving the goals of the Strategy, which could indicate its successful or unsuccessful implementation, but is richly dotted with the classical Ukrainian chancellery such as "improvement", "expansion", "compliance", "optimization", etc.

The Strategy is designed for 2021-2023, but it can already be concluded that it will not be implemented in such a short period of time, not to mention that the implementation of some of its provisions requires a clear understanding of the sequence, which the document does not provide.

The Strategy has not been officially published, although President Zelensky has repeatedly announced that it is about to be presented to the public. According to our sources, the Strategy was distributed among diplomats at the Ukraine30 Forum as a final document. During the presentation at the Forum it was noted that the Strategy was developed by members of the Legal Reform Commission under the President (and not by the Commission itself). And this wording seems correct, as the Commission itself did not consider and approve the document. Its members only had the opportunity to comment, whereafter the text was revised by an unknown author or authors, apparently from the Office of the President.

Despite some positive provisions, the text of the Strategy is full of insignificant aspects of the justice system and contains many ambiguous provisions that are likely to be used to preserve the influence of corrupt judges in the judiciary.

Please see our detailed assessment of the most important provisions of the Strategy below.
The High Qualification Commission of Judges (HQCJ)
Formation and status of HQCJ
needs to be specified
The provisions of the Strategy regarding the formation of the High Qualifications Commission of Judges are too general and will not provide a new quality of the body, even if they are formally implemented.

"Participation of international experts in an open competition with a transparent procedure" does not guarantee their decisive role and does not rule out that the notorious High Council of Justice (HCJ) will make a final decision on the composition of the new HQCJ. Presidential draft law 3711-д formally corresponds to this wording but does not ensure the formation of an independent HQCJ. The fact that HQCJ will establish its own regulations is a desirable provision, but without excluding the influence of HCJ on the formation of HQCJ, this provision will not apply (paragraphs 3-4 of clause 4.2.1).
Negative
The Strategy stipulates that in the "future" the HQCJ should be subordinated to the HCJ. This contradicts the HQCJ independence provision. It is also not specified under which conditions such subordination should take place.

Given that the Strategy is designed for 2021-2023, this should happen by 2023. It is doubtful that by then it will be possible to reform the corrupt HCJ, and HQCJ will have time to carry out all selection procedures for vacant positions and complete the qualification assessment of judges (paragraph 6 of clause 4.2.1).
Other issues
Negative
The strategy proposes to improve the procedure for filling vacancies in local courts with "separate" competitive procedures, taking into account the criteria of integrity and professionalism (paragraph 1 of clause 4.3.1).

The introduction of such "separate rules" can be used to increase the impact of the corrupt HCJ on this procedure. For a long time, the unreformed HCJ and the notorious Pavlo Vovk urge to simplify the procedure for appointing judges to vacant positions to give the HCJ additional powers in this procedure.

Obviously, it is absolutely unacceptable to give new powers to the HCJ before it is cleared of members of low integrity as simplifying the procedure for appointing judges is almost guaranteed to reduce the quality of their integrity checks. Moreover, it is necessary to introduce an integrity check of candidates for vacant positions in the first-instance courts by involving the Public Integrity Council which is not mentioned in the Strategy.
High Council of Justice (HCJ)
The status of the HCJ and the integrity of its members
needs to be specified
Improving the procedure for selecting members of the High Council of Justice with the involvement of international experts and verifying the integrity of current HCJ members is formally in line with the obligations in the Memorandum with the IMF and the EU, but is too general and needs to be specified.

The participation of international experts is already provided for in Law 193-IX, but the unreformed HCJ has sabotaged this process using the excessive powers given to it by this law (paragraph 5 of clause 4.2.1)
Negative
The provision on the establishment of an "autonomous personnel and disciplinary body" at the HCJ is obviously in line with the provision on the subordination of the HQCJ to the HCJ. Such changes cannot be introduced before the formation of an independent and reformed HCJ (paragraph 7 of clause 4.2.1).
Negative
The provision on "strengthening the organizational and methodological activities of the HCJ and coordinating judicial governance by improving the regulatory and organizational mechanisms for the judicial governance system" (paragraph 11 of clause 4.2.1) is extremely confusing and absurd.

Such meaningless wording will be used in the future to further unreasonably strengthen the role of the HCJ in the judiciary. According to our information, the previous version of this item was about strengthening the HCJ functions to form a "pyramid of the judicial system." Any reference to the role of the HCJ is unacceptable as long as this body is formed of judges of low integrity.
The status of the HCJ and the integrity of its members
Negative
Powers of the HCJ to recall judges who have resigned however have passed the qualification assessment and the integrity checks – previously the strategy suggested to return to office all judges of low integrity who resigned because they did not want to pass the qualification assessment.

And although the new version of the Strategy is considering only the judges who have successfully passed the qualification assessment, it is still precarious because the HQCJ has given the green light to many judges of low integrity. Moreover, as long as the HCJ is not reformed, granting additional powers to this body is a dangerous step (paragraph 4 of clause 4.1.4).
Negative
The powers of the HCJ to appoint presidents of the courts, if judges themselves do not elect them for a long time, is a return to the infamous practice that existed before 2014.

