Table of Contents.
PART ONE: JUDICIAL INDEPENDENCE IN GENERAL
- 1. Basic Rules for an Independent Judiciary in the Framework of Constitutional and International Provisions.
- 2. Judicial Independence in Countries of Central and Eastern Europe.
PART TWO: REMARKS UPON THE DRAFT JUDICIAL CODE OF UKRAINE AND THE DRAFT LAW OF UKRAINE ON THE JUDICIAL SYSTEM AND STATUS OF JUDGES
- 3. The Judicial Power (Or: How Article 1 Could Be Redrafted).
- 4. Guarantees of Independence of Judges.
- 5. Irremovability and Immunity of Judges.
- 6. High Council of Justice.
- 7. Meetings and Conferences of Judges. Congress of Judges.
- 8. Self-Government (?) of Judges.
- 9. Judicial Selection and Appointment.
- 10. Appointments of the Heads of Courts and Judicial Career.
- 11. Legal Training of Judges.
- 12. Judicial Ethics.
- 13. Political Activities.
- 14. Disciplinary Accountability.
- 15. Suggestions Concerning the Matter of Disciplinary Accountability.
- 16. Judges' Working Conditions and Economic Security.
- 17. Constitutionality Review.
- 18. Distinction between "Civil" and "Economic" Jurisdictions.
- 19. The Quest for Uniformity in Case-Law.
- 20. Exceperts from the Italian Constitution (Provisions Concerning the Judiciary).

1. Basic Rules for an Independent Judiciary in the Framework of Constitutional and International Provisions.

One of the fundamental conditions for what is called the "Rule of Law" is undoubtedly represented by the existence of a strong and independent Judiciary. In a State that is ruled by the law the Judiciary must be considered as one of the three powers, at the same level as the Legislative and the Executive Powers, and fully independent of these latter.

This principle has always been more or less enshrined in most of the Constitutions of the world; sometimes even in those countries where the judiciary was (or still is) not independent at all. That's why this main rule risks to remain just a theoretical one, if it is not surrounded-in the very text of the Constitution, or at least in the statutes governing the administration of justice-by some other principles, which can be drawn from the Constitutions of most of the Western European countries, as well as from the most important international documents concerning the matter of the independence of the Judiciary.

Let us see, first of all, what these international documents are.

• The Universal Declaration of Human Rights approved by the U.N. in 1948 (whose Article 10 provides for as follows: "Everyone is entitled in full equality to a fair, and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him").
• The European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome in 1950 (whose Article 6 provides for that "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law").
• The United Nations "Basic Principles on the Independence of the Judiciary", approved in 1985.
• The "Judges' Charter in Europe", adopted on March 20th, 1993 in Wiesbaden (Germany) by the European Association of Judges, regional group of the International Association of Judges.
• The Recommendation No R (94) 12 of the Committee of Ministers of the Council of Europe to Member States on the Independence, Efficiency and Role of Judges, adopted on 13 October 1994.
• The European Charter on the Statute for Judges of the Council of Europe, approved in Strasbourg on 8-10 July 1998.
• The "Universal Charter of the Judge", unanimously adopted in November 1999 in Taipei (Republic of China-Taiwan) by the International Association of Judges.
• The European Parliament resolution on respect for human rights in the European Union (1998-1999) (11350/1999 - C5-0265/99 - 1999/2001(INI)) adopted on 16 March 2000 (which "Recommends that Member States guarantee the independence of judges and courts from the executive and ensure that appointments to the judiciary are not made on political grounds").
• The Charter of Fundamental Rights recently adopted by the European Union (which provides for-see Article 47: Right to an effective remedy and to a fair trial-that "Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law").

1. "The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the laws of the country. It is the duty of all governmental and other institutions to respect and observe the independence of the judiciary.
2. The judiciary shall decide matters before it impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
3. The judiciary shall have jurisdiction over all issues of a judicial nature and shall have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law.
4. There shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision. (.)
5. (.).
6. The principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.
7. It is the duty of each Member State to provide adequate resources to enable the judiciary to properly perform its functions."

1. The Judiciary is an autonomous body. It is not subject to any of the other two powers of the State. Public prosecutors should enjoy the same guarantees provided for by the law concerning the judicial status.
2. Judges and public prosecutors are only subject to the law.
3. Judges and public prosecutors should be appointed for life or for such other period and conditions, that the judicial independence is not endangered. Any change to the judicial obligatory retirement age must not have retroactive effect.
4. Judges and public prosecutors should be selected through competitive examinations. The selection and each appointment of a judge or of a public prosecutor must be carried out according to objective and transparent criteria based on proper professional qualification. Where this is not ensured in other ways, that are rooted in established and proven tradition, selection should be carried out by an independent body, that include substantial judicial representation.
5. No influence at all should be given to the executive or to the Legislative power in the process of selection of judges and public prosecutors.
6. A High Council for the Judiciary should be established. The High Council for the Judiciary should be entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning judges and public prosecutors. This body should be composed of judges and public prosecutors, or at least have a majority representation of judges and public prosecutors.
7. Judges and public prosecutors cannot be transferred, suspended or removed from office unless it is provided for by law and then only by decision in the proper disciplinary procedure.
8. Disciplinary action should be carried out by independent bodies that include substantial judicial representation. Disciplinary action against judges and public prosecutors can only be taken when provided for by pre-existing law and in compliance with predetermined rules of procedure.
9. Each judge and each public prosecutor has the right to be provided with an efficient system of initial and further judicial training; attendance to these two forms of training should be, for a certain period, compulsory for each judge or public prosecutor, or at least it should represent an essential condition for moving to a higher post. Judicial training should be provided by an independent institution, such as the French Ecole Nationale de la Magistrature, or by the independent body, that include substantial judicial representation.
10. Judges and public prosecutors must be granted proper working conditions.
11. Salaries of judges and of public prosecutors should be fixed by statute (and not by an act of the executive power) and linked to the salaries of parliamentarians or of ministers. They should not be reduced for any reason.
12. Judges and public prosecutors must be granted full freedom of association, both on national and international level. Activity in such association must be officially recognised as judicial work.

