Рада з питань судової реформи

Chapter 3. Increasing Accountability of Judiciary

The development of and compliance with high standards of conduct and ethical principles - and transparency in informing the public - provides a vital foundation for the fair administration of justice, and secures members of the judiciary from improper influence, while also fostering public trust and confidence. Various steps are proposed to improve the existing ethical and disciplinary framework, by both making the rules clearer to judges and the general public, while also ensuring that the procedures in cases of a breach ensure the requisite degree of fairness and participation to everyone involved. In addition, steps will be taken for effective investigation of disciplinary breaches, while also helping deal with and prevent any mismanagement or lack of accountability by the judiciary. The mechanism will ensure greater clarity, foreseeability and constant monitoring of application of ethical and disciplinary rules, in particular the rules related to the prevention of the conflict of interest and corruption. Other important tools to increase accountability lay in the review of the question of judicial immunities (while providing safeguards from undue pressure or abuse), and reinforcement of mechanism of publication of income, asset and expenditure declarations, which will be piloted as part of the immediate priorities listed in Part I of the Strategy.

Abbreviations list
ADR Alternative dispute resolution
AP Action Plan
APU/PAU Presidential Administration of Ukraine
ASSETBTC Bar Training Centre
CB Chamber of Bailiffs
CC Constitutional Court
ВНЗ Вищі навчальні заклади
CCBE Council of Bars and Law Societies of Europe
CCLAP Coordination Centre for Legal Aid Provision
CEIS Criminal Executive Inspection
CEPEJ European Commission for the Efficiency of Justice
CJ/CoJ Council of Judges of Ukraine
CJR/JRS Council for Justice Reform (or Justice Reform Council)
CoE CM CoE Committee of Ministers
CoE/CoE Council of Europe
CP Council of Prosecutors
CPE Performance Evaluation Framework
CSO Civil society organizations
DCMIS Detainee case management system
DFATD Department of Foreign Affairs, Trade and Development, Canada
DG Just Directorate-General for Justice and Consumers of the European Commision
DOJ United States Department of Justice
EaP The Eastern Partnership
ECHR European Convention on Human Rights
ECJ European Court of Justice
ECtHR European Court of Human Rights
EPP Evaluation of Prosecutors’ Performance
EU MS EU Member State(s
EU European Union
EUAM European Union Advisory Mission for Civilian Security Sector Reform Ukraine
FLA Free Legal Aid
FoI Freedom of information
GDP Gross domestic product
GOU/GoU Government of Ukraine
HAC Higher Administrative Court
HCCH Hague Conference on private international law
HCJ High Council of Justice of Ukraine
HEI High educational institutions
PCF CoE/EU Eastern Partnership Programmatic Co-operation Framework
PDP Personal data protection
PEE Performance effectiveness evaluation
PEO Private enforcement officer
PFM Public financial management
PG Prosecutor General
PMF Performance Management Framework
PPO Public Prosecutor’s Office
PPP Public-private partnership
PR Public Relations
QALA Quality and Accessible Legal Aid Ukraine Project
RBC Regional Bar Council
RPO Regional Prosecutor’s Office
PQDCs Regional Qualification and Disciplinary Commission
SC Supreme Court
SDP Strategic development plans
SEP Sector expenditure plan
HELP European Programme on Human Rights Education for Legal Professionals
HQC High Qualification Commission
HQDC Higher Qualification and Disciplinary Commission
HR Human Resources
HRTF Human Rights Trust Fund
HSC Higher Specialised Court
IMF International Monetary Fund
IMS Information management system
IOP Interoperability
INL US Department of State Bureau for International Narcotics and Law Enforcement Affairs
IRZ German Foundation for International Legal Cooperation
IS Information system
ISD Internal Security Department
JC see CJ
JIT Joint investigative team
JSRS Justice Sector Reform Strategy
LPO Local Prosecutor’s Office
LPP Legal Professional Privilege
M&E Monitoring and evaluation
MIS Management information system
MOE Ministry of Education of Ukraine
MOF Ministry of Finance of Ukraine
MOH Ministry of Health of Ukraine
MoI/MoIA Ministry of Internal Affairs of Ukraine
MOJ/MoJ Ministry of Justice of Ukraine
MOR Ministry of Regional Development, Construction, and Communal Living of Ukraine
MOU Memorandum of Understanding
MSP Ministry of Social Policy of Ukraine
MTBF Medium-term budgetary framework
NACB National Anti-Corruption Bureau of Ukraine
NALS National Academy of Legal Science of Ukraine
NAPU National Academy of Prosecutors of Ukraine
NBC National Bar Council
NCP National Conference of Prosecutors
NPM National Preventive Mechanism
NSJ National School of Judges
OSCE Organization for Security and Co-operation in Europe
SGS Self-governance system
SGUA Support Group for Ukraine
SIT Special investigative techniques
SJA State Judicial Administration of Ukraine
SJGB Single Judiciary Governance Body
SLA Service-level agreements
SOP Standard operating procedures
SPS State Penitentiary Service of Ukraine
SSU Security Service of Ukraine
TC Training Centre
THB Trafficking in human beings
TOT Training of trainers
UNBA Ukrainian National Bar Association
USAID United States Agency for International Development
USAID FAIR The FAIR Justice Project of USAID
VET Vocational educational training
WG Working Group
Action Implementation Deadline Performance Criteria
End of 2016 End of 2018 End of 2020 Measures/Outputs Responsible Body / Means Outcomes

