Mykola Melnik
PhD of Law, Member of the
High Qualification Commission
of Judges of Ukraine
The article is devoted to suggestions about a perfection of the legal adjusting of professional training of judges in the context of the realization of judicial reform in Ukraine. These suggestions are offered on the basis of international experience of a realization of professional training of judges and the methods of its adaptation in the domestic legislation.
Key words: professional training, judge, judicial reform, international experience, adaptation.
The efficiency of the judicial system in the protection of fundamental rights and freedoms of natural persons and legal entities is the strategic priority of the judicial reform.
Resolution 1755 (2010) of the Parliamentary Assembly of the Council of Europe (PACE) [1] indicates that that the reform of the judiciary and justice system is essential for the consolidation of the rule of law in Ukraine. It should be undertaken with a view to eliminating all forms of corruption in the judiciary and ensuring its independence. It also states that without constitutional amendments it will not be possible to reform the judiciary in line with European standards and values; and calls upon the authorities to ensure that the justice system is sufficiently funded from the state budget, as the current situation of chronic underfunding increases the potential for corruption and undermines the rule of law [2].
Highly qualified judiciary, efficient court staff and state guarantees occupy an important place among the tasks of the judicial reform. It is no accident that in the Commission of Justice for the Constitutional Assembly the largest debate was around the issue of the organization of judiciary.
Thus, at the meeting of May 17, 2013 the issues of cancellation of judicial appointment for the first time (the so-called “trial period”), improvement of the procedure for appointing judges to administrative positions, and place and role of the High Council of Justice in the judicial system of Ukraine were the subject of discussion [3].
The complicacy of the problem of efficient court staffing is due to the peculiarity of judge’s work. In this respect, I. A. Voytyuk indicates that professional judges are carriers of the judicial power in Ukraine and administer justice independently of the legislative and the executive branches. This is what distinguishes them from other representatives of legal profession. The profession of a judge is of the highest social value, as they ensure the rule of law, justice, protection of human rights and freedoms, constitutional and public interest. Only the judge is granted the legal right to revise the legal position of defender and prosecutor, evaluate the findings of inspector, analyze witness evidence, and make decisions in cases in the name of Ukraine [4].
Improvement of the procedure for judicial selection will ensure the quality of judicial staff. In this context, it is interesting to regard the proposal by V. D. Bryntsev to define criteria for selection of candidates for appropriate training based on criteria developed by world science for managers. However, these criteria should be adapted so as to take into account the peculiarities of judicial activity. The scholar proposed to place these criteria in the following order: the ability to control oneself, the ability to manage conflict in emergency situations, reasonable personal values, continuous professional perfection, prerequisites to problem-solving skills, high ability to influence others, knowledge of management [5].
At the same time, the proposed criteria allow to fulfill the "managerial" component of professional activity of future judges, related to execution of one of the most important state functions – administration of justice, which includes not only management, but also, which is more important, high professionalism, integrity, self-organization, etc.
It should be noted that with the establishment of a special institution for the training of judges, namely the National School of Judges, Ukraine started the implementation of international standards in this matter. In particular, the requirements of paragraph 2 of the Conclusions of the First Study Commission «Recruitment and Training of Judges in Modern Society» (1996) stipulating that the judge shall acquire special skills, obtaining of which was not provided by university [6].
However, the establishment of the National School of Judges of Ukraine by securing the corresponding provisions in the Law of Ukraine "On the Judicial System and Status of Judges" [7] does not solve all existing problems of training of judges.
First and foremost it is necessary to introduce lawyer preparation standards. The issue of legal education improvement has been repeatedly debated in public, due to a large number of law graduates with simultaneous deficit of qualified lawyers [8]. The Ministry of Justice of Ukraine has also emphasized the need to improve the training of lawyers [9].
