Considerations of the Coalition on the "Third Wave" of the Judicial Reform

• Monday, 14 March 2016
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The Coalition once again expounds about the “Third Wave” of the Judicial Reform and presents considerations about the updated version of the legislative changes within the reform framework. Primarily we would like to stress that the draft law in a complete and final form has not been available for the Coalition. Therefore, we rely on that version, which was submitted to the Parliament for the second hearing.

In our opinion, the draft law includes initiatives that would encourage elimination of certain weaknesses in the judicial system and improve regulation. However, in the light of current system crisis and low confidence of the public, it is important that the government expresses readiness with respect to implementation of further reforms. Moreover, the Coalition’s position is that enactment of the presented changes and progressive provisions is of substantial importance for independence of judicial system, reduction of the current crisis and increasing efficiency of changes. In this regard, the system for electronic distribution of cases on the basis of random principle needs to be launched promptly without unreasonable delay. However, prior to launching the system on a full scale, we deem it expedient that the authors of the draft think about legal regulation during the transitional period, so that the court chairmen do not have levers for interference in the case distribution process.

Regardless certain progressive initiatives, the “Third Wave” of judicial reform does not fully respond to the challenges in the judicial system. In addition, the Coalition deems that many initiatives presented in draft law require elaboration and revision, which will be addressed in detail below.

1. Segregation of Competences between the High School of Justice and the High Council of Justice

Unfortunately the package of presented changes no longer provides for the fair and objective segregation of competences between the High School of Justice and the High Council of Justice in the course of students’ selection and admission. The Coalition deems that the Council enjoys unreasonably wide powers in this process. In order to ensure fair process of selecting – appointing the judges, it is significant to exclude participation of the High Council of Justice at the stage of admission of justice students and strengthen the role of the High School of Justice.

2. Evaluation of Judicial Candidates and Voting

The fact that the draft law provides for assessment of candidates by competence criterion through scores should be regarded as the positive fact. However, the Coalition negatively assesses maintaining the mechanism for voting in the process of appointing judges and deems it expedient to appoint judges only based on scoring system, according to which the candidates with the highest scores will be considered appointed at vacant positions. For conducting the process in an unbiased manner, it is also important that each member of the Council, upon completion of an interview, immediately (and not within 5 working days as proposed under the draft law) reflects the score assigned to the candidate and its substantiation in a special electronic program.

3. Transparency of Selecting – Appointing Judges

In order to ensure openness and transparency of the process of selecting – appointing judges, it is significant that the publicity of the received score (as a result of interviews with judicial candidates and contest) and the assessment made by Council Members is guaranteed under the Law, which is not provided for in the presented draft.

4. Legal Regulation of Non-Participation of a Council Member in an Interview Process

Draft Law does not regulate the case when a member of the High Council of Justice does not participate in interviewing all candidates and respectively does not carry out their evaluation. Since this may become the reason for appealing decision based on the ground of procedural violation, it is significant that the law clearly defines regulation of this matter in order to observe interests of each candidate and principles of the fair process.

5. Appealing Decision of the High Council of Justice

Positive innovation is the possibility to appeal decision of the High Council of Justice on Refusal to Appoint Candidate to the Position. According to the draft law, such decision is appealed in the Qualification Chamber of the Supreme Court. For the protection of interests of judicial candidates it is important that there are legal guarantees that would ascertain the reasonability of the Council’s decision, which on its side ensures effective appeal process.

6. Conflict of Interest

Draft Law regulates the issue of conflict of interest in the course of selection (contest), which should be regarded as the positive fact. However, it is advisable that the norms regulating conflict of interest apply not only to the selection – appointment of judges, but also to review of any issue within the competence of the Council, including promotion of judges, transfer to another court without contest, assignment and etc.

7. Composition of the Supreme Court

Regardless critical opinions of the Coalition, the minimum number of the Supreme Court members will still be defined under the Organic Law (at least 16 judges).

8. Election of Court Chairmen

The Coalition was supporting and welcoming that version of the draft law, which provided for election of the chairmen by the court judges themselves. According to the amended draft, the full electivity of judges is changed and instead the High Council of Judges appoints the Chairman from candidates nominated by court judges. Under this provision, the final lever for appointing is retained by the Council, which assigns unreasonably wide powers to it.

9. Election of a High Council of Justice Member by the Parliament

In the draft law, the possibility of electing the fifth member of the High Council of Justice by the Parliament with the simple majority of votes is retained. The Coalition assesses this change negatively and deems that non-judge member of the Council should not be a representative of a specific political force. Pursuant to the Opinion N 10 of the Consultative Council of the European Judges, if non-judge members of the Council are elected by the Parliament, they should be elected by qualified majority, which needs significant support of the opposition.

10. Assigning the Judge by the Court to Review the Case

Presented draft law provides for the provision, according to which, the Court Chairman is entitled to assig the judge to participate in case review in a specialized group (chamber / board) in the same court for the purpose of avoiding impediments to the process of justice. This provision threatens the principle of random distribution of cases.

11. Appointing a Judge without Contest at the Another Court

According to the draft law, in case of emergence of a vacancy, it is possible that the appointed judge, based on his/her consent, is reappointed without contest in the upper instance court as the judge. It is significant that the law clearly defines the selection criteria and the reappointment procedures and the case is regulated when several judges have desire to be appointed in the vacancy available in the other court. For the purpose of ensuring objective use of this mechanism, it is essential to regulate this matter at the level of the law and not at the level of Regulation of the High Council of Justice.

12. Promotion of Judges

The Coalition deems that the criteria and procedures for promotion of judges should be regulated at the law level and not by the High Council of Justice in order to avoid abuse of this mechanism by the Council.

13. Management Department

Draft law provides for establishing a new organizational unit in the High Council of Justice - the Management Department. The impression is created that this department represents an additional controlling body, which has many wide and vague functions threatening autonomy of separate courts. In this regard it should be noted that separate functions of management department are overlapping with the functions of the Council, manager and court chairman.

14. Independent Inspector

One of the innovations provided for in the draft law is establishing the unit of an independent inspector. The draft law does not regulate the procedure of its selection and also gives vague and dangerous provisions for discharging inspector from the position. Therefore, legal guarantees for inspector’s independence are weak.

15. Commencement of Disciplinary Proceedings based on an Explanatory Note

Draft law leaves unchanged the possibility for commencement of disciplinary proceedings on the basis of an explanatory note of the other judge, court or office clerk of the High Council of Justice. The Coalition deems that the explanatory note increases the risks for limiting independence of a judge and interfering unduly in its activities.

16. Publication of Decisions Made in the Course of Disciplinary Proceedings

Pursuant to the draft law, decisions of the Disciplinary Board and Disciplinary Chamber, shall be published at the official webpage upon entry into force, without judge’s identification details unless the judge himself requests publicity of disciplinary proceedings. The Coalition deems that for ensuring the process publicity and transparency, it is important to publish decisions made by the High Council of Justice as well. Also, the judge should be able to request publicity of the process in the High Council of Justice from the very beginning.

We deem it expedient that the authors of the draft law take into consideration the aforementioned issues and elaborate the draft law for the purpose of eliminating the effective deficiencies. As noted earlier, the Coalition regards the draft law as a significant step put forward in the process of judicial reforms though it deems that for resolution of systemic problems, such as deficient and voluntary system of appointing judges, new initiatives should be developed within the shortest term. Otherwise, the possibility to manipulate with improved legislative regulations will still remain in the High Council of Justice, which will not change the situation dramatically. The Coalition expresses its readiness to cooperate in the process of planning next steps for judicial reform.