The principle of court independence means a particular judge’s ability to make a decision without any influence, only through the prism of his own analysis, knowledge, requirements of law and internal conviction. Judicial independence is the system where no one can influence its functioning, restrict or limit its influence, except in a way that is expressly provided for by law.
Sometimes, court independence is more important than its professionalism. An error of a particular judge may be corrected by lodging an appeal or cassation. The worst thing, which may happen, is a highly professional and simultaneously dependent court. We do not ever find justice in such a court, and its decisions become the legalized arbitrary behavior!
Ukraine has made significant steps towards strengthening court independence. Such a fact is fixed by both experts of European institutions and Ukrainian lawyers. We have reached more over the past four years than within the previous twenty ones.
Key achievements of recent years:
- Neutralization of direct political influence on judge’s career. Both Parliament (Verkhovna Rada) and President are suspended from making decisions on appointment and career progression of judges.
- The High Council of Justice (HCJ) was provided with full and exhaustive competences regarding the possibility to accomplish the missions of judicial authority. The HCJ is the body in which the majority consists of the judges elected by the judges themselves, which makes it dependent only on the law and community of judges.
- Judicial remuneration has considerably grown. A high salary of a judge is not a guarantee against corruption, but it establishes an effective safety barrier. Remuneration of the Supreme Court’s judges may be regarded as an example thereof.
- Transparent competitive procedures for selection and transfer of a judge, geography and previous places of work of the winners of competitions to the Supreme Court and Anti-Corruption Court testifies to the beginning of functioning social lifts in judiciary profession.
Changes have created a new quality reality, but at the same time new challenges have emerged. I conveniently classify the challenges facing the court independence into two groups – external and internal.
External challenges do not directly depend on the judiciary or a particular judge. They include as follows:
- Permanent public discredit of court decision, especially by politicians, court, judge.
- Government’s periodic populist attempts to reduce the judge’s remuneration. This is easy to speculate, especially in the context of a negative information background around the judicial system.
- Audit, potential reduction of court reform achievements, especially as regards the guarantees of independence. I do not question the right of political authorities to introduce changes and implement the mandate received from the people in the elections, but such changes should take place exclusively in the manner prescribed by law.
- Illegal influence and pressure, both on the judicial system as a whole, and pressure directly on the judge in order to motivate him/her to take a specific decision. Related instrumentality is as broad as possible, varying from intense persuasions and hints to direct blackmail, using the guided “public activists” and initiating criminal proceedings.
Internal challenges. My guess is that the answer to them is more critical and requires more internal will than confronting external challenges.
- Direct and efficient implementation of the powers of the High Council of Justice (HCJ) to respond to specific cases of pressure, both on a judge and on judiciary as a whole. The HCJ’s members should realize their mission aimed at creating an independent judiciary. The judiciary has to mildly press its delegates to the HCJ, forcing them to proactively react to every act of interference and attempt to restrict independence of both judges and judiciary.
- The main and decisive thing is the mental readiness and decisiveness of both judges and judicial bodies to protect their independence, not protect corporation members, but protect the right to free justice. The judicial authorities should do so through legislative powers and pressure on political authority, and judges should do so by making a legal decision in each case.
Author: Denys Bugay, attorney-at-law, partner of VB PARTNERS, President of the Ukrainian Bar Association