NATIONAL SCHOOL OF JUDGES OF UKRAINE: FUTURE OUTLOOK

Natalia Shuklina,
temporary acting Rector of the National School of Judges of Ukraine,
Doctor of Law, Professor

 

Alexander Ishchenko
Head of scientific and methodological support of the High Qualification Commission of Judges of Ukraine
National School of Judges of Ukraine

 

NATIONAL SCHOOL OF JUDGES OF UKRAINE: FUTURE OUTLOOK

 

“The role of the National School of Judges in training judges
is becoming more and more indispensable”
From the annual message of the President of Ukraine to the VerkhovnaRada
“On the internal and external situation of Ukraine in 2012”

 

Independence, impartiality and professionalism of judges are sine qua non of a fair trial. Mastering professional skills at special career-oriented courses is a guarantee of the high level of proficiency for candidates to a judicial position and current judges alike. Thus, the demand of paragraph 50 of the Opinion № 3 (2002) of the Consultative Council of European Judges (hereinafter - CCJE) stating that judges must ensure a high level of professional competence is absolutely reasonable [1].

Clause 12 of the Opinion № 4 (2003) of CCJE [2] recommends that, in each country, the legislation on the status of judges should provide for the training of judges. The Law of Ukraine "On the Judicial System and Status of Judges" (hereinafter - the Law) establishes the right of judges to improve their level of proficiency and pass appropriate training, and states their obligation to take a two-week training course at the National School of Judges of Ukraine with a certain periodicity. In accordance with the Law, candidates to a judicial position shall listen to a special six-month course. The Law “On the Judicial System and Status of Judges” introduced such course and its practical implementation began in February 2013. According to the Law, the National School of Judges of Ukraine is commissioned only for the organization of special training, while its implementation is the responsibility of the legal institutions of higher education, the list of which is approved by the High Qualification Commission of Judges of Ukraine. The 2013 list included such establishments as Kyiv National Taras Shevchenko University, Ivan Franko National University, National University "Yaroslav the Wise Law Academy of Ukraine", National University "Odessa Law Academy" [3]. 

Still, the question remains whether the stated practice fully meets the European approach and values.

According to the European standards, the conception of training programs and their implementation should be entrusted to a special autonomous body with its own budget and which should work in consultation with judges (clause 65 of the Opinion № 10 (2007) of CCJE "The Judiciary at the service of society") [4].

According to the Recommendation CM/Rec (2010) 12 of the Committee of Ministers of the Council of Europe member states on judges: independence, efficiency and responsibilities (adopted by the Committee of Ministers on 17 November 2010). According to these provisions, Judges should be provided with theoretical and practical initial and in-service training, entirely funded by the state. An independent authority should ensure, in full compliance with educational autonomy, that initial and in-service training programmes meet the requirements of openness, competence and impartiality inherent in judicial office (Art. 56-57) [5].

However, legal norms should not detail the content of training, but to entrust this task to a special body responsible for drawing up the curriculum, providing the training and supervising its provision. The state is obliged to provide the judiciary or other independent body that is responsible for organizing and supervising the training of judges with the necessary means, and to meet the costs incurred by judges and others involved. CCJE recommends that under the authority of the judiciary or other independent body training shall be entrusted to a special autonomous establishment with its own budget, which shall operate in consultation with judgesand thus devise training programmes and ensure their implementation (clauses 10-11, 17 of the Opinion № 4 (2003) of CCJE ).

According to the recommendation 19 of the “Kiev recommendations on judicial independence in Eastern Europe, South Caucasus and Central Asia" [6] adopted on a regional expert meeting on Judicial Independence in Kiev on ​​June 23-25, 2010, where schools for judges are part of the selection procedure (judges - N.Sh., O. Ishch.), they need to be independent from the executive.

According to the Law of Ukraine "On the Judicial System and Status of Judges" the National School of Judges of Ukraine is a public institution with a special status that provides training of qualified personnel for the judicial system and leads research activities. The legislation on higher education is not applicable to the National School of Judges of Ukraine. It is established under the High Qualification Commission of Judges of Ukraine, in which the majority of members are judges elected by their peers. Thus, legally and practically the National School of Judges of Ukraine is the special autonomous body responsible for organizing and conducting initial training for candidates to a judicial position, and in-service training for judges and court staff.

