Рада з питань судової реформи

Chapter 5. Increasing Transparency and Publicity of Justice

The objective is to secure access of individuals to the judicial system and information, in a transparent atmosphere, which promotes participation and oversight, and while minimising corruption and malfeasance. The promotion of transparency starts with a sound and implementable system regarding Freedom of Information, which also addresses the system for protecting State secrets. Only through a legally founded right to access information, which is respected and followed through sound procedures, can citizens determine how well the justice system is respecting their rights. Transparency and publicity in decision-making are also crucial. This includes a) open access to court proceedings and rulings, b) open governance of juridical institutions, c) a sound regime for defamation so that it is not abused to suppress rights, and . Transparency and open communication between the courts and the media is also required, so that information channels remain open, enabling public access to a wide range of sources and perspectives for information.

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 5.1 Increased Transparency through Streamlined Regulation of State Secrets and Freedom of Information (FOI)

5.1.1 Implementation of sound regulatory framework for freedom of information (FOI) 1. Regulatory framework on FOI in place MOJ, Parliament, Security Service of Ukraine (SSU), SC, HSCs / Decisions, statutes and rules introduced

- Implementation of EU FOI requirements, with due account taken of special role of justice sector and need for publicity and transparency for good administration of justice, as well as requisite degree of secrecy for greater efficiency in detection and prevention of crime

- Clear, foreseeable and applicable definition of duties and powers of FOI Agency,

- Mixture of discussion-based and repression-based approaches in investigations within public sector by FOI Agency

- Non-formalistic approach and regularity in FOI reporting by justice sector institutions

- Disciplinary liability for failure to provide public information in all rules regulating justice sector institutions

- Bar engaged in development of framework for FOI and regularly soliciting information under FOI procedures

-Media engagement in soliciting information under FOI, including framework for investigative reporting and protection of journalistic sources

Clear and foreseeable practice of courts on protection of secrecy of journalistic sources

- Increased public awareness of FOI regulatory framework and oversight mechanism

- Building public awareness of the importance of the freedom of information;

- support to the professionals working in this field

2. FOI body fully operational MOJ, SSU, FOI body / Decisions, job descriptions, placement plans, trainings
3. Practice guides and training modules on FOI developed, disseminated and updated regularly FOI body, MOJ, NSJ, BTC, SSU/ Decisions,trainings
4. Uniform FOI reporting system in place in all justice institutions FOI body , CJ, PPO, MOJ, SC, HSCs, NBC, SSU / Decisions, reports
5. Awareness campaigns on FOI FOI Agency, MOJ, GOU / Decisions, campaigns conducted
6. Implementation of a case-based media strategy for the promotion of freedom of information BAR, NBC, MOJ / Decisions, campaigns conducted
7. Collection and publication of the best practices for protection of the right to obtain information, using materials for the training ofournalists and advocates BAR, NBC, MOJ, Media / Decisions, publications
8. Reviewed regulatory framework on FOI BAR, BNC, MOJ, Parliament, SSU, SC, HSCs / Decisions, statutes and rules amended
5.1.2 Balancing statutory framework on confidentiality with right to fair trial and interest of transparent justice 1. Reviewed regulatory framework on State, official, and commercial secrets. CJ, MOJ, MOI, SSU, Parliament / Decisions, statutes and rules amended

- Functional (qualified) rather than absolute approach to what information is protected by secrecy/confidentiality or public

- Requisite degree of secrecy for greater efficiency in national security, crime detection and prevention

- Harmonized legislation covering State, official, and commercial secrets

- Greater access to secret information by legal professionals and civil society organizations

- Clear and foreseeable practice of national courts in cases regarding journalists’ interference in administration of justice

