A Step in the Right Direction or What Ukraine Has Already Done for the Corruption Prevention in the Judiciary

Andriy Koshman - Compliance Periscope judicial reform step in the right direction.jpg

As you may know, the Group of States against Corruption (GRECO) monitors the compliance of its 49 member states with the Council of Europe’s anti-corruption requirements. Since its accession in January 2006, Ukraine has been subject to 3 evaluations and on the 8th August 2017, GRECO published its Report about fourth Evaluation Round in Ukraine. Its main objective was to evaluate the effectiveness of measures adopted by the Ukrainian authorities to prevent corruption in respect of parliamentarians, judges, and prosecutors.

With a heart full of confidence I promise you that after familiarizing yourself with referred report you will get a clear understanding of achievements and shortcomings in national legislation, regulations, policies and institutional set-ups in the sphere of fighting corruption and promoting integrity among members of Parliament, judges and prosecutors in Ukraine. In this post, I want to draw your attention to the improvements of the anti-corruption policy and practice in the sphere of the judiciary.

According to a survey mentioned in the Report, foreign investors believe that the biggest obstacles for attracting investment in Ukraine are widespread corruption and lack of trust in the judiciary. Among the most positive actions that the Government of Ukraine has to take to attract foreign investment that were mentioned by businesspeople are (1) re-launching the judiciary by vetting existing members,  (2) hiring new judges, and (3) prosecuting high-level officials for corruption.

Taking into account such devastating effect of grand and petty corruption, the significant judicial reforms have been initiated and then translated into a new legal framework for the judiciary. Amendments to the Constitution, a new version of the Law on the Judicial System and Status of Judges, a Law on the High Council of Justice include many positive features which are in line with European standards. The GRECO experts acknowledged considerable progress that has been achieved by such legislative steps and I would like to make a short review of the mentioned in Report proofs in support of «step in the right direction» statement.

1) Strengthening independence of judges from external influenceThe appointment of judges upon the recommendation of the High Council of Justice (instead of election by the Parliament), the abolition of the five-year probationary period for junior judges and the introduction of lifetime appointment are steps conducive to protect judges from undue influence, and thus providing them with the capability to make fair and unbiased judgments.

2) Limitations on judges’ immunityThe shift of the power to lift judges’  immunity from a political body - the Parliament - to the High Council of Justice and the possibility to detain or arrest judges during or immediately after the commitment of a grave or especially grave crime” (inviolability) deprive judges of unnecessarily high level of protection and remind  about the inevitability of punishment.   

3)    Declaration of assets, income, liabilities and interestsJudges are obliged to submit annual asset declarations via the Unified State Register held by the National Agency on Corruption Prevention (NACP). This provides an open access to the register and checking the content of the declarations submitted.

In addition, judges must annually submit a “declaration on family relations” and a “declaration on judicial integrity” which are available to the public. In the declaration on family relations, judges are to indicate about their relatives who hold or have held positions in specific state agencies during the last five years. In the declaration on judicial integrity, judges have to make several specific statements, e.g. the congruity of their level of life with the property owned and income received by judges and their families, non-commitment of corruption offenses, etc.

4)    Qualification assessment for all and future judges.  This is in order to ensure that judges have the required professional capacity, ethics and integrity for their work. Moreover, representatives of NGOs and media take an active role in this process and may be present at each stage of qualification assessment;

5)    Clear three-level court system with with enhanced efficiency. The 3rd level review is handled by the unified Supreme Court which have replaced the previous high specialized courts and now consists of experienced judges, legal scholars, attorneys. The competition for positions to this newly shaped Supreme Court after slight improvement of legislation could set standards to pave the way for a renewal of the judicial human resources.

Beyond any doubt, abovementioned steps are promising and resonate with the demand of local business and foreign investors. Nevertheless, GRECO experts reiterate that notwithstanding the considerable reform efforts which translated into a new legal framework for the judiciary, practice will yet have to prove the effectiveness of the measures initiated. It remains to be seen how the practice will be shaped.

 

Andrii Koshman is a chief consultant of the committee in the Verkhovna Rada of Ukraine. He is an expert in drafting amendments and supplements to the laws in the area of judiciary and status of judges, civil, administrative and commercial law. Previously he worked for almost four years in the Ukrainian court. He also completed different training programs in USA and EU countries.