A lone voice in the wilderness: On the first anniversary of the discussion of the “Kiev recommendations on Judicial Independence in Eastern Europe, South Caucasus and central Asia”
One year ago, on October 5, 2010, the so-called “Kiev Recommendations” (full title, “Kiev Recommendations on Judicial Independence in Eastern Europe, South Caucasus and Central Asia”) were discussed and then approved at the Annual Conference of the Organization for Security and Co-operation in Europe (OSCE). These recommendations were developed and adopted by a group of experts at a meeting organized by the OSCE Office for Democratic Institutions and Human Rights and the Max Planck Institute for Comparative Public Law and International Law on June 23-25 in Kiev. Forty independent experts, among them prominent scholars and senior practitioners from nineteen OSCE participating states and from the Council of Europe and its Venice Commission, got together in order to discuss one of the most pending issues for all post-Soviet states: the question of strengthening judicial independence.
These experts faced the following complicated tasks:
• To analyze the problems existing in the area of judicial independence together with the experience of judicial reform in post-Soviet states;
• To identify positive experiences and examples from the participating states;
• To propose measures and practical ways for strengthening judicial independence to be recommended to the OSCE Office for Democratic Institutions and Human Rights and to the participating states.
The purpose of the Kiev Recommendations is to further strengthen judicial independence in the region within three selected areas:
• Judicial Administration with a focus on judicial councils, judicial self-governing bodies and the role of court chairs;
• Judicial Selection — criteria and procedures,
• Accountability of Judges and Judicial Independence in Adjudication.
The Kiev Recommendations are strong, first and foremost, because they contain a precise definition of the vulnerabilities shared by all the states that experienced the hardships of authoritarianism and totalitarianism, i.e. the problems typical for the initial stages of developing democratic institutions and a transitioning to a market economy. Unfortunately, such problems are, to a certain extent, present today both in Russia, and in other post-Soviet states.
Granting decisional independence to judges can be difficult when judges need to adjust after being trained and practicing law under Soviet rule and now working under the needs and requirements of the market economy. The question of modifying the legal consciousness of the judicial community is one of the most complicated issues. Judges must eventually recognize that their main duty is to administer justice, not render assistance to authorities in the course of performing judicial functions.
Also, judges must realize that while handling a case, they do not constitute an element of some judicial hierarchy — on the contrary, they perform the administration of justice and do so as independent arbitrators instead of subordinates to court chairpersons and upper courts. The problem of self-identification of judges is still on the agenda: so far many judges feel like governmental officials in charge of protection of the state, and act accordingly.
The authors of Kiev Recommendations propose a set of efficient ways to solve the aforementioned problems, among them:
• Termination of binding directives, explanations, or resolutions of the high courts for lower court judges;
• Development of clearly formulated, transparent and uniform criteria for professional evaluation of judges;
• Setting up of a special independent body (court, commission or council) to adjudicate cases of judicial discipline;
• Withdrawal of administrative decisions (and, first of all, case assignments) which may affect substantive adjudication from the exclusive competence of court chairpersons;
• Limitation of the role of court chairpersons and ensuring of transparent and independent procedure of appointment of court chairs.
On December 9, 2010, the Kiev Recommendations were discussed in Russia during the course of a round-table organized by the Institute of Contemporary Development (INSOR), the OSCE Office for Democratic Institutions and Human Rights, and the INDEM Foundation. The event was attended, among others, by several key players of Russian judicial reform. They've heard the recommendations. Sapienti sat (a word to the wise is enough).
