JUSTICE SECTOR REFORM STRATEGY 2015-2020
The Strategy Ukraine 2020 defines key objectives, road-map, priorities and strategic indicators of the relevant defence, socio-economic, institutional and regulatory conditions for sustainable development of Ukraine.
Among immediate priorities for action, particular attention is given to justice sector reform, aiming to establish an appropriate level of legal culture in the society, behaviour based on the rule of law and the protection of human rights and fundamental freedoms, and the possibility of recourse to expedient fair and adequate remedies in case of breach.
The Ukrainian system of administration of justice exists for the protection of rights, freedoms and legitimate interests of individuals and legal entities, and of the public interest.
Fundamental principles of systemic reform are defined in this Strategy (hereinafter the Strategy).
The Strategy sets priorities for reforming the justice sector by way of constitutional amendments, legislative and other regulatory reforms, and institutional development.
Particular areas of intervention, actions, results, and indicators for the implementation of this Strategy are listed in a separate Action Plan.
Implementation of this Strategy will promote effective efficient and well-coordinated operation of the justice sector based on the rule of law, accountability to the citizens of Ukraine, independence from political influence, and compliance with EU standards and best practices.
OBJECTIVE AND MISSION OF THE STRATEGY
The Objective of the Strategy is to:
Define priorities for ensuring the rule of law in the administration of justice, compliance with public expectations for an independent judiciary and fair trial, on the basis of European values and standards for the protection of human rights.
The Mission of the Strategy is to:
- Outline the problems and define their causes, which need to be eliminated by way of reforming the justice sector;
- Define areas of intervention, actions, and stages for reforming the justice sector;
- Ensure proper coordination and strategic planning in the reform process;
- Set the stage for the Action Plan to establish expected results and other indicators for implementation of the justice sector reform;
- Increase public confidence in the judiciary and other justice sector institutions.
STATE OF AFFAIRS
According to the Constitution, Ukraine is a State based on the rule of law in which human rights and fundamental freedoms are safeguarded; these principles guide all policy decisions. The authorities are thus required to promote and protect human rights and fundamental freedoms, and respect the rule of law.
However, at this time, the administration of justice is not meeting the high standards set for it.
The main reasons for this situation are:
- Under-developed legal culture in the society;
- Insufficient performance and human resources management capacities;
- Insufficient independence of the judiciary from the executive and legislative branches, including by reason of the existing constitutional provisions;
- Insufficient priority given to streamlining the jurisdiction of courts in all legal relationships;
- Insufficient mechanisms for the protection of individual rights and freedoms, including underdeveloped alternative dispute resolution;
- Insufficient linkages and balance between number of judges, staff, and court workloads; disproportional workload of judges and court staff, and lack of mechanisms for efficient case management, resulting in lower quality of justice;
- Unsound methodological approaches towards setting and handling court fees;
- Inconsistent court practice;
- Underdeveloped budgetary planning and financial management capacities, underuse of information systems and e-justice, including lack of full-fledged electronic case management; Lack of transparency of and low confidence in the justice sector as a whole, and the judiciary in particular.
The access to justice is currently also insufficient, owing to:
- Discrepancy between the formal status of advocates and the actual conditions of their work, creating impediments to the effective exercise of their duties;
- Underdeveloped system of Bar governance bodies and their interaction, lack of independence and performance standards
- Need for improved disciplinary oversight and clarified ethical standards for advocates;
- Insufficient funding and support for the legal aid system;
- Need for improved budgetary planning and financial management, and communication capacities of the Bar governance system.
Considerable shortcomings exist in the enforcement system, including:
- Low level of actual enforcement of court decisions,
- Lack of effective incentives for enforcement;
- Insufficient coordination and interaction between enforcement officers and other public and private institutions.
