The new Ukrainian government has backed a bill that would establish performance and lustration reviews for judges in the country’s regular courts. IMR Advisor Ekaterina Mishina discusses the bill in the context of judicial reform in Ukraine and the history of lustration in other post-Soviet states.

 

 

Among the innovations brought to Ukraine by the revolutionary wave is a bill entitled “On the Rehabilitation of Trust in the Ukrainian Judicial System,” which provides the “legal and organizational basis for conducting performance and lustration reviews for judges of regular courts.” According to the media, the new government of Ukraine has already expressed its support for the bill. However, in order to realize the importance and possible outcomes of performance and lustration reviews for Ukrainian judges, it is worth mentioning the changes that have occurred in the judicial system of Ukraine in the last 20 years.

During the first decade of the country’s independence, judicial reforms were of a limited nature. A few measures directed at transforming the then-existing judicial system produced no significant results. The first important changes in the judiciary occurred in 2001 with the adoption of a package of amendments to nine laws pertaining to the organization of the judicial branch, the status of judges, procedural questions, and the status of the Office of the Public Prosecutor. These changes were labeled “small judicial reform.” Even the 2002 law “On Court Organization in Ukraine” was not considered a full-scale judicial reform, since it did not make any fundamental changes to the judicial branch except for the creation of the system of administrative tribunals. Procedural reforms were slow to occur as well. The new Ukrainian Civil Procedure Code, which replaced the 1963 Soviet code, was only adopted in 2004, and the Administrative Procedure Code was not adopted until 2005. Reforms to criminal procedure took the longest to be implemented: the new Criminal Procedure Code was not adopted until April 2012 and went into effect in November of the same year.

Regulations that were supposed to serve as the legal framework of the Ukrainian judicial system became victims of political battles. Draft laws on court organization and the status of judges were introduced to the Verkhovna Rada by then-Ukrainian President Viktor Yushchenko in late 2006 and were passed on the first reading four months later. It is worth mentioning that the then-pro-president minority caucus in the Rada refrained from voting on these bills.

After being passed on the first reading, the bills were sent to the relevant parliamentary committee for revision, where they were combined and recommended for passage on the second reading. However, the chairman of the Supreme Court of Ukraine, who by an odd coincidence used to be a leader of Yulia Tymoshenko’s bloc before taking this office, opposed the combined bill for the following reasons:

  • The legitimacy of passing the two initially introduced bills on the first reading was doubtful.
  • The propositions to reduce the number of judges on the Supreme Court to 16 and to remove courts of cassation with regard to both civil and criminal cases from the jurisdiction of the Supreme Court were considered unacceptable.
  • The constitutionality of a number of introduced changes (e.g., nomination of the presiding judge and his deputies by the president of Ukraine on the recommendation of the Supreme Council of Justice) was questionable.

Despite the fact that it was repeatedly introduced on the agenda, the bill was not adopted until July 7, 2010. Among the positive innovations provided by this law were the foundation for the institution of the jury system and the introduction of more stringent competence requirements for candidates for judicial office (mentioned in chapter 2 of the law), including the requirement of a mandatory six-month education in the national school for judges (Article 69). Chapter 3 established the procedure for appointing judges to lifetime positions and stated that lifetime judicial appointments were subject to consideration during plenary sessions of the Verkhovna Rada (Article 79).

Lustration is especially relevant for countries where the judicial system is marked by the Soviet judicial mentality and accusatory bias in the exercise of justice.

Considering how long it took for these changes in the judicial sphere to be implemented, the introduction of a bill directed at restoring public confidence in the judicial system and envisaging performance and lustration reviews for regular court judges should only be encouraged. The objectives of the bill are very clear: according to Article 1, judicial performance and lustration reviews are aimed at:

  • establishing the rule of law and justice in society;
  • rehabilitating public trust in the judicial system of Ukraine;
  • removing from office persons holding judicial positions whose expenses and real material wealth do not correspond to their official income;
  • dismissing persons whose professional qualifications fail to meet the requirements of the judicial position they are holding;
  • dismissing persons who issued judgments directed at restricting citizens’ constitutional rights and freedoms, including violations of the rights of voters and the right to assemble peacefully or in connection with participation in peaceful demonstrations; and
  • reducing corruption levels in the regular court system.

The responsibility to conduct performance evaluations of judges will supposedly be vested in the High Qualification Commission of Judges of Ukraine. In order to conduct the lustration reviews, “a special commission . . . for the evaluation of regular court judges composed of 17 members” is to be created. Four members of  this commission are to be nominated by the Supreme Council of Justice; four by the High Qualification Commission of Judges of Ukraine; three by the Cabinet of Ministers of Ukraine, who are intended to be representatives of the public; and six by the Verkhovna Rada, two of whom are intended to be judges.

Article 4 of the bill stipulates that the evaluation of judges should take into account the following:

  1. Rulings passed by the judge sitting alone or on a panel on cases connected with the Ukrainian mass protest demonstrations after November 21, 2013
  2. Rulings passed by the judge sitting alone or on a panel on cases linked to the elections to the Verkhovna Rada of Ukraine, fourth convocation
  3. Rulings passed by the judge sitting alone or on a panel with regard to persons recognized as political prisoners
  4. Rulings passed by the judge sitting alone or on a panel directed at considerably restricting citizens’ constitutional rights and freedoms
  5. Decisions of the European Court of Human Rights with regard to established violations of the Convention for the Protection of Human Rights and Fundamental Freedoms by Ukrainian national courts
  6. The existence of disciplinary proceedings against a judge and the nature of disciplinary actions taken
  7. Completeness and correctness of information supplied in the income and expense declarations of judges and members of their families

Judges who fail to pass this evaluation will be subject to suspension from the courts with the prospect of removal as a result of the breaking of their oaths and will not be able to be appointed or elected to judicial office for five years after their dismissal (Article 5).

Judges who fail to pass the performance review will be subject to tougher consequences. They will be suspended from the courts with the prospect of dismissal.

Despite the importance of its objectives, the bill as a whole gives the impression of incompleteness and lack of insight. The following shortcomings are the most evident:

  • This bill proposes conducting performance and lustration reviews only for regular court judges and does not affect either judges of the administrative and economic courts or Constitutional Court judges.
  • The idea of vesting the responsibility to conduct the performance reviews, as a result of which a judge may be subject to dismissal, in the current High Qualification Commission of Judges of Ukraine will most likely end in a fiasco. This commission is composed of the same judges who will be undergoing review and who are unlikely to be neutral and impartial in reviewing the performance of their own colleagues. Reviews that can entail such serious consequences should under no circumstances be conducted by insiders of the judicial system, but by independent experts.
  • The “criteria for the evaluation of the judges” (Article 4) are described in depth, whereas the performance review is presented very poorly and superficially. The criteria to be used in the performance reviews are not mentioned at all, and it is unclear who will be responsible for developing them.

Lustration, which was used both in a number of post-socialist countries, such as the Czech Republic, Poland, and Germany, and in some former Soviet republics, such as the Baltic states and Georgia, proved to be an effective and necessary instrument for transforming post-totalitarian states. Lustration is especially relevant for countries where the judicial system is marked by the Soviet judicial mentality and accusatory bias in the exercise of justice. May God help Ukraine in this undertaking. We in Russia will follow its progress with envy.

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