Рада з питань судової реформи

Chapter 4. Increasing Efficiency of Justice and Streamlining Competences of Different Jurisdictions

Optimisation of the courts network and streamlining of courts’ competences (jurisdiction) is necessary to ensure balance distribution of cases, while also allowing each jurisdiction to perform its role with requisite degree of fairness. Revamping of jurisdictions at the vertical level is necessary to both deal with case-loads, while also promoting greater uniformity of practice. In addition, information technologies are key tools available to improve both the access to justice and efficiency of the courts’ case and performance management. Efforts in strengthening the e-justice capabilities of the courts will focus on the courts internal (case management systems) and external (websites) information systems (IS), including seeking greater interoperability of the courts IS with those of other justice sector actors. Increased use of e-justice will enable users to apply to a court, pay for the court services, participate in the proceedings and receive all the relevant documentation by electronic means. Judges, in turn, will be enabled to fully manage and track cases electronically, allowing them to more efficiently manage their resources and increase productivity, while improving the life/work balance.

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 4.1 Increased Efficiency through Streamlined Horizontal and Vertical Jurisdictions

4.1.1 Optimisation of courts network, management of court resources and streamlining of jurisdictions 1. Reviewed procedural regulatory framework in all types of process, promoting efficiency in case handling. New courts network in place. Court fees reviewed. SJGB (HCJ, HQC, CJ), SC, HSCs, MOJ, Parliament / Decisions, statutes and rules amended

- Clear-cut criteria and mechanisms for delineation of administrative, commercial and general (civil and criminal) jurisdictions

- Courts network optimised after careful gap analysis and impact assessment, with interests of efficiency and fairness duly taken into account;

- consolidation of courts at various levels (in particular, creation of inter-district courts, consolidation of appeal regions)

- Increased use of court fees and other paid services to cover expenses of the justice sector; higher court fee rates in property and other types of civil litigation, while retaining adequate degree of access to justice;

- Optimised administrative staffing of courts depending on workload of judges

- Problem of temporary workload fluctuations due to unforeseeable increase of cases in the court and staff turnover through the Mechanism of seconding judges to other courts in place

- Improved regulation on obligatory preparatory stage in any type of proceedings, excluding certain types of proceedings where such a stage is irrelevant for effective protection of rights for time reasons (e.g. proceedings related to election process)

- Procedural rules promoting efficiency, including fast-track procedures for small and uncontested claims, (some) administrative offences and misdemeanours

- Administrative offences (strict liability offences) and misdemeanours dealt with by way of simplified procedural arrangements, while providing minimum guarantees requisite for ‘fairness of criminal proceedings’

- Mechanisms in place to ensure timely resolution of disputes and counteract abuse of procedural rights through imposing effective procedural restrictions on liable parties for failure (without good reason) to demonstrate ‘best effort’, provide or conceal evidence etc.

- Sound regulatory basis in place to apply means of alternative dispute resolution, including mediation, arbitration and conciliation; enhancement of list of categories of cases to be resolved by arbitrators or to be considered by courts in simplified proceedings; effective procedural mechanisms in place to prevent consideration of cases in absence of litigation between parties

- In criminal proceedings the decision of the jury can not be appealed.

- Improved the requirements for procedures for appeal and cassation complaints.

- Improved criminal procedure legislation to implement the procedure, depending on the extent of the offense.

- The possibility of failure in case of cancellation of the decision of the lower court, the case for returning to the court of lower level than in exceptional circumstances when it can not be solved appeal or cassation, particularly because of serious procedural violations at the lower level.

2. Reviewed regulatory framework on jurisdictional competences SJGB (HCJ, HQC, CJ),SC, HSCs, MOJ, Parliament / Decisions, statutes and rules amended
3. Reviewed regulatory framework on organisation of courts. Courts network optimised SJGB (HCJ, HQC, CJ), SC, HSCs, MOJ, Parliament / Decisions, statutes and rules amended, budgetary provisions made, new, organigrammes, job descriptions and placement plans prepared and implemented
4. Reviewed HRM rules of courts, introduce secondment to other courts SJA, CJ / Rules amended, practice guides, trainings
5. Reviewed regulatory framework on ADRs MOJ, Parliament / Statutes and rules amended
4.1.2 Development of system of review of judicial decisions to improve accessibility and efficiency of justice, promote uniformity of practice and better reasoning of court decisions [1] 1. Reviewed regulatory framework on role of rules of court and judicial practice in admissibility of and examination of case at all instances