2. Judicial Independence in Countries of Central and Eastern Europe.

If we look, from the above mentioned standpoint, at the legal evolution in the former communist countries we cannot refrain from remarking that the shift towards democratic regimes did not always bring within itself a full acceptance of Montesquieu's doctrine of the separation of powers. This is particularly true for many of the countries that were members of the former Soviet Union. In my capacity as an expert of the Council of Europe I've been given many times the chance to visit these countries, where I was suddenly confronted with problems and questions whose very existence I could never imagine. For example, one of the thorny questions I had to tackle many times is the following one: "How can you-in cases in which the State is defendant-sentence your own State to pay a certain amount of money to the plaintiff, when it is this very State which pays your own salary? Do you really feel yourself independent when you render such a decision? ".

The very fact that such a question is posed shows how far for many European judiciaries a situation of real independence can still be.

It happened also many times to me to be called by the Council of Europe to give legal advice upon bills and draft statutes in countries of Central and Eastern Europe. In these cases I've found myself very often confronted with the attempt-sometimes clearly shown in the legal texts-to create, or to preserve more or less evident forms of controls upon the judiciary, especially in the ticklish topics of judicial selection, career, transfer and disciplinary proceedings.

Unfortunately, as a general rule, we must notice that the influence of the executive power in this part of Europe is still too strong.

Let me say that this situation cannot be blamed only on the lack of democratic traditions in many of the concerned countries: of course this is not true for a number of states which savoured independence and freedom before the communist regime. On the other hand, once again the Italian example shows that a former situation of dictatorship can result in a subsequent "democratic reaction", which brings about a full implementation of the independence of the judiciary. What I would rather like to point out as a negative factor is the influence that in this part of Europe has been exerted since the fall of the Berlin wall by the Common Law systems.

Please, do not get me wrong. Nobody can deny the importance of the role played by CEELI in this area: let us only think to the tremendous activity aiming at setting up judicial training centres, organising meetings, seminars and conferences, providing colleagues with any kind of legal assistance, and so on. But it is also undeniable that all this has resulted in a tendency to transplant legal institutions and, more generally, a certain kind of mentality into a legal environment that is completely different. Let me say it more clearly, maybe more bluntly. That the choice for the appointment of judges is made by the British Lord Chancellor, or by H.M. Government, or by the U.S. Government, or by the President of the United States does not raise concern in those systems (even though the problems posed some months ago by the Bush v. Gore electoral contest clearly show how crucial can the question of the reliability of a judiciary whose members are appointed by political parties).

The same is true of the lack in those systems of any form of High Council for the Judiciary. But we must never forget that Anglo-Saxon systems-and, before that, Anglo-Saxon cultures-are historically based upon a deeply rooted, centuries-old respect towards the judiciary, up to the point that a High Council for the Judiciary could be seen there as a threat, rather than as a bastion of judicial independence.

This is absolutely not the case for the southern part of Europe, of which Italy is a conspicuous example, where legal institutions such as the High Council for the Judiciary had to be created (and have to be maintained) in order to protect the Judiciary against the ravenous appetites of the political body. Under this respect I think the situation of Central and Eastern European countries is much more similar to that of Southern Europe.

That's why I welcome an initiative such as, for example, the Consultative Council of Judges, under the Council of Europe's auspices. The framework in which this new body is going to operate will surely allow a richer exchange of experiences and will also convince the more reluctant colleagues of the opportunity to accept the idea that the judiciary (and-as an Italian-when I utter this word I always have also in mind the members of the public prosecutors office) must be self-governed; that means that topics like judicial selection, training, career, transfers and discipline cannot be dealt with by any institution other than an independent body that includes a majority judicial representation.
 
 
 

PART TWO REMARKS UPON THE DRAFT JUDICIAL CODE OF UKRAINE  AND THE DRAFT LAW OF UKRAINE ON THE JUDICIAL SYSTEM AND STATUS OF JUDGES

 
 
 

3.The Judicial Power (Or: How Article 1 Could Be Redrafted).
 

"Justice" in itself cannot be the object of a definition by law. That's why I prefer the heading of Article 1 of the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin). Here the text of the Statute is preceded by a definition of the "Judicial Power". Furthermore, the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin) stresses the need for independence of judges in the very text of the first paragraph of the first article.

Maybe the two initial paragraphs of the drafts could be mingled as follows:
 

Article 1. The judicial power  The judicial power in Ukraine shall be one of the three state powers, at the same level as the legislative and executive powers. It shall function autonomously, independently of the legislative and executive powers.

Paragraphs 2 and 3 of the Draft judicial code (by People's Deputy Mr Zadoroshnij), on the contrary, appear to me much more effective and comprehensive than their "counterparts" in the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin), so that they should look like this:
 

Justice in Ukraine shall be administered exclusively by the courts of general jurisdiction (hereinafter - courts), which are established in compliance with the Constitution of Ukraine and this Code in the form of civil, economic, administrative and criminal legal proceedings.  Justice shall be administered by the professional judges (hereinafter - judges) and in cases, which are stipulated by the law, by judges with the participation of people's assessors and the jury.

Finally I would add the following paragraphs, taken by the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin).
 

It shall not be permitted to delegate courts functions, and also appropriate these functions by other bodies and persons, and establish extraordinary and special courts. Persons, who illegally entitled themselves to the performance of functions and authority of courts, shall bear responsibility stipulated by the law.  The organization of courts system, which is based on the territorial principle and principle of specialization, shall ensure the access to justice for every person.