2. Practice guides and training modules on State and official secrets developed, disseminated and updated regularly MOJ, MOI, SSU, NSJ, BTC / Decisions, trainings
Area of Intervention 5.2 Increased Transparency through Publicity in Justice Sector Decision-Making
5.2.1 Extension of individual rights regarding transparency and publicity of courts proceedings. Ensuring greater openness of information about courts, stages of proceedings and their decisions 1. Reviewed regulatory framework on publicity of court hearings and decisions CJ, MOJ, Parliament, SC, HSCs, HAC / Decisions, statutes and rules introduced

- No hearing on the merits of cases take place in judge’s office

- Unequivocal right of media to attend any court hearing which is public

- Clear, foreseeable and applicable definition of scope and extent of restrictions on photographing or recording of court hearings by parties, media or public

- Possibility to citizens and media presence due advance notice of the schedule for court sessions.

- User-friendly keyword-based search tools for all court decisions, with linkages to legislation and rules

- Creation of fruitful working relations between media and judiciary

2. Hearing schedule information system in all courts fully operational CJ, SC, HSCs, HAC / Decisions, hardware and software in place, review reports, trainings
3. Electronic courts case-law database and search engine fully operational CJ, SC, HSCs, HAC, MOJ / Decisions, hardware and software in place, review reports, trainings
4. Establishment of courtroom journalism network NBC, MOJ, SJA / Decisions, MOUs, reports, campaigns conducted
5.2.2 Development of transparent justice-sector governance 1. Dedicated PR/communication capacities of all justice sector governance bodies and sector institutions CJ, PG/PPO, SC, HSCs, NBC, MOI / Decisions, reports, trainings

- Active role and timely statements by justice sector governance bodies in response to perceived threats to independence and fairness of justice by reason of media coverage or public statements of State officials

- Clear, foreseeable and applicable conditions on public access and participation at hearings by all justice sector governance bodies

2. Reviewed Rules of Procedure of justice sector governance bodies CJ, PG/PPO, SC,HSCs, NBC / Decisions

Impact Indicators for Chapters 5-7

  1. User satisfaction surveys (conducted by sector stakeholders, or by external observers) attest increased access to justice in general, and performance of legal aid, Bar, bailiffs, notaries and ADR system in particular (baseline: 2015; suggested 2016 target - increase by 5%; 2018 target - increase by 15%; 2020 target - increase by 25%; targets to be split by institution/type of service).
  2. Trial monitoring surveys conducted by external observers attest improvement of affairs in access to justice in general, and quality of legal representation in particular (baseline: 2015).
  3. 10 % annual decrease in number of structural violations found by ECHR with regard to right to court, fairness of proceedings or defence rights (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 breach of right to court, fairness of proceedings or defence rights (baseline: relevant ECHR judgments pronounced in 2015).
  5. Improved implementation of general measures in view of any ECHR judgment regarding breach of right to court, fairness of proceedings or defence rights (baseline: number of pending cases before 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. 20 % annual decrease in findings by COE CM on failure to enforce individual measures in any ECHR judgment regarding Ukraine establishing breach regarding right to court, fairness of proceedings or defence rights (baseline: 2015).
  7. Annual progress in enforcement of final court judgments in civil and administrative (excluding misdemeanour) matters (baseline: all final court judgments on 1 January 2016; suggested 2016 target - 50% of total final court judgments in civil cases enforced within legally established timelines; 2018 target - 60%; 2020 target – 70%).
  8. State financing of legal aid system at least at the CEPEJ average level in proportion to GDP (baseline: CEPEJ report for calendar year).
  9. Legal aid provided in at least 10% of civil and 20% of administrative (excluding misdemeanour) cases (baseline: pending litigious civil and administrative cases at material time).
  10. 10 % annual increase of cases in ADR (baseline: same point in time one year ago for which annual statistics available; targets to be split per type of ADR/type of process).
  11. Ukraine's standing in various relevant international indices relating to access to justice improves, including Governance Indicators and Rule of Law Index (World Bank Institute), 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).
  12. Acknowledgement of Ukraine’s progress in ensuring access to justice 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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