According to paragraph 1 of Part 1 of Article 82 of the Law of Ukraine "On the Judicial System and Status of Judges" the National School of Judges of Ukraine organizes special training for candidates to a judicial position. The previous version of this normative prescription provided for organizing of practical training for candidates to a judicial position. The theoretical training was the responsibility of the specialized law universities of the fourth accreditation level. The latter approach found no support among European experts, who recommended putting the whole system of training of judges under the control of the judiciary [7].

Still, there is terminological discrepancy even in the new Law. In particular, Articles 66, 69 and 82 provide for the special training, while Article 91 uses the notion of professional training of candidates to a judicial position in the National School of Judges of Ukraine. The content of special training includes theoretical and practical training, while the content of professional training remains unknown; and the most correct way to find it out is to make appropriate amendments to the Law.

Completing of permanent professor’s staff of their own is a separate sphere of activity of the National School of Judges of Ukraine. Such practice is common to European countries (e.g. the National School of Judges of France, the Spanish Judicial School, Portugal Centre for Judicial Studies, the Greek National School of Judges) [8, p. 54-55, 79, 82, 86]. Clauses 20-21 of the Opinion 4 (2003) of CCJE state that it is important that training is carried out by judges and by experts ineach discipline, and when judges are in charge of training activities, it is important that these judges preserve contact with court practice.

This is why paragraph 4 of Article 53 of the Law of Ukraine "On the Judicial System and Status of Judges" provides that a judge, upon their request, may be seconded to work (to the National School of Judges of Ukraine, in particular) with preserving salary from primary employment. However, the legislation does not establish the effective legal mechanism of its realization. Therefore, there is an urgent need to define by law the rights, obligations and professional guarantees to judges, to determine the legal procedure of such mission (expression of initiative, preparation of documents), conditions for practical involvement and forms of engagement in educational and research activities at the National School of Judges of Ukraine.

This approach will facilitate the formation of a powerful teaching capacity of the National School of Judges of Ukraine and create the necessary conditions for implementation of the priorities set forth by the Strategic Plan for the Ukrainian judiciary for 2013-2015 [9]; namely, to develop national standards for professional training of judicial candidates, ongoing training for judges and training of court staff, incorporate them into developing and implementing training programs for judges and court staff, system for evaluation, faculty requirements etc., in particular, while introducing special training of chiefs of staff, training programs on software usage, ethics programs etc. (paragraph 6.3. of the Strategic Plan).

In order to avoid possible accusations of bias towards the issue of development of training curriculum for judges and its implementation, we present the opinions of independent experts. In the report of the working group on "Professional legal system" experts from the European Union and the Council of Europe made ​​a number of comments and suggestions concerning the procedure of obtaining judicial education[10, p. 27, 58], including:

1. to clearly separate, on the one hand, the monitoring of teaching process (High Qualification Commission of Judges of Ukraine) and, on the other hand, the drawing up the curriculum, providing the training and supervising its provision (National School of Judges of Ukraine);
2. to strengthen the position of the National School of Judges of Ukraine as an autonomous body in training of judiciary;
3. to deprive legal institutions of higher education of the power to make decisions concerning training of judges, otherwise the process of initial training may be reduced to theory or extension of university programs, instead of necessary professional practice;
4. to reduce engaging universities to initial training, as it may lead to discrepancy in the amount of theoretical knowledge and practical skills received by the students. Such system can not guarantee the unity of judicial standards and equality of competitive conditions in the preparation for the final exam;
5. to articulate the terms of funding of professional training;
6. to set thatthe minimum length of initial training shall be at least one year;
7. to designate the National School to be the only body responsible for practical training and have a critical role in theoretical training that is not reduced to organizing.

It is clear that the listed issues do not encompass the whole array of problems of judicial education in Ukraine. Still, the article outlines the most pressing issues, which is the first step towards their solution.

We believe that the vector of judicial education in Ukraine is positive, as even critically-minded national experts greet the legal novels of 2010, including the introduction of practical training for candidates and in-service periodic training for judges [11, с. 58].

Training of highly qualified personnel for the judicial system in line with international and European standards should be a national priority.