The Draft judicial code (by People's Deputy Mr Zadoroshnij) contains a Chapter 3, focused upon some "Basic principles of justice". I do not think that any of these principles should be enshrined in a judicial code. They seem to be more suitable for the text of a Constitution, rather than for a statute on the Judicial System (see e.g. Article 9. Truth, Article 10. Legality, Article 11. Equality before the law and court, Article 12. Presumption of innocence and provision of guilt proving, Article 13. Right of legal assistance in the court, Article 14. Competition and disposition of law proceeding).
 

4. Guarantees of Independence of Judges.
 

Draft judicial code  (by People's Deputy Mr Zadoroshnij)

Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin)

Article 6. Autonomy of courts and independence of judges, people's assessors and jurors Courts shall administer the justice autonomously. While administering the justice, judges, people's assessors and jurors shall be independent on any influence and obey only the Constitution of Ukraine and laws.  The Constitution of Ukraine, this Code and other laws of Ukraine shall consolidate the guarantees of autonomy of courts and independence of judges, people's assessors and jurors.  All bodies of state power, enterprises, institutions and organizations, bodies of local self-government, associations of citizens, other legal entities and physical entities must respect the independence of a court and not encroach upon it.  Interference in administration of justice, influence on judges, people's assessors and jurors in any way shall involve the responsibility stipulated by the law.  Judges, people's assessors and jurors shall be guaranteed the freedom of unbiased decision of court cases in compliance with the current legislation, their legal conscience and inner conviction.  The will of any party or participant of court proceedings or any other person shall not influence the distribution of court cases among the judges. The case may be withdrawn from a judge and transferred to another judge only on the grounds stipulated by the law.  Judges, people's assessors and jurors shall not be obliged to give any explanations on cases considered by them or cases under their proceeding.  Conduction of demonstrations, meetings and pickets in official premises of courts and around them shall be prohibited.  The Verkhovna Rada of Ukraine shall not decrease in the current year the amount of expenses of State Budget of Ukraine for maintenance of courts.

Article 7. Autonomy of courts and independence of judges  Courts shall administer justice autonomously. In the administration of justice, judges shall be independent of any influence, not accountable and not subordinate to anybody and subject only to the law.  The Constitution of Ukraine, this Law and other laws of Ukraine shall consolidate the guarantees of autonomy of courts and independence of judges.  All bodies of the state power and local self-government, legal entities and officials shall respect the independence of judges and not infringe upon it.  Distribution of cases among judges shall not be influenced by the will of any party to the case or any other person interested in results of its consideration. Case may be transferred to another judge only on the grounds stipulated by the procedural law.  The autonomy of courts shall be ensured by a special procedure for financing, organization and staff, logistic support and information provision of courts.  Guarantees of autonomy of courts and independence and legal protection of judges shall not be cancelled or limited.

 

Both texts must be praised for their clear provisions in favour of a really independent justice. However, I personally prefer the version proposed by Article 6 of the Draft judicial code (by People's Deputy Mr Zadoroshnij), which appears to be more comprehensive.

I'd only reword like this paragraph 9.:
 

9. The autonomy of courts shall be ensured by a special procedure set forth by a statute for financing, organization and staff, logistic support and information provision of courts. The Verkhovna Rada of Ukraine shall not decrease the amount of expenses of State Budget of Ukraine for maintenance of courts.

5. Irremovability and Immunity of Judges.
 

Draft judicial code (by People's Deputy Mr Zadoroshnij)

Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin)

Article 8. Irremovability of judges Judges shall hold the post for an indefinite term except the judges, who are appointed to the post for the first time.  Judges shall be guaranteed to hold the post till attaining the age of sixty-five. A judge shall be dismissed from the post only on grounds stipulated by the Constitution of Ukraine and this Code. In case of court liquidation, judges by their consent shall be transferred to another courts.

Article 8. Irremovability of judges  Judges shall hold the post for an indefinite term, except the judges of the Constitutional Court of Ukraine and judges, who are first appointed to a post.  Judges holding the post for an indefinite term shall be guaranteed to hold the post of a judge till attaining the age of sixty-five. During this period they may be dismissed from the post only on the grounds stipulated by Article 126 of the Constitution of Ukraine. In case of court liquidation, judges by their consent shall be transferred to other courts of the same level and in case of their refusal to be transferred they shall be dismissed from the post by the body, which elected or appointed them, in view of dismissal or at their own request.

 

Both drafts must be appreciated for their effort to actively uphold the independence of the judiciary in this delicate topic of judicial transfer. Maybe the text of the Draft judicial code (by People's Deputy Mr Zadoroshnij) is preferable for its succinctness.

As far as immunity of judges is concerned, Article 7 Draft judicial code (by People's Deputy Mr Zadoroshnij) and Article 103 Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin) extensively provide for rules on this topic. The western tradition doesn't know this kind of guarantee for the independence of judges. So, for instance, in Italy, in France, in Spain or in Germany judges are accountable for their actions according to the principles of criminal and civil law, exactly as any other citizen. But I understand very well that in societies where the respect for judges and their independence are still not so deeply rooted, it may seem preferable to protect the judiciary also by these means.
 

6. High Council of Justice.

Both drafts extensively refer to the "High Council of Justice", which is provided for by a separate act: the Law of Ukraine On the High Council of Justice ("Holos Ukrayiny", February 17, 1998. No. 30 [1780]). I personally think that this body, as the supreme bastion of the independence of the judiciary, should be disciplined by this new statute, or, in any case, by a comprehensive general act that encompasses topics as the legal status of judges, the judicial system as a whole and the High Council.

What raises my worries is that the current Law of Ukraine On the High Council of Justice ("Holos Ukrayiny", February 17, 1998. No. 30 [1780]) does not seem-at least in my view-to be able to fully ensure and implement the independence of the judicial power.

According to western European standards, a High Council of Justice should be the autonomous body in charge of the safeguard of the independence of the judiciary. It should be composed exclusively of judges and public prosecutors, or at least have a majority representation of judges and public prosecutors. The High Council for the Judiciary should be entrusted with the appointment, assignment, transfer, promotion, and disciplinary measures concerning judges and public prosecutors. It should have the power to take decisions in all these matters and not to merely submit proposals to the administrative or legislative powers of the State.