Shortcomings in the performance by the Public Prosecutor's Office (PPO) and the criminal justice system include:
- Insufficient structural independence of PPO, combined with the impunity and insufficient accountability, lack of compliance of PPO functions with European standards;
- Lack of strategic planning, budgetary and financial management, communication capacities;
- Lack of operational, functional independence and integrity of prosecutors, underdeveloped performance management tools, ethical and disciplinary rules;
- Underdeveloped internal and external oversight tools for fighting corruption;
- Obstacles to structural and operational autonomy of executive investigative bodies;
- Underdeveloped formal and practical channels of communication, including information exchange networks, between PPO, executive investigative bodies, and other authorities and European/international partners;
- Lack of proper IT infrastructure and capacities for using information systems and deliver e-justice services;
- Lack of adversarial approaches in criminal proceedings, not enough practical and effective tools to reprimand prosecutors for violations of the principles of fairness and adversarial proceedings, and other human rights;
- Inconsistency between procedural powers and actual institutional functions of various players at the pre-trial and trial stages;
- Inconsistent practice of PPO;
- Lack of individualised, evidence-based approaches in the prevention of crime, rehabilitation and re-socialisation; insufficient application of probation mechanisms, and limited use of alternative sanctions.
In addition, systemic problems exist in strategic planning and regulatory development within the justice sector institutions, including:
- Excessive focus on short-term action in legislative drafting, lack of systemic vision in the reform of the justice sector from the medium and long-term perspective;
- Lack of strategic planning, proper analysis and research capacities in support of the reform process, including actual regulatory and financial impact assessment of proposed reforms;
- Underdeveloped monitoring and evaluation (M&E) mechanisms;
- Insufficient level of coordination and consultations with relevant stakeholders, including civil society organisations;
- Lack of self-reinforcing dynamics between the justice reform processes and the approximation with EU legislation.
PILLARS AND STAGES OF THE REFORM
The justice sector reform will consist of the following pillars:
- Increasing independence of the judiciary,
- Streamlining judicial governance and the system for appointment of judges;
- Improving competence of the judiciary;
- Increasing transparency and accountability of the judiciary;
- Increasing efficiency of justice and streamlining the competences of different jurisdictions;
- Increasing transparency and publicity of justice;
- Strengthening the Bar and legal aid;
- Improving the enforcement system;
- Strengthening PPO in accordance with European standards;
- Enhancing fairness and defence rights in criminal proceedings;
- Increasing effectiveness of the justice sector in the fight against organised crime and corruption;
- Increasing effectiveness in the prevention of crime and promoting rehabilitation in the execution of sanctions;
- Improving the reform coordination and interoperability of justice sector information systems.
The justice sector reform will take place in two stages:
- first stage short-term regulatory amendments aimed at restoring public trust in the Ukrainian judiciary;
- second stage systemic changes in the regulatory framework, including amendments to the Constitution of Ukraine, and comprehensive building of institutional capacities.
OBJECTIVES, ACTIONS AND RESULTS
5.1. Increasing Independence of the Judiciary, Streamlining Judicial Governance and the System of Appointment of Judges:
- Setting up of transparent internal review system of professional suitability within the judiciary, using objective criteria and fair procedures;
- Review of the appointment systems, ensuring that all appointments or transfers to a particular judicial post are based upon merit and open competition, and that lifetime appointment to a judicial post is guaranteed with no probationary period;
- Allowing for judges secondment to other courts to deal with excessive workloads;
- Development of impartial and transparent procedures for the dismissal or termination of judicial appointments;
- Reducing the likelihood of outside interference in the administration of justice by effective and practical mechanisms that establish liability for intervening in the administration of justice and safeguards against any possibility of political influence in the procedures for appointing and dismissing judges, or holding judges liable for the legitimate exercise of their functions;
- Optimising the methodology of financial management, organisational structure and role of the judiciary governance bodies, in order to contribute to the independence of the judiciary and ensure clear separation of powers; entrusting these bodies with clearly-defined duties to guarantee the independence of a judge, manage the courts and judiciary, represent the interests of judges and the judiciary as a whole;
- Enhancing standards, including ethical obligations, for members of the judiciary governance bodies:
- at first by improving the regulatory framework for the selection procedures for members of such bodies by the congress of judges, advocates, academic and scientific institutions, according to the principles of rule of law, transparency and political neutrality;
- subsequently streamlining the bodies responsible for forming the judicial corps, including, eventually merging the High Council of Justice, the High Qualifications Commission of Judges of Ukraine and, possibly, other judiciary governance bodies into a single body with consolidated powers;
- c) In the medium to long-term perspective, additional improvements in strategic planning, and financial and communication capacities of the judicial governance system, in order to make sure that the judiciary is governed more efficiently, that its budgeting process is based on performance and results.