In his interview to the magazine "Veche" the President of the Academy of Sciences of Ukraine, Rector of the National University "Yaroslav the Wise Law Academy of Ukraine”, Academician of the National Academy of Sciences of Ukraine V. Ya. Taciy mentioned that up to 1991 there had been five universities and Donetsk Economics and Law Faculty in Ukraine that prepared lawyers not only for Ukraine, but, in fact, for the half of the Soviet Union. Today there are about 250 law schools in Ukraine, some of which do not have an appropriate material base and skilled teaching personnel. This is not only harmful, but even dangerous for the state and society, as well as for graduates of universities. And it is no accident that lawyers today top the unemployment ranks [10].
We should pay special attention to the fact that graduates of higher legal educational institutions usually do not have specialized training in the area of judicial activity. Still, there are some exceptions, for example, such training is provided at the faculty of professional judges training at the National University "Yaroslav the Wise Law Academy of Ukraine” and the Institute of professional judges at the National University "Odessa Law Academy".
It should be kept in mind that even the existing provisions of current legislation do not clearly state the requirements for educational qualification to judicial candidates. Thus, the Law of Ukraine "On Higher Education" [11] lists the following levels of educational qualification: incomplete, basic and complete (Part 1 of Art. 6). The Constitution of Ukraine among the requirements to judicial candidates lists, in particular, the presence of higher legal education (Part 3 of Paragraph 127) [12]. Educational qualification of candidates is not specified in the Law of Ukraine "On the Judicial System and Status of Judges". Part 1 of Article 51 of the Act provides that a judge shall be a citizen of Ukraine who, pursuant to the Constitution of Ukraine and the Law, has been appointed or elected to a judicial position, holds a permanent judicial position in one of the courts, and administers justice on a professional basis.
According to N. Kuznetsova only a person having the Master’s degree may apply for a judicial position. However, today, almost every university of the fourth level of accreditation prepares masters in several specializations. The scholar stresses the need to present and explain all peculiarities of the judicial job when presenting the role, functions and tasks of the judge to master students who prepare to future work in the court (including those, who intend to become judges) [13].
In this respect, it is noteworthy to pay attention to the Polish experience of training of judicial personnel. There to become a judge a candidate needs to have academic degree of Master of Legal Sciences of the Republic of Poland or be a graduate of foreign higher educational establishments recognized in Poland [14].
As early as 2000, N. Kuznetsova suggested that educational institutions preparing judicial personnel should coordinate the curricula for Master students with the High Qualification Commission of Judges of Ukraine (hereinafter – the Commission), which is responsible for conducting qualification examinations and other issues related to recruitment of judicial personnel [13].
However, the practical realization of this idea seems doubtful, due to related problems (namely, approval of curricula by the Commission) and absence of the relevant legal provisions. Besides, this brings up the issue of settlement of relations between the Commission and the Ministry of Education and Science of Ukraine, as according to the provisions of Article 81 of the Law of Ukraine "On the Judicial System and Status of Judges" the law on higher education of Ukraine shall not apply to the National School of Judges.
Therefore the problem of quality legal education is of systemic nature and can not be solved by mechanical reduction of the number of higher legal education institutions. One of the possible solutions may be to increase requirements for recipients of licenses for training legal personnel. In order to deliver more efficient and effective education in law faculties, it is necessary to increase the professionalism of lecturers and to provide faculties with sufficient infrastructure and technical equipment. Another issue to be addressed is the standard of legal education, which involves determining the quantity and quality of legal disciplines and requirements for control of acquired knowledge.
The experience of the Polish National School of Judiciary and Public Prosecution may be relevant in determining areas of improvement of professional training of judges. In Poland candidates to a judicial position pass special training, which consists of two stages. The stage of general training lasts for 12 months, during which participants attend lectures and workshops according to the training program. After each training stage, specified in the schedule of training, a participant must undergo a mandatory practice in general courts, prosecutor’s office or other related institutions. After completing general training candidates start special training, which lasts for 48 months. Only after the completion of all stages of preparation a judge shall be entitled to apply for the vacant post of judge in the District Court. [14].