This is unfortunately not the case for the High Council of Justice of the Republic of Ukraine, whose current competence is limited to providing the President of the Republic with advice on the appointment of judges as well as to performing disciplinary proceedings. Furthermore, the representativity of judges inside this body is so tiny that speaking of self-administration of the judiciary would rather sound like a mockery. Actually, it is of paramount importance that the body to which the self-administration of the judiciary is entrusted is composed of a majority of judges: otherwise it would not be possible to speak of "self-administration"; the term "administration from outside" could be more suitable to describe this regrettable situation.

It is therefore recommendable that a new statute concerning the Judiciary is set forth, providing for a new High Council, in which judges are represented on a majority basis. This body should be endowed with a set of powers dealing with all vital functions for the Judiciary (appointments, assignments, transfers, promotions, and disciplinary measures concerning judges and public prosecutors). This matter touches as well the ticklish question of the selection and appointment of judges, which must be dealt with separately (see below, paragraph 9).
 

7. Meetings and Conferences of Judges. Congress of Judges.

The very much complex system of meetings, conferences and congress of judges set forth by Articles 116-128 of the Draft judicial code (by People's Deputy Mr Zadoroshnij), as well as by Articles 79-94 of the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin), seems to me aiming at nothing else but dispersing, scattering and squandering precious energies, time and activities of judges, averting them from what should be their main concern. When it comes to providing for a self-government of judges, the only thing that really matters is to allow judges to elect a (truly) self-governing body, which is autonomous and independent of any external pressure and which is entrusted with appointments, assignments, transfers, promotions, and disciplinary measures concerning judges and public prosecutors.

I find contradictory to define, for instance, the Congress of Judges of Ukraine as the "superior body of judges' self-government" and, at the same time, to grant it the very modest competencies mentioned by Article 121. I repeat here that a real judicial independence can be assured only if judges (all the professional judges) are regularly called (e.g. each four or five years) to elect not three or four or five ineffective bodies, but only one organism, which is a real self-governing body, like the High Councils of the Judiciary of Italy, Portugal or Spain.
 

8. Self-Government (?) of Judges.

The heading of Section 6. of the Draft judicial code (by People's Deputy Mr Zadoroshnij) as well as the heading of Section 5. of the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin) are clearly based upon a misrepresentation of what a "self-government of judges" should be. According to the modern legal science concerning structures governing the judiciary, this expression should refer to the autonomous body (High Council for the Judiciary, Conseil Supérieur de la Magistrature) in charge of appointments, assignments, transfers, promotions, and disciplinary measures concerning judges and public prosecutors (see above, paragraph 6).

On the contrary, Articles 114-115 of the Draft judicial code (by People's Deputy Mr Zadoroshnij) deal only with the problems of the management of material means related to the functioning of the administration of justice (much the same is true of Articles 78-78 of the of the Draft law on the Judicial System and Status of Judges [by People's Deputy Shishkin], which assigns to the self-government of judges only very vague and perfunctory tasks).

But is it really a sound solution letting judges just take care of such aspects as issues of material and technical support, especially in a country, which still lacks a well-established tradition of an independent judiciary? Wouldn't it be more suitable that judges focus their efforts on a good performing of their duties, rather than tamper with economic and administrative issues, so risking to loose precious time and energies? A good judge is not necessarily also a good economist or a good manager and it is therefore better to leave to professional manager the task to administer financial resources.
 

9. Judicial Selection and Appointment.

Provisions of the Draft judicial code (by People's Deputy Mr Zadoroshnij) concerning the matter of judicial selection and appointment (Articles 62-63) are unsatisfactory. An all too excessive weight is given to the executive power, while criteria for the selection remain too vague, thus giving way to all possible form of undue influence on the proceeding for the appointment of judges.

The Qualification commission of judges, provided for by Articles 80-102 of the Draft, does not seem to be able to ensure that the appointment of judges will be done independently of any external pressure. Actually, the representativity of judges inside this body is too weak (see Article 83 of the Draft). The examination proceedings set forth by Articles 100-102 are too poor. The bill dictates no clear-cut criteria, as what concerns the evaluation of candidates and the procedure of the competitive examination.

Some of these remarks can be referred also to the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin). Articles 54-69 of this draft deal with the Qualification Commissions. Here, however, judges are granted inside these commissions a better place than they have in the other draft law. This leads me to deem this bill better than the other one. Nevertheless, the examination proceedings set forth by Articles 100-102 are again too poor. No clear-cut criteria are dictated by the bill as what concerns the evaluation of candidates and the procedure of the competitive examination.

One more example: Article 110.5. provides for that the decision following the examination shall be announced and its copy handed over "no later than the next day after the examination". One wonders here how is it possible that a thorough examination takes place in such a short lapse of time! Even without mentioning the Italian extremes, where the examination and the correction of the three written essays on civil, criminal ad administrative law take not less than one year, it is hardly believable that a reliable evaluation of the skills of the candidates can take place in less than a day.

My personal advice is that the statute should fix as accurately as possible all the procedural steps to be followed in order to be recruited as a judge. Excellence and proficiency of newcome judges are the best guarantees for their independence and for a better service to the citizens. In order to achieve these goals I think that the system of the competitive examination should be regarded as the best one. Anyway, if the political will of the concerned Country is to have its judges appointed by the executive, then all the more reason for us to ensure that, at least, the choice falls upon people who can ensure the highest standards of skill and morality.

In order to achieve this goal Examining Commissions should be set up not for a given period of time, but for each competitive examination. Exams should be held regularly once a year, or every two or three years. The panel should be composed of a majority of judges and of some University professors, chosen by the High Council for any single competitive examination. The panel should check curricula of the candidates and set up competitive examinations-both written and oral-on subjects such as civil, criminal and administrative law, civil, criminal and administrative procedures, etc. They should evaluate the results of such exams in a transparent and public way and draw up a final list, marking the scores following the written and oral examinations. Candidates should be given the post of judge, according to the position they reached in the final score.
 