SC, HSCs, Appeal Courts, MOJ, Parliament / Decisions, statutes and rules amended

- Time-limit for appeal calculated from notification of decision on merits (in its full or partial form);

- Ability for party to withdraw or discontinue appeal at any stage

- On appeal in civil and administrative process, higher stamp duty and court fees than at 1st instance

- Reduced rights of 3rd parties in all types of process, including victim in criminal process, to intervene on appeal

- In case of reversal of lower decision, no remittals to lower court as matter of principle; new

- Exceptional nature of review at 3rd instance in all types of process

2. Reviewed regulatory framework on statutory exclusions from appeal and admissibility of appeals (at 2nd and 3rd instance) in civil/commercial and administrative disputes. Clarification of distinction of scope of review on points of fact and points of law in statute, practice and theory, including questions of ex officio powers of higher court and exercise of judicial discretion SC, HSCs, Appeal Courts, MOJ, Parliament / Decisions, statutes amended
3. Reviewed regulatory framework on reconsideration (review) of cases in all types of proceedings SC, HSCs, Appeal Courts, MOJ, Parliament / Decisions, statutes and rules amended
4. Reviewed regulatory framework on legal grounds for appeal in criminal process SC, HSCs, Appeal Courts, MOJ, Parliament / Decisions, statutes amended
Area of Intervention 4.2 Increased Efficiency and Accessibility of Courts through improved Socio-Economic Conditions and Court Facilities
4.2.1 Development of socio-economic conditions at judiciary 1. Reviewed regulatory framework on privileges, other professional guarantees, and social protection of judiciary and courts staff SJGB (HCJ, HQC, CJ), , MOJ, Parliament, SC, HSCs / Decisions, statutes and rules amended

- Judiciary and courts staff are reasonably remunerated and protected through salary, benefits, and insurance plans established by law, depending on their role, experience and other clear and objective criteria

- Judiciary and courts staff are able to perform their functions in secure environment, and are entitled together with their families to be protected by State

- Effective mechanisms in place to complain about failure of State to honour its obligations to judiciary and courts staff

4.2.2 Development of accessibility and of court facilities for users of court services 1. Improved facilities and estate at courts SJA, SJGB (HCJ, HQC, CJ), MOJ / Decisions, feasibility studies, procurement conducted

- User satisfaction surveys used as key factors in deciding on any infrastructure developments in courts

- Projections for required facilities of courts and their foreseen structure and type supported by evidence from studies and reflected in relevant policies

- Functional model of court premises in compliance with the level, specialisation and location, developed

Pilot projects on equipment of court premises in accordance with the developed functional model implemented

- Greater employment of public-private partnerships in provision of all services to courts

- Greater competition between various service providers

2. Reviewed regulatory framework on public-private partnerships (PPPs) in provision of services to courts. SJA, SJGB (HCJ, HQC, CJ), MOJ, Parliament / Decisions, statutes and rules amended, MOUs, reports

Area of Intervention 4.3 Increased Efficiency through Use of Information Systems [2]

4.3.1Improvement in use of information systems (IS) for greater delivery of e-justice services 1. Courts’ management information system (MIS), including electronic case management system, fully operational CJ, HCJ, SJA, HQC, NSJ, Courts/ Decisions, MOUs, feasibility study, Implementation Master Plan, hardware and software in place, trainings, manuals, review reports

- Full electronic management of all institutional functions

- Full electronic case management and tracking (before higher review instances), e-notification, e-summons, e-trial (in some cases), e-payment, random case assignment, audio or video recording of all hearings, internal jurisprudence data-base information system, legislative data-base information system

- Fully licenced electronic case management system, incorporating personal data protection (PDP)

- Developed and approved the action plans for salvation of the system data, and in the case of emergencies.

- Interoperability of IS with those of other State and non-State actors

- User-friendly websites of courts with search engines allowing to link search for legislation with search for practice of SC and other higher courts under that legislation

- Automated or on-line systems for measuring user satisfaction

[5] Also see Sub-Chapter 2.2 below on appeals system reform in criminal process, which additional focus on principles of fairness and defence rights.

[6] For more detailed analysis on interventions in coordinated management of information systems and interoperability, see Sub-Chapter 4.2 below.

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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