Area of Intervention 3.1 Increased Accountability through Improved Ethical and Disciplinary Framework

3.1.1 Development of ethical framework 1. SJGB Ethics Committee fully operational SJGB (HCJ, HQC, CJ) / Decision, reports

- Ethics framework for judges and courts staff with clear and foreseeable substantive requirements, publicly accessible and consistent practice in their application

- Institutionalisation of principle of functional (personal, procedural) independence of judge dealing with particular case from other judges

- Institutionalisation of duty of impartiality of judge

- Delineation in practice of ethical requirements (positive principles of conduct) from disciplinary rules (negative prohibitions)

- Clarification in practice of systemic or serious breaches of ethical requirements, giving rise to disciplinary responsibility

2. Dedicated staff assigned at SJGB/CJ to deal with ethics issues SJGB (HCJ, HQC, CJ) / Decisions, contracts, job descriptions, placement plans, trainings
3. Code of Judicial Ethics annotated and updated regularly SJGB (HCJ, HQC, CJ), SC, HSCs / Decisions
4. Rules of Conduct of Courts Staff annotated and updated regularly SJGB (HCJ, HQC, CJ), SJA, SC, HSCs / Decisions
5. Practice guides and training module on ethical framework of judges and courts staff developed, disseminated and updated regularly NSJ, CJ, SJA / Decisions, trainings, publications
3.1.2 Development of disciplinary framework 1. Dedicated staff assigned to deal with disciplinary issues SJGB (HCJ, HQC, CJ), HQC, SJA / Decisions, contracts, job descriptions, placement plans, trainings

- One judicial governance body to examine all disciplinary cases; optimised number of judicial governance bodies in charge of career, performance management and disciplinary liability matters

- Clear, foreseeable and applicable grounds for disciplinary liability, including giving rise to dismissal

- Revised limitation period for bringing judge to disciplinary liability

- Accessible, reasoned, and consistent practice in judiciary ethical and disciplinary matters

- Scope and extent of mens rea (intention, negligence etc.) and considerations of prejudice caused defined for disciplinary liability purposes (with clarification of need for cumulative or separate consideration)

- Dismissal as disciplinary sanction in law and practice; enlarged list of other disciplinary sanctions

- Application of proportionality principle in ruling whether and what disciplinary sanction is to be imposed

- One set of procedures for all disciplinary cases

- Full guarantees of fairness of proceedings in disciplinary cases before judiciary governance bodies;

- Mechanism in place to prevent judge under disciplinary investigation from bringing ordinary court proceedings

- Right to appeal against decision of disciplinary body

2. Reviewed regulatory framework on substantive disciplinary rules, procedures and competent bodies to examine disciplinary cases SJGB (HCJ, HQC, CJ), MOJ, Parliament, HSCs / Decisions, statutes and rules amended
3. Practice guide and training module on disciplinary framework developed, disseminated and updated regularly NSJ, SJGB (HCJ, HQC, CJ), HQC / Decisions, trainings, publications
4. Online system for filing complaints against judges fully operational SJGB (HCJ, HQC, CJ) / Decisions, software in place, trainings, manuals, review reports
5. Statistics on disciplinary cases published and analysed in Judiciary Annual Reports SJGB (HCJ, HQC, CJ) / Reports
3.1.3 Development of internal and external oversight mechanisms to combat and prevent corruption 1. Regulatory framework in place on role and powers of judicial inspectors SJGB (HCJ, HQC, CJ), MOJ, Parliament / Decisions, statutes and rules amended

- Optimised institutional framework on internal anti-corruption oversight, its competences balanced

- Liability established for inspectors for non-performance of duties, avoidance of appropriate response to potential or actual offenses,

- Effective mechanism for investigating cases, hearing individual complaints for disciplinary cases and application of anti-corruption measures within judiciary;