10. Appointments of the Heads of Courts and Judicial Career.

Appointments of the heads of courts as well as the whole judicial career for any of the Ukrainian judges are to be strongly influenced in both drafts by the Qualification commission of judges. This is the case, for instance, in the Draft judicial code (by People's Deputy Mr Zadoroshnij), for Chairperson and deputy chairperson of district courts, city-district courts, Supreme Court of the Autonomous Republic of Crimea, oblast court, courts of Kyiv and Sevastopol cities, court of the Autonomous Republic of Crimea, oblast, cities of Kyiv and Sevastopol, high specialised court, regional economic court and Supreme Court of Ukraine (see Articles 34, 37, 38, 41, 44, 48, 53 and 54 of the Draft judicial code [by People's Deputy Mr Zadoroshnij]). Much the same is true for the parallel provisions of the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin): see Articles 106-117.

The drafts do not clearly say which will be the value and the strength of this recommendations and if they shall be binding on the President of the Republic. What appears clear, in my opinion, is that this Qualification Commission of judges does not seem to safeguard in a sufficient way the principle of independence of the judiciary, for the reasons I explained above (see paragraph 9), mainly related to the composition of this body.

These negative remarks affect also all the issues related to the judicial career. In my view it must be ensured in any way and at any cost that promotions of judges depend only on their skills and seniority, without any regard to the kind of decisions they adopted, or to the relations they have to the bar, the political "environment", the "superior judges" or the Minister of justice. The only way to avoid any sort of undue influence is to entrust promotions of judges to a really independent body, composed of judges (or, at least, of a majority of judges) elected by their peers. For instance, in the Italian experience, while the economical career of judges is almost automatic (that means that higher degrees and salaries are earned only through seniority), the promotion to a higher post or function is decided by the High Council for the Judiciary through a comparative enquiry among applicants (I underline here that two thirds of the 33 members of this body are judges or public prosecutors elected by all the judges and public prosecutors of Italy).

11. Legal Training of Judges.
 

Draft judicial code  (by People's Deputy Mr Zadoroshnij)

Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin)

Article 135. National Academy of Judges of Ukraine 1. The National Academy of Judges of Ukraine shall provide the proper level of the professional training of judges to form the highly professional judiciary. 2. While performing its authority, the National Academy of Judges of Ukraine shall: 1) train persons who apply for the post of a judge for the first time; 2) develop the qualification of judges, personnel of the court offices and secretariat of the Supreme Court of Ukraine; 3) carry out scientific research in the field of organisation and activities of the courts. 3. The National Academy of Judges of Ukraine shall act on the basis of the Regulations to be approved by the President of Ukraine. 4. Location of the National Academy of Judges of Ukraine shall be the city of Kiev.

Article 211. Academy of Judges of Ukraine  The Academy of Judges of Ukraine shall be established under the auspices of the State Court Administration of Ukraine.  The tasks of the Academy of Judges of Ukraine shall be:  training and development of judges and officials of courts structures;  conduction of scientific researches concerning the issues of improvement of courts organization and activity;  study of world experience in organization of courts activities.  The Ministry of Justice of Ukraine on representation of the Head of the State Court Administration of Ukraine shall approve the provisions on the Academy of Judges of Ukraine.

The idea of a national Academy for judges is a very good one, but both drafts have only very limited provisions upon this matter. By reading these articles one gets the impression that the true intention is to put off the setting up of this institution, which would need a much more complex structure, in order to be vital and effective. The architecture of this institution cannot absolutely be left in the hands to the Minister of Justice, as judicial training is strictly related to the topic of judicial independence. Furthermore, it is also related to the basic principle of the freedom of teaching.

Therefore I think that a special institution should be set up, independent of the Department of Justice. This structure should be drawn up by the law, which should specify how its managing committee should be composed. Members of this panel should be mainly judges appointed by the High Council, even though some representatives of other legal professions should be included (university professors at law schools, attorneys, notaries). The managing committee should be responsible for the setting up of yearly training programmes, as well as for the detailed programme of each training course for judges. They should appoint experts to teach as well as to lead practical workshops and discussions inside each training course. The panel should be accountable to the High Council and should draw up an yearly detailed report on the training activity for judges.

Training activity should be open to all kind of judges (and of public prosecutors) who desire to improve their professional skills. Attendance of training activities should be made compulsory for young judges as well as for judges who change their functions after a certain period of time (e.g. for a judge who has been dealing for years only with civil law and who wants to be transferred to a post in penal law division of a court). A special statute should allocate resources for this institute, providing for that inside the annual State budget a certain amount of money be exclusively dedicate to the financing of this structure and to the training activities for judges.

Finally I remark that the provisions of the two draft laws on the envisaged "Academy of Judges of Ukraine" seem to be inconsistent with other articles of the same drafts. So, for instance, the Draft judicial code (by People's Deputy Mr Zadoroshnij) provides for that the State Court Administration of the Ministry of Justice of Ukraine should be, among others, charged of "create institutions for advanced training of judges and court specialists and organise their activities" (see Article 132, paragraph 11.7.). The Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin), on the other hand, entrusts to the heads of courts-or, sometimes, to the self-administration of judges, or the conferences of judges-the task of "organize training and development of judges of the appropriate court" (see Articles 29. f., 35. d., 40. j., 76. 2. c., 83.1.c.; see also Article 206. 3. d., on the State Court Administration). It is very hard to understand how these latter provisions could match with those concerning the setting up of a National Academy.
 

