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Government spending on judicial education

Oleksandr Ischenko

Chief of scientific and methodological support of the

High Qualification Commission of Judges of Ukraine

National School of Judges of Ukraine

Candidate for the SJD (Doctor of Juridical Science)

UDS 336.5

Government spending on judicial education

This article is devoted to various problems and mechanisms of government expenditure on judicial education in Ukraine.

Keywords: judicial education, government spending, the National School of Judges of Ukraine.

One of the pillars of the rule of law is the independence of judiciary, which in turn should act as a guarantee of judicial independence. Judicial independence is a multidimensional category in the law science. A separate edge of this category is the financial independence of judiciary from other branches of State power.

Magna Carta of Judges [1] approved by the Consultative Council of European Judges (hereinafter - CCJE) on 17 November 2010 in Strasbourg, states that judicial independence must be guaranteed, particularly in terms of training (learning), wages (compensations) and financing of judiciary [1].

According to the expression of Italian judge and expert of Council of Europe, Giacomo Oberto - the perennial problem of ensuring the independence of judiciary is, among other things, the provision of adequate remuneration for work and providing special (privileged) status for judges. Judicial training is most closely associated with the independence of judiciary [2, p.29]. The cornerstone of judicial independence is "freedom from illiteracy" [2] as "a well-trained judge is more independent" [3]. Not for nothing, in paragraph 50 of the Report № 3 (2002), the CCJE recommended judges to provide a high level of professional competence. [4]

Professional judiciary environment won't object the thesis that the key to maintaining the professionalism of judges - is passing of special vocational-oriented training courses. European standards for independence, efficiency and responsibilities of judges explicitly provide that a judge, should be provided with theoretical, practical initial trainings and on-the-job trainings, as well as be funded in the full scope by State (p. 56 of Recommendation CM / Rec (2010) 12 of Committee of Ministers of the Council of Europe to the member states with respect to the judges: independence, efficiency and responsibilities) [5].

In paragraphs 11 and 12 of the OPINION No. 4 (2003) of CCJE [6] it is recommended that legislation of each country should include the need for training in the rules governing the status of judges and the State has a duty to provide judiciary, or other independent body responsible for organizing and supervising of trainings with all necessary means, and to meet the costs incurred by judges and others involved.

According to European standards, training programs should be entrusted to a special autonomous body (e.g. a training academy) with its own budget and which should work in consultation with judges (p.65 of the Opinion no.10 (2007) of the CCJE "the Council for the Judiciary at the service of society") [7].

Problems of institutionalization of a system of specialized education for judges in Ukraine did not get, with a few exceptions [3], in the sphere of scientific interests of the Ukrainian legal scholars. Such issues were considered in the context of the status of judges by O.S. Zakharova, V.T. Malyarenko, I.E. Marochkin, L.M. Moskvich, S.V. Pryluckiy. Issues of financial and legal support of National institution of judicial education in Ukraine at the level of scientific debates itself, was not specifically raised.

Considering this, the neglected issues are the budget request development for the preparation of proposals to the draft State budget in terms of ensuring the National School of Judges of Ukraine, determination the volume of annual funding needs, as well as scientific understanding of the financial and legal status of the National School of Judges of Ukraine as a State budget institution with special status.

The purpose of this article is to analyze some aspects of government expenditure on judicial education and identifying key areas of budget legislation improvement in the context of strengthening mechanisms for government spending for the purposes of the National School of Judges of Ukraine, through the prism of European standards and best international practices.

For the start, different characteristics of the National School of Judges of Ukraine, as a legal entity should be clarified. Undoubtedly, it is a legal entity of public law, as it was established by an administrative act of a State body, exactly by the High Qualification Commission of Judges of Ukraine [8]. According to the organizational and legal form the National School of Judges of Ukraine (hereinafter – the NSJU) refers to the institutions, and in accordance with Article 81 of the Law of Ukraine "On the Judicial System and Status of Judges" (hereinafter - the Law) is an institution with a special status [9].

From the standpoint of the budget law, in particular Article 2 of the Budget Code of Ukraine [10] the NSJU is a budget institution, as is fully financed from State budget. Professor L. Voronova determines budgetary institution and organization, as an entity of non-production sector (social security, culture, science, defense, public administration, etc.) whose activities are financed from State budget [11, p.292].

Systematic analysis of the wording of Article 81 of the sixth paragraph of Articles 142 and 144 of the Law provides ground for the conclusion that the legislator considers the National School of Judges of Ukraine in the judicial system and its employees - to the judiciary, equating them in terms of wages to state employees.

Financial and legal scientific literature rightly emphasizes that the term "budget institution" unites a variety of groups, organizations, each with its own characteristics, which results in a wide range of legal regulation [12, p. 9]. In explanatory dictionaries the concept of "institution" is defined, as an organization (with certain staff and administration officials) in charge by any area (areas) of the economy, trade, culture, science and operates in this area (areas) [13, p. 497; 14, p. 1517]. Another type of institutions are institutions of scientific, educational, cultural and other profile [4] .On my opinion, the National School of Judges of Ukraine is the institution of judicial education, which is also authorized to carry out scientific and research activity .

Concerning the provision of educational services (training services) for the judicial system of Ukraine the NSJU conducts training of three main groups of students: 1) training and periodic training of judges in order to improve professional competence; 2) organizing special training for the candidates; 3) training of court staff.