- practical and effective investigation mechanisms of corruption and other serious disciplinary offences committed by judges

- Mixture of discussion-based and incentive/repression-based approaches in disciplinary oversight

- Annual asset, income and expenditure declarations of all judges accessible online

- Regular monitoring/verification of asset, income and expenditure declarations of prosecutors by judicial inspectors and National Agency for Prevention of Corruption; judges holding management positions subject to compulsory full examination; declarations of other judges examined randomly, or in response to relevant communications

- Generic standardised data on results of integrity checks, including information on bringing criminal actions against judges,

- Dedicated continuous training curricula for and regular study visits of judicial inspectors to EU MS, to share best practices

- Functional immunity of judges regulated in clear and foreseeable manner

- Exhaustive list of clear-cut grounds enabling establishment of judge's breach of oath

- Streamlined system of authorisation of the bodies responsible for forming the judicial corps for application of restrictive measures related to limitation of freedom of a judge, excluding the cases of detention in flagante delicto while committing a grave or special grave crime against life and health of a person

- Fully implemented institute of "judicial dossier", which allows to accumulate information about professional activity of each judge.

2. System of “judge's dossier” in place, accumulating information about judge's professional activities SJGB (HCJ, HQC, CJ), MOJ, Parliament, NGOs / Decisions, statutes and rules amended
3. Reviewed regulatory framework on procedure and mechanism of conduct by inspectors of annual integrity checks SJGB (HCJ, HQC, CJ), MOJ, Parliament, HQC, HSCs / Decisions, statutes and rules amended
4. Reviewed regulatory framework on annual asset, income and expenditure declarations of all judges, and their monitoring/verification SJGB (HCJ, HQC, CJ), MOJ, Parliament, HQC, HSCs / Decisions, statutes and rules amended, practice guides
5. Reviewed regulatory framework on judicial immunities SJGB (HCJ, HQC, CJ), MOJ, Parliament, HQC, HSCs / Decisions, statutes and rules amended
6. Institutionalisation of random case assignment, while taking into account needs of specialisation if judges SJGB (HCJ, HQC, CJ), MOJ, Parliament / Decisions, statutes and rules amended
7. Civilian Oversight Board of SJGB (HCJ, HQC, CJ), fully operational SJGB (HCJ, HQC, CJ), MOJ, Parliament, CSOs / Decisions, statutes and rules amended

Impact Indicators for Chapters 1-4

  1. User satisfaction surveys (conducted as part of judiciary performance management system, or by external observers) attest increased trust of society in judiciary generally, and its independence and competence in particular (baseline: 2015; suggested 2016 target - increase by 5%; 2018 target - increase by 15%; 2020 target - increase by 25%).
  2. Trial monitoring surveys conducted by external observers attest improvement of affairs in fairness of proceedings in same selected court, appellate region or jurisdiction (baseline: 2015).
  3. 10 % annual decrease in number of structural violations found by ECHR with regard to decisions taken by Ukrainian judiciary (baseline: relevant ECHR judgments pronounced in 2015; only pilot judgments or repetitive cases taken into account).
  4. 5 % annual decrease in number of cases at ECHR establishing divergences in practice of Ukrainian courts in applying national legislation, or establishing breaches of independence or impartiality of tribunal, or fairness of proceedings or defence rights, or ‘reasonable time’ requirement (baseline: relevant ECHR judgments pronounced in 2015).
  5. Improved implementation of general measures in view of any ECHR judgment regarding Ukraine (baseline: number of pending cases before the COE Committee of Ministers (COE CM) where general measures are indicated at end of 2015; suggested 2018 target - total decrease by 15%, decrease of enhanced supervision cases by 25%; 2020 target - total decrease by 25%, decrease of enhanced supervision cases by 35%).
  6. Progress noted by COE CM in implementation of general measures deriving from Volkov v. Ukraine judgment (baseline: 2015).
  7. 20 % annual decrease in findings by COE CM on failure to enforce individual measures in any ECHR judgment regarding Ukraine (baseline: 2015).
  8. Ukraine’s standing in various relevant international indices relating to performance of judiciary improves, including Governance Indicators and Rule of Law Index (World Bank Institute), World Economic Forum (WEF) Global Competitiveness Report, rankings by Freedom House, World Justice Project (Rule of Law Index), Transparency International (CPI etc.), Bertelsmann Stiftung Transformation Index (BTI), WB Doing Business Index (baseline: 2015).
  9. Acknowledgement of Ukraine’s progress in judiciary reform noted in EU reports and various policy dialogue documents, such as Association Agreement and Visa Liberalisation Action Plan implementation reports (baseline: 2015).

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