5.2. Improving Competence of the Judiciary
- Further efforts in performance management to ensure that competitions are held in all appointments to a particular judicial post, and that judges are always evaluated and promoted on the basis of the same transparent criteria; establishing the system of qualifying certification of judges and their regular assessment; introduction of the statutory requirement for increasing competence as one of the main criteria for the promotion of judges, ;
- Improving the system of initial training, including by strengthening the formal link between the initial training and the appointment of judges, introducing an effective mechanism for scrutinising particular information about a judicial candidate from the point of view of integrity and other qualities, revision of the age requirements, and standards for professional experience etc.;
- Improving capacities and distribution of the court staff;
- Comprehensive strengthening of the National School of Judges of Ukraine and the continuous training system;
- Development of the mechanisms to seek greater uniformity of practice through strengthened research and analysis capacities of the higher courts, streamlining the roles of the Supreme Court and other higher instance courts, ensuring their close cooperation with scientific and educational institutions (such as the National Academy of Legal Sciences of Ukraine).
5.3. Increasing Accountability of the Judiciary
- Development of mechanisms to perform oversight and check integrity, notably extended declarations of assets, income and expenditures by the judges and their family members, introduction of proportional penalties for failure to declare or incomplete or false declarations; practical and effective investigatory mechanism to uncover corruption and other serious offences committed by judges, including an effective system for authorising the application of intrusive measures against allegedly corrupt judges and reviewed regulatory framework concerning immunities, retaining only functional immunities of judges;
- Ensuring effective investigation of corruption and other serious offenses committed by a judge;
- Granting the judiciary governance bodies with powers to permit detention of a judge;
- Improving ethical rules, strengthening their clarity and foreseeability;
- Improving the disciplinary framework, including a proportionate system of disciplinary penalties, revision of the statute of limitations for bringing judges to discipline, improved disciplinary proceedings by prevention of court challenges during disciplinary investigations, effective right to appeal against disciplinary decisions;
- Establishing an exhaustive list of clear-cut grounds and circumstances for dismissal of a judge;
- Development of internal oversight tools, including an improved regulatory framework based on the status and duties of judicial inspection, introduction of the judge's dossier.
5.4. Increasing Efficiency of Justice and Streamlining the Competences of Different Jurisdictions
- Revision of the courts system by development of clear-cut criteria and mechanisms to delineate competences of administrative, commercial and general (civil and criminal) jurisdictions; optimisation of the courts network based upon careful gap analysis and impact assessment, duly taking into account the interests of efficiency and fairness; consolidation of the court system at various levels (in particular, creation of inter-district courts, consolidation of appellate regions);
- Step-by-step application of and support to trial by jury;
- Increasing efficiency in the management of court resources, by optimising administrative staffing of the courts, depending on the workload of judges;
- Increasing the 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 protecting access to justice; streamlining the amount of court fees based on the value of the claim or appeal.
- Increasing the attractiveness and prestige of work in the judiciary, including by improving socio-economic guarantees;
- Improving the use of information systems (IS) for greater delivery of e-justice services, introduction of electronic management information systems in courts, including 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; decreasing of court workloads through an equal and impartial case distribution system for individual judges and panels of judges at all stages of proceedings;
- Step-by-step implementation of e-justice tools that will allow users to go to a court, pay court fees, to participate in proceedings, and obtain necessary information and documents in an electronic version;
- Ensuring timely resolution of disputes and counteracting the abuse of procedural rights through effective procedural restrictions on parties for failure (without good reason) to demonstrate best efforts', provide evidence, etc.;
- Increasing recourse to alternative dispute resolution, including through practical implementation of mediation, arbitration, and conciliation; enlargement of the list of categories of cases to be resolved by arbitrators or summary proceedings; establishing effective procedures to prevent consideration of cases in the absence of a legal case or controversy;
- Reducing the burden on higher courts by definition of the categories of cases, with reduced possibilities and levels of appeal;
- Development of the system of review of judicial decisions and re-opening of cases to improve the accessibility and efficiency of justice, reduce the courts' workload, and promote uniformity of practice and better reasoning of court decisions;
- Enhancement of the procedural powers at cassation instance;
- Development of socio-economic conditions for the judiciary;
- Development of instruments and methodologies for evaluating respect by the judiciary of the Council of Europe standards.