The next step in the implementation of the judicial reform of 2010 is bringing the legal status of the National School of Judges of Ukraine in line with European and international standards. Institutional and legal strengthening of the status of the National School of Judges of Ukraine requires additional resources to support the learning process with modern information, computer and telecommunication equipment, to provide classrooms and hostels for candidates, to cover expenses on maintaining the teaching staff. However, these costs are relatively minor on a national scale and are to be repaid a hundredfold.

References:

1. Opinion no. 3 of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the principles and rules governing judges' professional conduct, in particular ethics, incompatible behaviour and impartiality [Elektronnyyresurs] // Rezhymdostupu: https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE%282002%29OP3&Sector=secDG HL&Language=lanEnglish&Ver=original&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3
2. Opinion no 4 of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on appropriate initial and in-service training for judges at national and European levels [Elektronnyyresurs] // Rezhymdostupu: https://wcd.coe.int/View Doc.jsp?Ref=CCJE%282003%29OP4&Sector=secDGHL&Language=lanEnglish&Ver=original&BackColorInternet=FEF2E0&BackColorIntranet=FEF2E0&BackColorLogged=c3c3c3
3. RishennyaVyshchoikvalifikatsiynoikomisiisuddivUkrainy vid 9 zhovtnya 2012 roku № 211/pp-12 [Elektronnyyresurs] // Rezhymdostupu: http://nsj.gov.ua/files/1356526313rishennya.pdf
4. Opinion no.10(2007) of the Consultative Council of European Judges (CCJE) to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society [Elektronnyyresurs] // Rezhymdostupu: https://wcd.coe.int/ViewDoc.jsp?Ref=CCJE%282007%29OP10
5. [Elektronnyyresurs] // Rezhymdostupu: http://zakon2.rada.gov.ua/ laws/show/994_a38/print1362495600205299
6. [Elektronnyyresurs] // Rezhymdostupu: http://www.osce.org/uk/ odihr/86319?download=true
7. Dyv.: P. 49 SpilnohovysnovkushchodoZakonuUkraïny «Pro sudoustriyi status suddiv» (CDL-AD (2010)026), pidhotovlenohoVenetsianskoyukomisiyeyu ta Dyrektsiyeyu z tekhnichnohospivrobitnytstvaHeneralnoiDyrektsii z pravlyudyny ta pravovykhpytanRadyYevropy, ukhvalenoho 15- 16 zhovtnya 2010 rokuna 84-mu plenarnomuzasidanniVenetsianskoïkomisiu [Elektronnyyresurs] // Rezhymdostupu: http://www.scourt.gov.ua/clients/vs.nsf/0/285DC84A1EFF78FAC22577C20051A2...
8. DzhakomoOberto. Podbor y podhotovkasudey v Evrope: sravnytelnoeyssledovanye. – K.: Proektpouluchshenyyudeyatelnostysudebnoyvetvyvlasty, 2007. – 142 s.
9. [Elektronnyyresurs] // Rezhymdostupu: court.gov.ua/userfiles/ Strateg%20plan.doc
10. Doklad «Podhotovkasudey» rabocheyhruppy «Professyonalnyesudebnyesystemy» v ramkakhprohrammy ES y SE «Sodeystvyepravovoyreforme v stranakhVostochnohopartnerstva» // Heneralnayadyrektsyyapovoprosampravcheloveka y verkhovenstvaprava. – Strasburh, may 2012. – 273 s. [Elektronnyyresurs] // Rezhymdostupu: http://www.coe.int/t/dghl/
11. Sudovareforma v Ukraïni: potochnirezultaty ta nayblyzhchiperspektyvy. Informatsiyno-analitychnimaterialy do Fakhovoidyskusiinatemu «Sudovareforma 2010 r.: chynablyzhayevonapravosuddya v Ukraini do yevropeyskykh norm istandartiv?». 4 kvitnya 2013 r. – K.: TsentrRazumkova, kviten 2013. – 130 s.
12. PoslannyaPrezydentaUkraïny do VerkhovnoïRadyUkraïny «Pro vnutrishnye ta zovnishnyestanovyshcheUkrainy v 2012 rotsi» [Elektronnyyresurs] // Rezhymdostupu: http://www.president.gov.ua/docs/posl.pdf