State of the judicial system in Ukraine: perspectives from businesses, judiciary and national experts
At the end of December, the European Business Association in partnership with AEQUO law firm held an online conference ”Updates on Ukraine’s Judiciary Reform.” The event brought together representatives of the legal community and became a platform for discussing the results of the Court Index 2023 research. Experts agreed that despite the difficulties of the second year of the war, there have been some positive developments in the judicial system, albeit not very significant.
Anna Derevyanko, Executive Director of the European Business Association (EBA), presented the results of the study, which this year is based on a survey of 100 company executives and 75 lawyers from EBA member companies. In particular, the integral indicator of the Court Index increased to 2.73 points (on a 5-point scale) compared to 2.51 points in 2021. The level of trust in the judiciary on the part of business leaders increased from 1.96 points to 2.17 points. For the first time in the history of the survey, legal professionals’ assessment of the organization and operation of the judicial system has shifted to the neutral plane and amounted to 3.13 points. The lawyers’ assessment of the impartiality of the judicial system has improved to 2.88 points.
Respondents generally gave a positive assessment of the Supreme Court (SC). They noted the need to preserve the system of commercial courts, as well as the Grand Chamber of the Supreme Court, but with a new composition, as a mechanism for harmonizing legal positions between courts of different jurisdictions and resolving inter-jurisdictional disputes. The top 3 factors that negatively affect trust in the judicial system are corruption in the judicial process, too high a court workload, which leads to a decrease in the quality of court proceedings, and ambiguity in the legislation that the court deals with.
Anna Derevyanko commented on the findings and emphasized that the business demand for qualitative changes in the judicial system, such as overcoming corruption, improving the professionalism and independence of judges, and ensuring the unity and consistency of judicial practice, remains enormous. But it must also be a two-way street: the business community must take a responsible stance in its relations with the government and be part of these important changes for Ukraine’s future.
These conclusions are shared by Oleksiy Filatov, Senior Partner at Aequo Law Firm. He believes it is important that in wartime, the system has generally received positive assessments from experts. This signals its sustainability in the face of unprecedented challenges. However, it is crucial to mobilize the efforts of all representatives of the judiciary to neutralize the negative factors identified by the business community. After all, its vision of the judiciary will be one of the decisive factors for potential investors, domestic and foreign. At the same time, the issue of attracting investment capital has never been so acute in Ukraine’s history, as it should set the pace for the country’s reconstruction.
Larysa Rogach, Head of the Cassation Commercial Court within the Supreme Court, emphasized that perhaps six years of the new Supreme Court’s work is too short a period to see the dramatic changes we are striving for. At the same time, according to Larysa Rogach, there has been a change in the approaches that are being considered in the work of the Supreme Court. Accordingly, we would like to extend the application of such new approaches to appellate and local courts, as they mostly consider the vast majority of disputes.
The extremely difficult conditions in which we are now living provide an additional opportunity to conduct a kind of testing as to whether the new principles that were laid down in the work of the SC are in place. According to Larysa Rogach, the first question that arose was whether the judicial system as a whole would function. In her opinion, this question does not arise at the present stage and, moreover, there is an understanding that the work of the courts is the assertion of the sovereignty of the state and its implementation throughout Ukraine.
Equally important and relevant in times of war is the issue of security and access to justice, which implies proper notification of the parties to the trial of the time and place of the hearing and the progress of the case.
The safety and security of visitors and court staff during their stay in court is a priority. In this context, Larysa Rogach noted that the possibility of remote consideration of cases is being actively used. The number of cases of remote consideration of cases is gradually increasing. In particular, in 2022, the Cassation Commercial Court within the Supreme Court considered 26% more cases via videoconference compared to 2021. As of December 19, 2023, the number of such cases increased to 34%. “We use all available technologies to be independent of logistics issues and enable the parties to safely participate in the court hearing,” emphasized Larysa Rogach.
According to Denys Maslov, Chairman of the Verkhovna Rada Committee on Legal Policy, Russian military aggression has increased the demand for digitalization of the judicial system, which should make justice convenient, fast, safe, and reduce corruption risks.
The implementation of this process, which has long been discussed at various levels but has been moving very slowly, has become an urgent requirement of the present. With the support of international partners and the Ministry of Digital Transformation, a technical audit has already been conducted, and a functional audit of current digital mechanisms is planned. After the analysis is completed, the next step will be to create a technical assignment for the development of a new digitalization system. Denys Maslov invited the legal and business community to take a proactive stance and help the state to create the most effective functionality of the electronic system, as all participants of the judicial system, from court employees to representatives of the private sector and citizens will be the beneficiaries of the changes.
Mr. Maslov also commented on current initiatives aimed at improving the quality of the judicial process, such as improving the disciplinary function of the High Council of Justice, strengthening judicial control over the enforcement of court decisions, improving the quality of legal education, etc.
Oleksandr Sasevych, a member of the High Council of Justice, drawing analogies with business structures, emphasized that the judicial system had been functioning for a long time without an “HR directorate”, i.e. without the High Qualification Commission of Judges of Ukraine (HQCJU), and from February 22, 2022, to January 12, 2023, the High Council of Justice was incompetent. In such circumstances, receiving a positive performance evaluation is evidence of the high level of professionalism of judges and the great potential of the system as such.
As of today, the High Council of Justice and the High Qualification Commission of Judges of Ukraine are already working. Oleksandr Sasevych notes that both structures operate at a high pace and in a mode of maximum openness (online meetings, roll-call voting, etc.), trying to ensure the sustainability of the judicial system as quickly as possible. In particular, the High Council of Justice’s key current tasks are to overcome the staff shortage in the judiciary (including by attracting candidates from the reserve), as well as to restore and improve the function of disciplinary responsibility of judges. Oleksandr Sasevych also noted that to reduce the workload of the courts, it would be useful to analyze the costs of legal proceedings by considering cases that can be resolved at the level of lawmaking, rather than through numerous lawsuits, etc.
We thank the speakers for their dialog with business and updates on the state of the judicial system, the challenges it faces, and the prospects for development. We also thank them for their active participation in changes aimed at improving the justice system. Special thanks to our partner AEQUO for their strong expert support.