On 22 September, a side event “Public Participation in the Selection and Assessment of Judges. Ukrainian case” was held as…
Three pillars of the Supreme Court: the administration, facilities and equipment and quality decisions
12 October, Kyiv – The CHESNO movement, as part of the CHESNO. Filter the Judiciary! Campaign, held a round table on “When the Supreme Court will work in Ukraine: conditions and procedures”. At the event, the representatives of the State Judicial Administration of Ukraine, the higher courts’ administration, international experts and experts of specialized NGOs, specialists in the field of law and the judicial system discussed the key formal conditions that must be implemented to ensure the launch of the Supreme Court. The key issues raised in the expert discussion were the development of the structure of the court’s administration, the potential reduction of the staff of the Supreme Court and higher courts of Ukraine, the financial support of the new Supreme Court, as well as the problem of providing the court with the basic infrastructure.
A parcularly important point for discussion was the procedure for selecting and appointing the judge assistants, in particular, the pros and cons of recommendations and appointments, as well as the problem of the lack of status of a civil servant for judge assistants.
Senior analyst in CHESNO. Filter the Judiciary! Ivan Piatak said that the most important issues about the launch of the Supreme Court are the human resourcing and optimization of the Supreme Court’s apparatus: “Will the Article 22 of the Civil Service Law be applied? Can the positions in the High Specialized Courts be considered equivalent to those in the Supreme Court? And will the current positions in these courts correspond to those in the Supreme Court?” He also emphasized the importance of issues of providing the Supreme Court with the necessary facilities and equipment. “This process requires the establishment of liquidation commissions, transfer of property, inventory, etc.”, said Ivan Piatak.
Viktor Kapustynskyi, head of the administration of the High Specialized Court of Ukraine on civil and criminal cases, added that while optimizing the apparatus of the Supreme Court one may face the problem of minimizing actual legal proceedings during the transitional period when at the same time, the Supreme Court is created and four courts are eliminated. “There may be a situation where the new judges of the Supreme Court will already cease to have authority in their courts but they will not yet to operate in the new institution. This period should be as short as possible otherwise the “turbo whole” will appear. In addition, there is no place to appoint a judge yet, since legally, the Supreme Court may emerge very soon but physically – it does not exist yet,” Viktor Kapustynskyi commented on the situation.
He also mentioned the position of judge assistants. In the Kapustynskyi’s opinion, in addition to the judge, the judge assistants are, too, directly related to the court’s decisions, so their civil servant status should be restored. “Moreover, since they are not civil servants now, they are not subject to anti-corruption legislation,” Kapustynskyi said. Also, Kapustynskyi supported the idea of a competition for judge assistants: “Let the competition offer, for example, three candidates for the position of a judge assistant, so the judge would have a choice.”
Tetiana Opanasiuk, deputy head of the legal department, head of the legal expertise department of the State Judicial Administration of Ukraine, stressed out that the State Judicial Administration has projects for organizing the work of the court administration, and that the procedures for preparing the Supreme Court for operation are ongoing. According to Opanasiuk, all the facilities that are needed to enable the registration of the head of the administration, to organize the work of the Supreme Court’s administration, and to open accounts are ready, and these mechanisms can be launched as soon as possible. Also, regarding the issue of providing the funds for the basic infrastructure of the Supreme Court, Ms. Opanasiuk noted that there is a clear specified procedure for transferring money to a newly created institution, which states that they should be financed at the expense of the institution that is being liquidated.
To recap, the apparatus of the four Higher Specialized Courts, from which the administration of the Supreme Court will be formed, according to the personnel chart, has almost 1,500 people. It is obvious that the new Supreme Court will not need this entire staff, however, there is still no draft staffing chart for a new court based on 120 new judges announced.
According to the Deputy Director of the USAID “Fair Justice” Project Natalia Petrova, the Supreme Court will not need such a large apparatus which is available now and which, in the opinion of the higher courts’ representatives, should be transferred to a new court. “It’s not so important how many people will be cut, more importantly, they should have certain guarantees.” In particular, Ms. Natalia expressed her concern about the possible situation when the state will have to maintain the new Supreme Court’s administration and at the same, to ensure social guarantees for the workers who are to be cut. She also stressed out the need to develop an automated digital document circulation in a new court.
Oleksandr Piskun, Head of Democracy and Governance Development program from the Democracy and Governance Development Division of the United States Mission in Ukraine, said that USAID is ready to conduct orientation seminars for the Supreme Court’s judges, create a library for each judge, support with the selection of judge assistants, etc.
The head of the EU project “Support to Justice Sector Reforms in Ukraine”, Dovydas Vitkauskas spoke about the experience of similar institutions in different European countries, the number of courts, and the number of cases in the respective courts. He outlined the main parameters of the caseload and division of responsibilities in the Supreme Court, and also, identified two possible approaches to the structure of the court. “The first option is the inseparability of the Supreme Court’s administration from other courts, which will allow them to be better managed from the outside. The other option is bureaucratization of the court, increasing the internal responsibility of judges for their assistants, and for the staff,” he said.
Maksym Kostetskyi, a lawyer at Transparency International Ukraine, said that creation of the new Supreme Court was a challenge in response to the demands of society to restart the judiciary, which was discredited by collaboration with the executive branch of government. “Judicial reform was also needed in order to restore the confidence in courts. But if the new body is tainted at the very start, there will be no trust in it. Even now, there are no high expectations from the new Supreme Court,” said Kostetskyi. He also added that the automatic transfer of the apparatus of the four courts to the Supreme Court will harm the activities of the newly created administration, since “judge assistants are often also involved in corruption schemes”, and the Supreme Court “needs to ensure the transparency of processes and minimize corruption risks.”
Roman Kuibida, deputy chairman of the Centre of Policy and Legal Reform, dwell on the pros and cons of a non-competitive procedure for the election of judge assistants. “A non-competitive model will enable judges to select the assistants with whom they are ready to work, but it will increase the manageability and internal centralization of the court.” At the end of the discussion, Kuibida expressed the view that the goal of upgrading and clearing the judiciary by creating a new Supreme Court was not achieved. “If there was a hidden agenda to form the court that was needed, then it is obviously achieved. And such a swift way of forming the administration suggested that there was a hidden agenda in creating the new Supreme Court. And there are doubts that we are at least a little closer to the goal that was declared.”