12. Judicial Ethics.

Chapter 13. of the Draft judicial code (by People's Deputy Mr Zadoroshnij) is devoted to the topic of judicial ethics, while the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin) does not contain any explicit hint to this subject. My first general remark is that ethical rules should be kept as much as possible separate from legally binding provisions. Ethical rules can be converted into legally binding provisions only under these two conditions: (a) When it is possible to word them in a sufficiently clear way and (b) If the Legislator's will clearly intends to punish their violation through a disciplinary sanction. In this perspective I prefer the list incorporated in Article 99 of the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin), which, under the title "Official duties and rights of a judge", enumerates several duties which meet some of the main rules of judicial ethics.

Coming back to the Draft judicial code (by People's Deputy Mr Zadoroshnij) and to the ethical rules drawn up by this document, I'll begin by saying that a judge cannot be requested to "assist in consolidation of confidence in court justice in the society" (see Article 68, paragraph 1 of the Draft judicial code [by People's Deputy Mr Zadoroshnij]). A judge is not a politician. All that he/she can be asked to do is to apply the law, even when this could not please attorneys or people (or some attorneys or some people).

Article 69, paragraphs 5, 6 and 7 is unacceptable, being too restrictive. The result of the acceptation of such principles could be that of gagging judges by forcing them to keep silent, even when their decisions are (as unfortunately happens almost every day in Italy) misrepresented and distorted by mass media, or when they are wrongfully insulted by corrupted politicians, as well as by wretches of all kinds. That's why I would suggest to copy the solution envisaged by Article 6 of the Code of Judicial Ethics adopted by the Italian Association of Judges) as follows:

"In their relations with the press and the other mass media, judges and public prosecutors shall refrain from requesting the publication of news concerning their judicial activities.

In all cases in which they are not bound to the professional secrecy or to the obligation of reserve on professional information, judges and public prosecutors may contact the press and the mass media, when they think appropriate to give information upon their judicial activity, in order to guarantee the accuracy of information, as well as the implementation of the people's right to know, or when the honour or the reputation of the concerned people are at stake. In such cases judges and public prosecutors must refrain from exploiting personal acquaintances or from creating or making use of personal or preferential information networks.

Without prejudice to the principle of complete freedom of expression of their thoughts, judges and public prosecutors shall observe poise and moderation while issuing public statements and releasing interviews to the press and to other mass media."

Finally, Article 69, paragraph 10 is really too vague and full of wishful thinking to be turned into an acceptable legally binding provision.
 

13. Political Activities.
 

Draft judicial code  (by People's Deputy Mr Zadoroshnij)	Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin)
Article 58. Judge as a bearer of the judicial power 5. Judges shall not be the members of the political parties and trade unions, participate in any political activities, have the representative mandate, occupy any other paid posts and perform any other paid work except the scientific, creative work and teaching.	Article 98. Requirements not to hold more than one office  A judge shall not be a member of any political party or trade unions of citizens, publicly show or express the preference to them, take part in political actions of political parties, rallies and strikes.

As for judges and political parties, I'd refer the prohibition to active militancy inside political parties, rather than to membership. I know very well that in all Eastern European Countries this ban is strictly related to a form of reaction against the communist past, in which judges were obliged to be members of the party if they wanted to apply for a post and to preserve it. But we must never forget that judges are first of all citizens. Preventing a judge from revealing publicly his/her political view could be seen as an unacceptable form of censure.

Therefore I'd propose a rewording of the text which could take inspiration from the Italian Code of Judicial Ethics, as follows:

"Art. 8 - The independence of judges and public prosecutors.

Judges and public prosecutors shall safeguard and protect the respect of the principle of independence in the exercise of their duties. They must also appear to be impartial and independent.

They shall refrain from getting involved in political or business centres of power, which are likely to influence the exercise of their duties or to deteriorate their public image.

They shall not accept appointments, nor they shall set up initiatives which:

1. can obstruct the full and correct exercise of their own duties, or
2. can in any way limit the independence of the concerned judges and public prosecutors, taken in account the nature of such activities, the persons or the bodies that confer these appointments, as well as the methods followed in granting them on the concerned judges or public prosecutors."

14. Disciplinary Accountability.

The Draft judicial code (by People's Deputy Mr Zadoroshnij) provides for a set of provisions aiming at establishing procedural rules for disciplinary cases against judges (see Articles 103-113). Unfortunately, the competence for this kind of proceedings is given to the qualification commission, which in this Draft is composed of a majority of people not coming from the ranks of the judicial power. Therefore I repeat here my complete disagreement and I reiterate my fears for an effective safeguard of the independence of the Ukrainian judicial power.

In my view disciplinary proceedings have to be held by the self-government body of the judiciary, a self-government body which (much like the Italian Consiglio Superiore della Magistratura) is really representative of the judicial power and completely free from any undue influence from the part of the political power, as well as from any other pressure group (e.g. the bar, economical lobbies, etc.). Appeal proceedings should be held before the Supreme Court and not before the High Council (as provided for by Article 204 of the Draft judicial code [by People's Deputy Mr Zadoroshnij]).

A much better proposal is the one incorporated in the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin). This bill provides for the setting up of a Disciplinary Commission of Judges of Ukraine (see Articles 70-75), which should be composed of twelve members, appointed by the Congress of Judges of Ukraine. The independence of the judiciary would be thus preserved in a better way, though I keep on preferring a system in which disciplinary proceedings are held by a High Council (but I repeat: a High Council which is really representative of the Judicial Power and in which judges are represented on a majority basis) or by a Disciplinary Section inside the High Council, with an appeal to the Joint Divisions of the Supreme Court.

I do not share the drafter's view, which led him to grant the power to start disciplinary action against a judge to a plethora of parties, like the President of Ukraine, or any people's Deputy of Ukraine, or any member of the High Council of Justice, or any member of the Disciplinary Commission of Judges, or any Commissioner of the Verkhovna Rada of Ukraine on human rights, or any Chairman of the court, in which a person, against whom the disciplinary motion is initiated, serves at the post of a judge (see Article 196 of the Draft law on the Judicial System and Status of Judges [by People's Deputy Shishkin]). On the contrary, I think that this power should be restricted to one or two very high officials (like the Minister of justice or the General Prosecutor of the Supreme Court), who could possibly receive and delibate charges against judges coming from any party who has a legitimate interest in trying to have a disciplinary sue filed against a judge. Otherwise the risk of undue pressures and blackmail against judges would be too strong.
 