At that time, the judiciary was governed by the HCJ, through which the "vertical power structure of the judiciary" was formed. The presidents of the courts must have exclusively representative functions, alternatively, this position must be abolished (paragraph 14 of clause 4.2.1).
Negative
The HCJ's power to coordinate budget requests for court funding is another opportunity to control the courts by making them dependent on the HCJ, which can reward loyal courts with a generous budget and punish the independent. The budget planning system must preserve the independence of each court (paragraph 7 of clause 4.2.2).
Disciplinary liability of judges
Positive
The positive provisions of the Strategy are the clauses on the return of criminal liability of judges for intentionally unlawful decisions; termination of the resignation of a judge in case of disciplinary misconduct; suspension of a judge from an administrative position synchronized with the suspension from the administration of justice (paragraphs 7, 8, 10 of clause 4.3.2).
District Administrative Court of Kyiv (DACK)
Positive
The Strategy envisages the transfer of part of the exclusive jurisdiction of the DACK to the Supreme Court, and the further creation of a separate court to hear cases against national authorities, involving international experts in the selection of judges for this court. These provisions are fully in line with our vision from the Judicial Reform Map and are positive.
Public Integrity Council (PIC)
questionable provision
The Strategy proposes to "improve" the regulation of public bodies (apparently the Public Integrity Council and the Public Council of International Experts) to ensure "transparency of activities, the validity of decisions, the responsibility of their members" (paragraph 11 of clause 4.2.1).

The clause is worded in such a way that a person out of context may conclude that there have been serious violations in the activities of such bodies that have led to abuse of their powers. On the contrary, the scandalous decisions of the HQCJ and the HCJ led to the appointment of dishonest judges.

It is necessary to improve the regulation of the PIC to strengthen its institutional capacity (including state funding), provide the PIC the right to veto the appointment of judges who have received a negative opinion from the PIC, provide for the PIC to participate in competitions for courts of the first instance and initiate disciplinary proceedings against judges, as proposed by the Judicial Reform Roadmap.
The Constitutional Court (CC)
positive
The Strategy envisages the introduction of the integrity check mechanism in regard to the current judges of the CC. It also introduces a transparent procedure for competitive selection of judges of the CC with the integrity check, involving international experts (paragraphs 1 and 2 of block IV of section II). This approach is fully in line with the concept developed by public experts and the recommendations of the Venice Commission.
Other issues
positive
Reform and development of arbitration courts – the general wording of the provision corresponds to our vision and the draft law № 3411, which is currently being considered in the parliament (paragraph 5 of clause 4.1.5).
negative
The provision on "preservation of the capacity of the staff of the HCJ and the HQCJ" does not contain a single word about the professionalism and integrity of the employees and can be considered as mere preservation of old personnel. (paragraph 10 of clause 4.2.1).
needs to be specified
The development of a judicial portal for case management and judicial statistics is a complete abstraction without clear requirements for the introduction of an open data format, despite the fact that the Cabinet of Ministers has recognized this information as a priority (paragraph 15 of clause 4.1.4).
What problems of the judiciary does the Strategy ignore?
  • In 2019, the High Qualification Commission of Judges was disbanded on the grounds that it did not hold a quality competition for the Supreme Court and failed the qualification assessment, therefore, hundreds of dishonest judges got the "green light". During the parliamentary elections, the "Sluha Narodu" party supported the idea of reviewing illegal and unmotivated decisions of the HQCJ regarding the positive assessment of judges of low integrity by signing the Agenda for Justice. However, the Strategy simply proposes the formation of a new HQCJ and makes no mention of the need to review its illegal decisions despite the fact that the review of such HQCJ decisions was supported by the Venice Commission in its opinion on the presidential draft law №1008;

  • Another promise of the "Sluha Narodu" party on the Agenda for Justice is the establishment of a mixed court for commercial disputes, the majority of which will be professional arbitrators delegated by the business community. The Strategy does not provide for the establishment of such courts;

  • The Strategy is silent on the issue of legal education reform although the Legal Reform Commission has a separate group dedicated to this issue. The Agenda for Justice and Justice Reform Agenda supported by the "Sluha Narodu" party and President Zelensky, call for higher standards of legal education, a single qualifying examination for legal professions, implementation of international standards in legal education, and access to legal professions (judges, lawyers, prosecutors). The Strategy does not envisage these provisions;

  • The Strategy does not say a word about the institutionalization of the Public Integrity Council, supported by public experts and G7 Ambassadors. The HCJ should receive budget funding for its activities, and in addition to its current powers, the HCJ should be able to file disciplinary complaints against any judge on its own initiative outside the qualification assessment with the automatic opening of disciplinary proceedings. The HCJ also needs to be able to initiate monitoring of judges' lifestyles before the National Agency on Corruption Prevention (NACP). And also to increase the threshold for overcoming the negative opinion of the HCJ on the judge to 15 of the 16 members of the HQCJ;

  • The Strategy should provide for the establishment of a separate chamber in the Criminal Court of Cassation within the Supreme Court, which will review the decisions of the High Anti-Corruption Court ( judges should be elected according to a procedure similar to the selection of judges of the High Anti-Corruption Court);

  • The Strategy should stipulate that the Congress of Judges appoints judges of the Constitutional Court, members of the High Council of Justice, and the Council of Judges through electronic voting, in which all judicial corps participate.
DJR
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