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All you need to know about Saakashvili’s judicial reform

Author : Natalia Lebed

Source : 112 Ukraine

200 courts instead of 764, less control, case law, and judgment in a smartphone - here are the key points of the new reform
09:30, 6 August 2020

When preparing to become the head of the executive committee of the National Council of Reforms under the President of Ukraine, Mikheil Saakashvili, among other technical obligations, was also tasked to reform the judicial system of Ukraine. The courts are permanently subjected to the reformation in our country and each government takes up the perturbations in this area. The Georgian innovator presented his concept of a reformed justice. Its main leitmotif is the reduction of instances of all possible levels: both, in fact, the courts themselves, and those structures that exercise control over them.

The incumbent Head of Executive Committee for Reforms of Ukraine
Kyiv Post

First innovation: 200 courts instead of 764

Saakashvili proposes to liquidate administrative, economic, and general courts, and create a district center of justice. In total, 200 should remain out of 764 courts, "it will be easier to access them, and the procedure will be much faster and more transparent." "In addition, there will be a Supreme Administrative Court, to which citizens will apply regarding decisions of state bodies, a Supreme Anti-Corruption Court, a Supreme Court on Intellectual Property," Saakashvili said.

This idea is not new. Ukraine began to liquidate the courts at the midterm of the presidency of Petro Poroshenko. According to the then reform, the Supreme Court of Ukraine was recognized as a single cassation instance. This meant that all existing high courts at that time were liquidated, and the cassation cases that were considered in them were redirected to the desks of the newly elected judges of the Supreme Court.

Poroshenko was warned: it was about 50-70,000 cassations. Even if 100% of the composition of the court is formed, more than 580 cassation complaints will be distributed to each judge. And if the court is only half full, the number of cases will exceed a thousand.

And that's not counting new cases that come on a regular basis. With such a load, the work of the highest court might be blocked for a long time - and a wide field for abuse will open up due to the arbitrary determination of the order of consideration of "frozen" cases.

But the layman always likes it when someone cuts off the bureaucratic apparatus. Since the latter, by the general belief, only parasitizes on "ordinary citizens". Therefore, in principle, many people may like Saakashvili's idea. Because few people are able to understand a simple thing: fewer courts do not mean fewer cases. Having fewer courts means more workload per judge. And long lines for justice.

Second innovation: less control

The next point that Saakashvili speaks about is the need to eliminate the "plurality" of the court control system: to liquidate the High Council of Justice, the High Qualification Commission of Judges and the State Judicial Administration, instead, to create a single judicial control body. This body will perform the following functions: 1) selection and recertification of judges, 2) consideration of disciplinary cases on complaints against judges, 3) monitoring the integrity of judges, 4) ensuring the financial independence of courts.

Related: Saakashvili offers to discuss disbanding Constitutional Court of Ukraine at nationwide referendum

However, there is an interesting point: President Zelensky is now being harshly criticized by activists for having decided to remove one single element from this matrix. According to the bill No. 3711, which was introduced by the president to the Verkhovna Rada, the mention of the Commission on Integrity and Ethics, which was supposed to oversee the High Council of Justice, is removed from the concept of judicial reform.

It is not known whether such nuances are of interest to Saakashvili, but he himself goes much further and defends the idea of ​​eliminating the entire controlling superstructure. Although, on the other hand, he mentioned a single body of judicial control, designed to replace the old institutions.

Innovation three: alternative justice

Another innovation from Saakashvili is "alternative justice" - the creation of institutions of the arbitration court and the use of mediation. It is not clear how jury trials will fit into this scheme, perhaps they will be left to consider charges of especially serious crimes. The Constitution of Ukraine, adopted in 1996, spelled out the institution of the jury, which, however, still has not really started working.

Because, since 1996, the provision on jury trials has been carefully recorded in each new edition of the Law "On the Judicial System." However, until recently it was not even clearly regulated which cases were to be tried by a jury and which by a court with the participation of people's assessors. For example, the version of the law, voted by the parliament in February 2002, referred to both the first and the second institution, without specifying the criteria for differentiating criminal cases.

And already in the new Criminal Procedure Code, adopted in 2012, there was a provision according to which the jury would consider only serious crimes, in particular those for which life imprisonment is provided. In addition to this, Saakashvili proposes implementing the idea of "mediators," that is, mediators, as another additional judicial link or instance.

Related: Georgia responses to Saakashvili’s statements: Ukraine to be held accountable

Fourth innovation: case law

In one of the interviews that Mikheil Saakashvili gave to Ksenia Sobchak, he spoke with great reverence about British and American justice. And he even stated that it would be nice to send professionals from London or Washington to Ukraine. Not surprisingly, in introducing his reform, he borrowed something from the British - namely, their system of case law.

The essence of English common law is that it is created by the courts. That is, judges, apply legal precedents to the facts and circumstances of each specific trial. Simply put, if a certain case has already been considered before, the judge must conduct the consideration of the case in accordance with how the previous decision was taken. This system excludes the option that two courts make diametrically opposite decisions on the same issue.