15. Suggestions Concerning the Matter of Disciplinary Accountability.

The matter of disciplinary responsibility is a very delicate one. It cannot be resolved with a provision like the following one: "Disciplinary misdemeanour shall be a guilty non-performance or improper performance by a judge of his/her duties determined by Article 99 of this Law, or commitment of a worthless action discrediting him/her as a judge" (see Article 194.2. of the Draft law on the Judicial System and Status of Judges [by People's Deputy Shishkin]).

I'm convinced that the law should provide for a precise set of cases. This could help judges to know how they have to behave in certain situations.

I'll cite here some examples taken by two Italian bills concerning this matter:

One of the most famous bills was the one proposed by the Government in 1983 (D.D.L. No 251/S, presented on 20 October 1983), whose articles 3 and 4 described as follows the main disciplinary violations: "

1. the violation of impartiality towards the parties;
2. the patent violation of correctness towards the parties, their attorneys, civil servants or witnesses;
3. the violation of judicial secrets;
4. the violation of the obligation of keeping one's domicile in the same town in which the court is;
5. not disqualifying him/herself from hearing a case, when conflict of interest arises;
6. professional negligence;
7. issuing summary or urgent decisions in patent violation of law;
8. persistent and unjustified violation of procedural rules;
9. recurrent delays in issuing the decisions or any other act relating to the exercise of the judicial functions;
10. having one's work done by another person;
11. interfering without any ground in the jurisdictional activity of a colleague;
12. any other behaviour that represents a serious breach of official duties;
13. repeated and grave abuse of the office of a judge in order to gain advantages for him/herself or for other persons;
14. having been condemned for certain criminal offences;
15. having in public agreed or disagreed with colleagues' decisions, in order to interfere with their activities;
16. being engaged in activities not consistent with the judiciary function;
17. being engaged in extra-judicial activities without the authorisation of the High Council for the Judiciary;
18. any other behaviour which can compromise the confidence in the impartiality or in the correctness of the judiciary."

The bill distinguishes between behaviour inside and outside the courtroom. In the first category we can find (see article 2): "

1. violations of the duty of impartiality (e.g., not disqualifying him/herself from hearing a case when there is conflict of interest);
2. violations of the duty of correctness in the relations with the parties, their solicitors, witnesses, colleagues (e.g., interfering with the activities of another judge);
3. violations of the law due to gross negligence, or not giving a written opinion when required by the law, or giving an opinion in which the judge does not specify the facts that induced him/her to take that decision;
4. recurrent and unjustified delays in issuing decisions or any other act related to the exercise of judicial functions; any other consistent gross disregard of the duty of activity;
5. violations of judicial secrets, or any other breach of discretion;
6. neglect by the chief justices to report to the High Judiciary Council violations committed by "lower ranking" colleagues.

 

 
 
 
 
 

As for the judge's conduct outside courtroom we can find the following prohibitions (see article 3):

7. exploiting his/her position as a judge in order to obtain unjustified advantages;
8. having friendly relationships to a defendant in a criminal proceeding treated by that judge, or to a person condemned for having committed gross criminal violations;
9. being engaged in extra-judicial activities without the authorisation of the High Council for the Judiciary;
10. having in public agreed or disagreed with colleagues' decisions, in order to interfere with his/her activity;
11. any other public behaviour that could jeopardise the credibility of the judiciary."

16. Judges' Working Conditions and Economic Security.

There is an increasing concern-both at national and at international level-upon quantity and quality of material means which the State should put at the disposal of judges in order to enable them to properly perform their duties. I'll only cite here Article 14 of the "Universal Charter of the Judge", approved by the International Association of Judges in Taipei (Taiwan) on November 17, 1999, according to which "The other powers of the State must provide the judiciary with the means necessary to equip itself properly to perform its function. The judiciary must have the opportunity to take part in or to be heard on decisions taken in respect to this matter." Much the same is true for the "European Charter on the Statute For Judges" approved under the aegis of the Council of Europe on 8-10 July 1998. This document states in its Article 1.6. that "The State has the duty of ensuring that judges have the means necessary to accomplish their tasks properly, and in particular to deal with cases within a reasonable period."

That is why I do appreciate the provisions of the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin) which envisage, for instance, the setting up of Court libraries (see Article 217), the employment of a specialised Court staff (see Article 218) and of a special Service of judicial officers (see Article 220). But what I'd like to particularly praise is the provision concerning the so-called "Deputy judges", something for which Italian judges have been (unsuccessfully!) fighting for years.

A special mention deserves Article 221 (Provision of security and maintenance of public order in courts), according to which "Judicial militia shall maintain the public order in the court, prevent showing the disrespect to the court, supervise court premises, perform functions on state protection of judges and court officials and assure safety of all participants of legal proceedings." At last a provision that really helps judges in protecting the high and delicate role they perform! A rule which would be badly needed also in our western societies, where the growing insolence of parties and attorneys towards judges and justice is currently reaching peaks that none would have dared to imagine only some years ago!

The only piece of advice I would like to give in this field deals with the setting up of a modern system of recording judicial decisions, as well as of computer data bases on legal texts (statutes, case-law, legal doctrine). The use of such data bases is of paramount importance for judges' every day work in Western Europe and it helps them in a dramatic way to keep themselves abreast of new laws, statutes, by-laws, cases, doctrine and materials in this ever-changing contemporary legal environment which surrounds and challenges us.