5.5. Increasing Transparency and Publicity of Justice
- Balancing the statutory framework for confidentiality with the right to a fair trial and the interests of transparent justice, including by establishing clear criteria for holding proceedings in camera;
- Extension of individual rights regarding transparency and publicity in the judiciary governance; ensuring greater openness of information about the judiciary governance bodies, stages of proceedings and types of decisions;
- Better public access to and openness of a court hearing and decision.
5.6. Strengthening Bar and Legal Aid
- As an immediate priority, determining the types of legal assistance that may be provided only by licensed lawyers, and thereby improve the quality of legal representation and enhancing access to justice;
- Strengthening the Ukrainian National Bar Association as an institution, to ensure that the Bar operates effectively, manages the legal profession, and represents the collective interests of advocates;
- Refining the balance of power between the Bar governance bodies, including the qualification and disciplinary commissions of advocates; improving the system of accountability of the Bar governance bodies and their members;
- Strengthening professional and ethical requirements for advocates and persons intending to become an advocate, and the disciplinary oversight of the profession; clarifying grounds for disciplinary liability, improving disciplinary proceedings, and differentiating the types of penalties that may be imposed on an advocate;
- Development of the initial training system, including procedures for taking the Bar exam, serving an internship, developing the institution of the advocate's assistant;
- Improving the continuous training system of advocates;
- Improving the system for respecting the status of advocates, developing an effective mechanism of bringing officials to liability for violations of the principles of independence. strengthening guarantees for the protection of confidentiality;
- Improving socio-economic, financial, and operational conditions for exercise of the legal profession, by introducing the system of advocates' professional civil liability insurance, granting advocates the right to use a simplified system of taxation, accounting, and reporting;
- Strengthening the information systems management, to establish better provision of e-justice services by advocates;
- Facilitating access to legal aid through improvement of and respect for quality and delivery standards; extension of legal aid to areas of representation beyond criminal cases, improving coverage in the regions, enhancing the quality of legal aid services;
- Ensuring proper financing of the legal aid system from both State and private funding
5.7. Improving the Enforcement System
- Streamlining the enforcement governance system;
- Development of the institution of private enforcement officers, including by creating an independent governance system, mechanisms for admission to the profession, a system of oversight and revocation of licences, and professional civil liability insurance;
- Creation of equal competition between private and State-run branches of the enforcement system; striking a balance between the powers of private and State enforcement officers;
- Revision of the mechanism of remuneration for enforcement officers to improve productivity;
- Developing the initial and continuous training systems according to harmonised objectives, tasks, and professional requirements; harmonised ethical and disciplinary rules for private and State enforcement officers;
- Less formalised and more streamlined stages and terms of enforcement proceedings;
- Promoting balance between creditor's and debtor's rights by practically enabling enforcement officers to reach debtor assets, while putting in place safeguards against abuse, effective incentives for voluntary enforcement of court decisions and sanctions against unwilling debtors;
- Strengthening the information systems management for better provision by bailiffs of e-justice services.
5.8. Strengthening PPO
- Ensuring greater institutional independence of PPO; striking a balance between independence, competence, accountability and efficiency of PPO, including by introducing changes in the prosecutorial governance system, performance management, and professional and continuous training systems;
- Streamlining the responsibilities of PPO and their exercise in accordance with the recommendations of the Council of Europe;
- Creation and effective operation of PPO self-governance bodies as additional safeguards for the PPO independence;
- Ensuring greater functional independence of prosecutors from improper internal influence;
- Ensuring greater balance between the investigative functions of PPO and other law enforcements agencies;
- Improving the ethical and disciplinary frameworks for prosecutors and internal oversight mechanisms, including by introducing extended declaration of assets, revenues and expenditures by prosecutors and their family members;
- Ensuring practical and effective investigation of corruption and other serious offences committed by prosecutors.