Fifth innovation: judgment in a smartphone

Saakashvili pays tribute to the latest trends, namely, the course of digitalization proclaimed by the president. He wants to implement a "trial in a smartphone". It is expected that such a program will deal with the automatic distribution of cases, will allow you to file a claim online, as well as pay online court fees, transfer evidence or receive copies of court decisions. However, Saakashvili does not explain how exactly this should work in practice.

It is not surprising. Because it won't work in any way. The section dealing with the transition of justice to electronic format evokes especially heated criticism, even outright ridicule. Sources in power circles note that if the judicial reform as a whole was "blessed" by President Zelensky, some of its provisions are exclusively Saakashvili's personal initiative, an initiative with which it would be better not to rush.

Related: Saakashvili advocated inclusion of foreigners to Supreme Court of Ukraine

Criticism of ideas

The "Electronic Court" system was launched even under Poroshenko. It works, although, not perfectly, not fully coping with the tasks assigned to it. But it gives an opportunity to submit an application, however, the study of evidence, interrogation of witnesses, and the like need an offline presence only. There are a lot of things that cannot be replaced by a conference in Zoom, and, in fact, you don't need to do this. In addition, the Internet connection in Ukraine is not as perfect as Saakashvili thinks it is.

Not everyone is impressed by the idea of ​​case law, and indeed the Anglo-Saxon legal system, to which Saakashvili refers. The fact is that Britain has no constitution in the form we are used to. There is a set of laws, recorded precedents, and customs that the state has accumulated, improved and adapted to new realities over the centuries. But in Ukraine, in its short history, they have not formed such a precedent base, we have a Constitution that replaces the British bill of rights. Saakashvili does not explain how to combine these two legal systems.

That is why many critics of Saakashvili note that he has a rather approximate idea or even does not have any about the system he is going to reform. But case law and e-justice do not generate the same amount of angry comments as Saakashvili's desire to reduce the number of courts. The fact that one of the possible consequences might be an unrealistic load on one judge has already been mentioned above. Experts also note that with the reduction of courts, the servants of Themis will have to retrain from narrow-profile specialists to wide-profile ones and immerse themselves in those areas of law that they have not previously dealt with. And this, of course, will also negatively affect the quality of their work.

Related: Saakashvili states on superiority of reforms in Russia

President’s office position

But what do the authorities think about Saakashvili's activity? Perhaps it does not forbid the Georgian reformer to generate these unacceptable ideas. First, no one is going to embody them. Secondly, it is a kind of distraction from more significant problems. And, thirdly, it is likely that Saakashvili’s main task is not in the legal plane, but strengthening the Ukrainian-American ties.

Having barely arrived in Ukraine, Mikheil Saakashvili held one of his first meetings at the American embassy. There he spoke with diplomats about an office, which had been vacant for a year now (the post of the United States Ambassador to Ukraine - after the resignation of Marie Yovanovitch, this office remained vacant).

After Yovanovitch stepped down, she was temporarily replaced by William Taylor, and later by Christina Kvien. Saakashvili also talked to her, and soon after that, American President Donald Trump decided on the candidature of the ambassador – Keith Dayton, an experienced executive with experience in the military, intelligence, and diplomacy. Dayton's appointment surprisingly coincided with the beginning of Saakashvili's work. It is unlikely that this can be a coincidence, and this, as already noted, is one of the probable reasons for the condescending attitude towards "Saakashvili's reforms."

"The return of Saakashvili is an attempt to improve the image of Zelensky and the authorities in the West since problems arose in communication with Western partners after the resignation of PM Honcharuk and prosecutor general Ryaboshapka. Representatives of the European Solidarity, National Front, Batkivshchyna have become communicators with the West, and Zelensky has very weak positions here, and he is forced to rely on the "outside" negotiators. Saakashvili must fix this, especially since he himself can boast of good connections on the other side of the border," says Ruslan Bortnyk, director of the Ukrainian Institute for Policy Analysis and Management.

But Saakashvili plays other roles as well. For example, the role of the "red rag", which is waved in front of Petro Poroshenko. The appearance of Saakashvili in Ukraine "might be a slap in the face for Poroshenko. He is in opposition, and his opponent is coming to power... But the fact is that Poroshenko plays the role of an antipode under Zelensky. At the same time, Poroshenko's own rating is rather low, and his anti-rating is high. And this saves Zelensky from unwanted comparisons with Poroshenko. Now Saakashvili can become such an antipode," said Bohdan Petrenko, deputy director of the Ukrainian Institute for the Study of Extremism.

Related: Why Anti-Corruption Bureau searched Kyiv District Administrative Court and State Judicial Administration?

"Zelensky's aim is to create various counterbalances. For example, the parliament as a whole and the mono-majority in particular serves as one of such counterbalances. The same works with Saakashvili. Despite the fact that he is a downed pilot, he is a rather striking character who would also pull back negativity from the Office of the President," Petrenko is convinced.

Therefore, if something happens, the failure of the judicial reform can be attributed to the insufficient diligence or incompetence of Saakashvili. The system of Ukrainian justice will definitely not improve from such games, but the government will gain some time.

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