I. Reforming the courts Judicial reform was launched by the Law of Ukraine "On the Judicial System and Status of Judges" dated July 7, 2010 and other legislation. It’s aimed at solving problems of the judiciary power, simplifying existing legal procedures and strengthening guarantees for citizens that their case is examined in a reasonable time. It was be implemented taking into account the previous opinion of the Venice Commission, except for those concerning amendments to the Constitution of Ukraine.
The main achievements of judicial reform are:
ü introduction of a transparent and competitive selection of candidates and special education of such persons.
The subject of judicial training is closely related to the status and independence of judges, and thus in order to prevent interference from other authorities to this process the whole system of judicial training, including selection of educational institutions that will carry out the process of training judge candidates, is fully subordinated to the judiciary - High Commission on Qualification of Judges of Ukraine and the National School of Judges of Ukraine;
ü eliminating cumbersome system of judicial qualification commissions in the Autonomous Republic of Crimea, Kyiv and Sevastopol, and establishing a single agency responsible for selection of judicial candidates - High Commission on Qualification of Judges of Ukraine.
Establishing a single authority helps to set unambiguous criteria for evaluating candidates for the position of judge, as well as formulating a common practice of disciplinary responsibility for judges;
ü Supreme Council of Justice and the High Commission on Qualification of Judges of Ukraine are primarily responsible for the appointment and the election of judges. Thus, other state institutions are denied every probability to affect decisions in this sphere;
ü judges to administrative positions in courts are appointed by the High Council of Justice, which is an independent collegial body.
Through amendments to the Law of Ukraine "On the High Council of Justice" order the procedure of its appointment ensures a majority of 11 judges in the 20 members of the High Council of Justice. In order to ensure more fundamental reform of the High Council of Justice and to implement European standards enshrined in the principle of formation of an independent body with the majority of judges elected by their peers, it is necessary to amend the Constitution of Ukraine on bodies that appoint members of the High Council of Justice;
ü promotion of judges, i.e. their transfer to higher courts is governed by objective criteria, important of which being the time of service as a judge.
This situation can prevent cases where a person without experience in the judiciary is immediately appointed to courts of higher instances;
ü elimination of military courts, the existence of which is not consistent with the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the protection of every person by an independent and impartial court;
ü improvement of procedural law paved the way for the unified approach to the application of substantive law high specialized courts and created the possibility of creating a unified court practice.
In fact, the introduction provides case the nature of judgments of the Supreme Court of Ukraine, which will determine how to apply the relevant provisions of substantive law on which there are different approaches in the courts of appeal;
ü optimization and standardization of the procedure for all general courts: courts of appeals are denied the authority to direct the case for a new trial thus obliging them to make decisions on the merits of case;
In order to expedite proceedings opportunity was introduced to summon the subject of authority by sending email or fax message;
ü increasing the salaries of judges so to guarantee the independence and impartiality of judicial decisions;
ü introducing the ban to award judges for the administration of justice, which is often used as a gratitude for decisions in specific cases;
ü improvement of the procedure of bringing judges to disciplinary responsibility, in particular concerning implementation of safeguards for judges who are under disciplinary proceedings.
The Law of Ukraine "On the Judicial System and Status of Judges" implemented adversarial procedure of bringing judges to disciplinary responsibility and the right to defense, including explanations, use of representative and appeal of disciplinary proceedings. Improvement of disciplinary responsibility of judges consisted of providing more concrete concept of "offense" and determining the list of actions of judges that can be qualified as grounds for judicial discipline. The abovementioned constitutes a guide for a judge about what behavior is unacceptable in the administration of justice;
ü reducing the role of chief judges in the proceedings leading to the growth of the authority and independence of judges;
In particular, in some kinds of court proceedings the head judge is denied the right to decide on the disqualification of a judge, extra time to examine the case, distribution of cases among judges;
ü introduction of automated assignment of cases, which aims to ensure the objectivity of the referral of cases to judges and absence of influence of the process by unauthorized persons;
ü significant reduction of time and simplifying proceedings in civil, administrative and economic courts.
Simplified form of the trial (improvement of writ procedures in civil proceedings, shortened administrative proceedings) in certain uncomplicated types of cases is introduced. Certain procedural rights of the parties are adjusted and deadlines of their implementation are set in order to deal with blocking cases and ensuring higher effectiveness of the trial. Thus, despite the structural features of the judicial system (four levels of courts) that naturally cause delays in the proceedings, there are certain legislative steps aimed at reducing procedural terms, and contribute to speeding up the cases, without affecting the quality of judicial decisions.
II. Reform of the prosecution
Adoption by the Verkhovna Rada of Ukraine in 2012 of the Law "On Amendments to Certain Legislative Acts of Ukraine concerning improvement of the prosecution" was an important step towards the reform of the prosecution, reduction and optimization of its powers, and nature of the legal essence of acts of the prosecutor.
The positive aspects of this act are:
ü reducing the number of prosecutor acts and changing legal consequences of their application.