The same kind of appreciation must be shown as far as material security and provision of living conditions of judges are concerned. Here, again, the Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin) seems to be much more comprehensive than the Draft judicial code (by People's Deputy Mr Zadoroshnij): Articles 169-193 set forth a system which appears to me able to really ensure the material means to help the setting up of an independent and upstanding judicial power. In this respect the parallel provisions of the Draft judicial code (by People's Deputy Mr Zadoroshnij) are surely much less satisfactory (see Articles 70-73).
 

17. Constitutionality Review.

Both drafts refer to the power of the Supreme Court to apply to the Constitutional Court of Ukraine (see Article 50 of Draft judicial code [by People's Deputy Mr Zadoroshnij] and Article 43 of the Draft law on the judicial system and status of judges [by people's deputy Shishkin]), but the principles concerning this form of appeal on the constitutionality of a statute are not provided for by the draft laws.

In particular, nothing is said whether also other judges have the right to apply to the Constitutional Court of Ukraine when they deem unconstitutional a statute they have to apply. In other words, it does not seem clear to me if a question has to "go up" to the Supreme Court before the Constitutional Court is entitled to say whether or not the concerned statute respects the Constitution of the Country. Should this be the solution, it could not be acceptable. If a provision of the law is unconstitutional, it is a waste of time and money to oblige the parties to climb all the degrees of jurisdiction in order to ask to the Supreme Court to apply to the Constitutional Court: it would rather make much more sense to give (also to) the first instance (as well as to the appellate) judge the power to apply to the Constitutional Court.

The Draft law on the judicial system and status of judges (by people's deputy Shishkin) provides also the possibility for the "general meeting of judges", as well as for the Conferences of judges of district, city, inter-district and divisional courts to apply to the Constitutional Court of Ukraine apropos of interpretation of the laws and Constitution of Ukraine (see Articles 80.f. and 82.g.). These provisions are not clear. Interpretation of the law is a task for judges and interpretation of the Constitution pertains to the Constitutional Court: but this only when such interpretation is relevant for the solution of a specific case (and the judge of this case has decided to apply to the Constitutional Court, e.g. as it is provided for in Italy), or when this is asked by the Parliament (or by a certain number of MPs, if the national legal system provides for this form of constitutionality review, e.g. as it happens in France).
 

18. Distinction between "Civil" and "Economic" Jurisdictions.

Both drafts are based on a fundamental distinction between "civil" and "economic" courts (in some cases also "specialised" or "highly specialised" courts are mentioned). I wonder whether this distinction can still be deemed as viable and useful nowadays, when, for instance, French jurists are debating a possible reform of the specialised "Tribunaux de Commerce". Economic matters are nothing more than a branch of civil matters: so a judge specialised in civil law can very well deal with "economic" cases and vice versa.

Furthermore, by keeping this "civil"-"economic" distinction between cases and between judges we risk to enhance conflicts among different jurisdictions and, more generally, to give an impression of a "divided" (and therefore less strong and less independent) judicial power as a whole.

In my opinion this pulverisation of resources should be avoided particularly in a country which is not a reach one, as the setting up of specialised courts would undoubtedly multiply the costs. It would be much preferable-at least for the first years-trying to set up specialised divisions inside the ordinary (civil) courts, as it happens in most Western European Countries (e.g. for bankruptcy cases, family cases, labour cases, etc.).

19. The Quest for Uniformity in Case-Law.
 

Draft judicial code  (by People's Deputy Mr Zadoroshnij)	Draft law on the Judicial System and Status of Judges (by People's Deputy Shishkin)
Article 47. Plenum of high specialized court  (.) 3. With the aim to provide the unity of judicial practice and on the basis of its generalization the Plenum of the high specialized court shall give courts the recommendatory explanations on issues of legislation application, which regulates the legal relations within the scope of the correspondent special jurisdiction.  (.)	(no special provision are drawn up on this point)
Article 50. Authority of the Supreme Court of Ukraine  The Supreme Court of Ukraine shall:  (.) 5) give courts the recommendatory explanations on issues of legislation application with the aim of equal application of the norms of the Constitution of Ukraine and laws of Ukraine in judicial practice on the basis of its generalization;  (.)	Article 43. Authority of the Supreme Court of Ukraine The Supreme Court of Ukraine shall:  (.) make recommendatory explanations concerning the application of legislation by courts of general jurisdiction.  (.)

The provisions I have reproduced up here show in the best way the attempt of the drafters to seek a sort of uniformity in case law. Of course, this is not the place to debate the themes and problems related to the "dramatic choice" between the stare decisis and the continental law systems. I know very well that it is part of the Eastern tradition to have such recommendations issued by the plenum of the Supreme (or of an "equivalent") Court, but I personally doubt that this system can comply with the basic principles on the independence of the judiciary.

As it has been many times remarked by the legal doctrine, "judicial independence" means not only freedom from onslaughts coming from outside (so-called "external" independence). There exists also a need for an "internal" independence: precisely this kind of independence can be jeopardised by a "superior" jurisdiction, if this one tries to dictate to the "inferior" courts the rules to be followed by dealing with certain cases. The French history knows very well the abuses committed before the Revolution by the Parlements (Royal Courts of Justice of the Ancien Régime, roughly corresponding to the modern Appellate Courts), which could issue arrêts (judicial decisions) aiming not only to settle the specific disputes the Courts had to deal with, but also to lay down rules to be applied in future cases. To repeat such errors would also mean to cross the borderline between the legislative and the judicial powers. That is why I prefer a system in which the decisions of the Supreme Court have a persuasive rather than a binding power.

20. Excerpts from the Italian Constitution (Provisions Concerning the Judiciary)
 

^(*) Text of the report submitted to the round table on: «The Law on the Judiciary of Ukraine», organized by the Legal Reform Committee of Verchovna Rada of Ukraine, in co-operation with the Project Co-ordinator in Ukraine of O.S.C.E. (Organization for Security and Co-operation in Europe) and the Council of Europe, held in Kiev (Ukraine) on 6 March 2001.