5.9. Enhancing Fairness and Defence Rights in Criminal Proceedings
- Providing defendants with a wide range of procedural rights at the pre-trial stage, at trial, and on appeal, ensuring equality of arms in the handling of evidence, greater judicial oversight of detention and other restrictive measures;
- Formalisation of standards of proof for greater clarity and foreseeability of procedural law and practice;
- Extension of jury trials to cover a wider range of crimes;
- Promotion of balance between respect for victim's rights of accessible justice and the defendant's rights to adversarial process;
- Granting the victim additional procedural rights at the pre-trial and trial stages;
- Improvement of regulation of detention on remand;
- Obligatory participation of the defence in all private prosecution cases and certain summary proceedings;
- Improvement of regulation on notification of suspicion, placement on the wanted list, extradition, seizure and confiscation of assets, handling of data in the Unified Register of Pre-trial Investigation, including grounds for and procedure of appeal against actions or failure to act in case of a breach in the data handling.
5.10. Increased Effectiveness of the Justice Sector in the Detection and Prevention of Organised Crime and Corruption
- Development of internal and external oversight mechanisms for increasing accountability and fighting corruption within the judiciary and prosecution;
- Promoting greater application of research, analysis, and risk management to guide crime detection and prevention;
- Improving the substantive and procedural legal framework to bring Ukraine closer to the EU Acquis in criminal justice, most notably legislation in the field of combatting organised crime, including the development of effective mechanisms and procedures to recover the proceeds of crimes;
- Enhancing inter-agency cooperation in detecting and preventing crime at the domestic and international levels, including enhanced cooperation with Eurojust, other EU agencies, and Member States.
5.11. Increasing Effectiveness in the Prevention of Crime and Promoting Rehabilitation in the Execution of Sanctions
- Development and practical application of modern approaches to penitentiary management; further reduction of overcrowding, improvement of prison infrastructure and private sector service provision,
- Development of the ethical and disciplinary framework and internal oversight mechanisms of penitentiary institutions;
- Improving the system of juvenile justice, ensuring the right to education and vocational educational training;
- Further individualisation of sentencing, risk management and improvement in prison security arrangements, development of mechanisms for combatting and preventing ill-treatment in prisons, through external oversight and independent monitoring;
- Development of rules on sentencing; reducing number of sanctions requiring deprivation of liberty;
- Development of the regulatory and institutional framework for probation services, including supervised release on parole;
- Transformation and development of existing penitentiary service employees into a functional modern probation authority; ensuring advanced infrastructure for the probation service.
5.12. Improving the Reform Coordination and Interoperability of Justice Sector Information Systems
- Development of central and local levels of the justice sector reform coordination mechanism;
- Development of strategic planning capacities;
- Improvement in management and interoperability of information systems by the courts, PPO, penitentiary, and other justice sector institutions;
- Development of European and international justice cooperation mechanisms, including signature and review of relevant bilateral cooperation agreements with EU Member States.
STRATEGIC PLANNING AND COORDINATION
Strategic planning and sector reform coordination are of paramount importance, in order to ensure that the sector policy development process is sufficiently inclusive and productive.
Strategic planning will ensure sequenced implementation of actions in support of the justice sector reform. Its content, stages and risks will remain the object of discussion by professional communities, in order to ensure smooth implementation and flexibility for required adjustments.
Reform coordination requires comprehensive cooperation amongst all branches of power and justice sector institutions, taking into account the Action Plan on implementation of the provisions of the Justice Sector Reform Strategy 2015-2020, approved by the Judicial Reform Council.
FINANCING THE STRATEGY IMPLEMENTATION
Implementation of the Strategy and achievement of its objectives require ample financing.
Required financial and human resources should be forecasted while designing and sequencing steps required for implementation of the Strategy.
The Strategy implementation will be funded from the following sources:
- State budget of Ukraine;
- International development projects and programmes, which provide technical and financial assistance;
- Other available sources envisaged by law.
REGULATORY FRAMEWORK OF THE STRATEGY IMPLEMENTATION
The regulatory framework for the Strategy will be ensured through development and adoption of normative acts in accordance with established procedures.
The Strategy envisages key indicators for monitoring and evaluating the implementation.
The aforementioned Action Plan defines more specific actions, expected results (outputs, outcomes, impact), and means to implement the Strategy. Impact indicators will include, in particular:
- Perceptions of public trust in the judiciary;
- Confidence of legal professionals in the judiciary and other justice sector institutions;
- Indicators of improved performance in the justice sector, attested by increased standing of Ukraine in various relevant international rankings.
Head of the Administration B. LOZHKIN
of the President of Ukraine