The law denies prosecutors the right to make regulations and protests approval of which required from individuals and businesses unconditional and immediate execution. After this law took effect the prosecutor act does not entail automatic suspension or termination of the legal act, permits, work or services and does not impose additional obligations on the person with which it shall immediately comply;
ü the only prosecutor act that remains is a statement in which the prosecutor has the right to specify the violations and the need to address them.
However, in case when the prosecutor’s declaration is dismissed, the prosecutor has the right to address the court to eliminate relevant infringements. The court’s participation in the dialogue between the prosecutor and the person or entity will reduce the impact of improper influence on the activities of these persons, including business, by the prosecution;
ü approach to the procedure of prosecutorial audit of supervision over the observance and application of laws was significantly modified.
Now these audits are carried out by the prosecutor only after passing and submitting a resolution to the entity or person that is audited, that states clear grounds for inspection based on the specific facts of a violation of law.
ü response to the appeal by private and legal persons can be conducted only after the prior review by authorized executive bodies, local authorities or after failing to make the decisions on these issues in an established period by them.
This approach aims to reduce the interference of prosecutors in those spheres, where the supervision over the legitimacy is conducted by other supervisory authorities.
ü restriction of the list of grounds for representing citizen’s interests in the court.
Participation of the prosecutor on the side of one of the actors gives him an advantage over the other party, and in view of the role and status of the prosecutor it creates the risk of improper influence on a judge in the decision. In this regard, the participation of the prosecutor on the side of any person is possible only in those cases, when it is really necessary to protect person’s rights and interests. The law foresees such cases: citizen’s inability because of physical condition, minor age, elderly age, incapacity or limited legal capacity to protect their rights or realize their procedural powers.
In July 2012 the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Advocacy and Advocacy Practice” (entered into force on August, 15 2012). It comprehensively reformed principles of advocacy in Ukraine according to the international democratic standards. It foresees that the professional lawyers will provide professional legal assistance to anyone who needs it. The law includes the conclusions of the Venice Commission to the bills On Advocacy, previously sent by Ukraine to the Commission.
In particular, the new law:
On January 1, 2013 the reforming of the system of the secondary free legal aid started. Providing of this aid is foreseen by the requirements of the Criminal Procedure Code of Ukraine, the Code of Ukraine on Administrative Offences, Laws of Ukraine “On Free Legal Aid”, “On Advocacy and Legal Practice”, “On Police”, “On the State Border Service”, that oblige the state to ensure the providing of the free secondary legal aid (hereinafter - FSLA) using a fundamentally different approaches, namely:
ü the list of the categories of persons who are guaranteed to be provided by the FSLA, especially at the beginning of the criminal process, is significantly expanded;
ü the defenders are appointed by the special centers of free secondary legal aid (hereinafter - Centers) that minimizes the risks of illegal influence on the professional activities of lawyers, and removes institutional conflict of interests between the state prosecutor’s and investigator’s side on the one hand, and defender’s side on the other hand;
ü the amount of the lawyers' fees is significantly increased;
ü the conditions to enable lawyers to use the material and technical base of the Centers during the providing of the FSLA are gradually creating.
ü the lawyers began to provide free secondary legal aid for the persons:
- who are under administrative detention;
- who are detained on suspicion of a committed crime;
- who are chosen to be in detention with the purpose of preventive measure;
- according to the provisions of the Criminal Procedure Code of Ukraine the defender is involved by the investigator, prosecutor, investigating judge or by the tribunal for conducting the protection or for the purpose of a separate particular act in criminal proceedings against them.
From January, 1 2014 the list of categories of persons, who have to be provided by the free secondary legal aid, will be expanded. From January 1, 2017 this type of legal aid will be provided to all vulnerable categories of persons defined by the Law of Ukraine "On Free Legal Aid," particularly in civil and administrative cases.
The most important step in reforming the Ukrainian criminal justice was the adoption by the Verkhovna Rada of Ukraine in April 13, 2012 of the new Criminal Procedural Code of Ukraine (went into force November,20 2012), which is based on:
- establishing criminal proceedings on the basis of human rights and freedoms;
- ensuring the principles of competitiveness and equality in criminal proceedings both for the prosecutor’s and defender’s sides;
- improving and optimizing the criminal proceedings and increasing the efficiency and effectiveness of criminal justice.
In its conclusions the experts of the Council of Europe have indicated that the development of the Criminal Procedure Code of Ukraine was accompanied by "positive cooperation of Ukrainian authorities with the experts of the Council of Europe throughout the legislative process," and therefore its approval "may indeed be considered the implementation of a solid foundation for making an honest, fair and effective criminal justice system". In addition, the Criminal Procedure Code of Ukraine was further examined by the Directorate General on Human Rights and Rule of Law of the Council of Europe.
Innovations of the Criminal Procedure Code are in particular:
The procedural oversight of the investigation is conducted by the prosecutor, who gives the orders to the investigators and ensure the supervision of the laws by the authorities that have conducted the pre-trial investigation; the stages of pretrial investigation is now united in one, which begins running from the date of receiving by the law enforcement agencies the information about the crime that must be included into the Unified Register of pre-trial investigations; for ensuring the independent procedure of appointment the investigative judges, they are elected at the local courts’ meetings of judges.