Ukraine can use the Polish experience of judicial staff training concerning the introduction of practice and stages of training. However, in the existing conditions it is hardly appropriate to prolong the term of special training as this leads to additional problems associated with the need to provide additional legal employment guarantees. Nevertheless, it seems appropriate to introduce practical sessions in the process of special training of judges at the National School of Judges of Ukraine to facilitate the candidates’ adaptation to the profession.
In Ukraine requirements for candidates to judicial position concerning the special training are similar to those in France, where certificate and recommendation of the National School of Magistracy are necessary requirements to occupy the post of a judge or attorney. Graduates of law schools that have received basic legal training, as well as certain categories of public officials enter the National School.
After graduation, all trainees, regardless of the order of enrollment in school, compete for admission to the list of persons to be promoted in the Magistrates’ corps.
A crucial international requirement for judicial training is selection of lecturers from the number of the best specialists by the authority, responsible for the training of personnel. They are to be judges and experts in relevant spheres who have necessary knowledge and teaching skills [15, paragraph 20].
Criteria for the selection of judges have also been studied by domestic scholars [16, 17]. For example, in Germany future judges as well as all other lawyers study at law college (university). After graduation they pass the Referendar exam, i.e. the first state examination in oral and written form. A special commission created by the Ministry of Justice is responsible for the examination. The second stage of training is the so-called "preparatory service", i.e. a compulsory internship in courts, bodies of the executive branch, the bar association and, on the choice of a graduate, in some other institution [17].
Thus, the stages of judicial training exist not only in Poland, but also in France and Germany.
The Russian scientist N. I. Kleandrov notes that the mechanism of judicial selection lacks a "filter" that would reliably prevent the penetration of individuals, who can not be trusted in any case to be a judge. For example, candidates having a criminal record or a member of the organized crime group can be specially introduced to a specific court by these groups or corrupted commercial enterprises; as well as candidates with imprisoned relatives, gamblers, members of the totalitarian sect, or people with unstable mentality, etc. According to M. I. Klyeandrov, in foreign countries this issue is regulated by law. For example, in Germany an applicant for a judicial position provides to the police a trustworthiness certificate, in USA a candidate and his family are checked by FBI, in Canada after such check a candidate receives a special document that cannot be challenged in court, etc [18].
The term "special inspection" is applied to the inspection of special professional and moral qualities of the applicant which cannot be fully assessed by qualification examination. This allows revealing obstacles for occupying a judicial position that an applicant would prefer to hide.
To conduct a special inspection the High Qualification Commission of Judges of Ukraine has the right to gather information about the candidate and to request such information concerning the candidate from enterprises, institutions and organizations of all forms of ownership. After consideration of such requests the relevant information is presented to the Commission within ten days term. Non-provision of such information or late provision thereof shall entail liability provided by the law.
At the same time, organizations and citizens have the right to submit information on judicial candidates to the Commission (Part 2, Part 3 of Article 68 of the Law of Ukraine "On the Judicial System and Status of Judges").
It gives rise to a question as to violation of the personal rights of individuals by the special inspection. In this case such procedure is totally justified since it concerns the authorities empowered to decide the people’s fates. Thus, it is possible to support the idea by M. I. Kleandrov regarding the need to introduce the grounds hindering the occupation of a judicial position that are different from the regular.
The conducted analysis allows formulating the following conclusions. Provisions of the Law of Ukraine "On the Judicial System and Status of Judges" regulate only the general issues of training of the judiciary, while their specification requires correspondence of a number of current legislation norms, in the first place – the Constitution of Ukraine, the Law of Ukraine "On Higher Education" in relation to the educational qualification requirements for a candidate to become a judge. The international experience of judicial training proves that such training shall be provided in stages, and it is essential to introduce practical training. However, the implementation of the above proposals objectively entails the need to address the issue of improving the level of training of lawyers, the first step towards the solution of which may be the development and implementation of a standard of lawyers training, as well as amplification of the conditions to obtain the license and introduction of strict control over compliance with these conditions.
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