Part three of Article 54 of the Law guarantees the right of a judge to improve own skills and pass for this purpose an appropriate training. At the same time, part 6 of the same Article establishes the obligation for judges to undergo periodic training at the National School of Judges of Ukraine: judges, appointed for the first time - annual two-week training; for judges elected indefinitely - two-week training at least every three years. Thus, the Law establishes a right-duty of judges to raise their own professional skills throughout trainings.

According to paragraph 8 of Article 24, paragraph 8 of Article 29, paragraph 11 of Article 34 of the Law, Heads of local, appeal, and high specialized courts are entrusted with the duty to enforce the requirements of judges training in the relevant court.

Article 69 of the Law stipulates that judicial candidates should be trained for six months. Such training has to be committed on the expenses of the State Budget of Ukraine and the organization of such training - by the National School of Judges of Ukraine.

Paragraph 2.3 of the European Charter on the Statute for Judges provides that the law should guarantee proper training at State expense of candidates selected for the effective duty performance. Once, L.M. Moskvich noted that funding of training programs for the candidates should be provided on the State budget expenses [15, p. 168]. Funding for such training, on my opinion, should include on the one hand, the cost of maintenance of educational facilities, practice bases, lecturers wages, supervisors promotion, new training programs development, on the other hand - the payments for candidates for the post of judge the guaranteed scholarship, according to the Law, costs compensation related to transportation, apartment renting and so on.

A separate category of the NSJU hearers are the court staff. The NSJU works closely with the State Court Administration of Ukraine, which forms the State order for the court staff specialists, provides the necessary conditions for qualification improvement.

Current legislation of Ukraine provides a centralized system of government expenditures on judicial education, i.e. through the State Court Administration of Ukraine (main disposer entity) and the National School of Judges of Ukraine (lower level disposer entity). However, in practice a part of trainings for judges occur without the NSJU involvement, including through internal educational activities such as: seminars, conferences, round tables, etc. Expenditures on these measures may be carried out through the relevant court budget. Thus, we deal with latent expenditure decentralization that however, is the exception from the rule.

According to the classification program of expenditures and budget financing, the State funding for the National School of Judges of Ukraine is carried out under the program named "Organization of special training for candidates for judicial office, training of judges and court staff by National School of Judges of Ukraine." The purpose of this budget program, according its passport - is to meet the needs of the judicial system of Ukraine in qualified employees, and increase the professional level of judges and court staff. The objectives of this program budget are:

- organization of special trainings for judicial candidates;

- ensuring the proper level of training for judges and court staff;

- conduct researches on justice system improvement;

- study of judicial administration international experience;

- scientific and methodological support of court of general jurisdiction activity, the High Qualification Commission of Judges of Ukraine and the High Council of Justice of Ukraine.

Among the areas of the budget funding is the organization and conduction of special training for the judicial candidates, as well as training for judges and court staff.

In order to evaluate the effectiveness of the said budget, the cost effective indexes, product performance and quality, which are determined in accordance with the general requirements for the definition of performance indicators of budget program [16] and Model List of budget programs performance indicators [17] are applied. It should be noted that this List, which is used in the functional classification of expenditures under section 0950 "Postgraduate education" does not fully correspond the practical realities of the National School of Judges of Ukraine. It includes such a performance indicators, as more attributable to the "classical" institutions of postgraduate education, mainly operating in the Ministry of Education and Science.

On the National School of Judges of Ukraine in accordance with the first paragraph of Article 81 of the Law, the law on higher education does not apply, so the individual performance indicators, such as the number of staff and specialized scientific councils, academic councils, graduate/doctoral students, dissertations taken to consideration, other are not applicable. Instead, in practice occur the necessity of development and implementation of quantitative and qualitative indicators, register that would fully meet the needs of evaluation of effectiveness of the relevant budget program by the National School of Judges of Ukraine.

It should also be noted that, at the moment there are no national target programs that were running under the National School of Judges of Ukraine, although this situation is not justified, given the tasks performed by this institution. Thus, the Law stipulates that the National School of Judges of Ukraine, because of its special status carries out research activities. Moreover, this institution is the only legal (legally defined) center for the research of judicial system.

In its financial activities the NSJU adheres to the following basic principles of Government expenditures: 1) the principle of domain-purpose funds; 2) the principle of maximum efficiency (i.e. financial security of public interests at minimal cost); 3) the principle of adherence to the economy, which leads to maximum efficiency in the process of making expenditures; 4) the principle of financial control to ensure compliance with state financial discipline [18, p. 85-86].

In the context of Association Agreement between Ukraine and European Union a very specific importance obtains the examination of European practices for judicial education funding.

Development and promotion of judicial education is one of the priorities of the EU, as it stated in the Communication from the Commission of 13 September 2011[19]. In 2007-2010, for training needs of judicial personnel through financing and co-financing educational projects was spent 35.5 million Euros. Total number of lawyers who were trained ranged from 4 to 9 thousand persons annually. However, such a number of people are found to be insufficient in the view of approximate size of the target audience and the need to maintain relevance of knowledge on the EU legislation.

According studies, conducted by the European Parliament institutions, as of 2010, the total aggregate (consolidated) budget of EU member states in terms of spending on primary (before assuming office) training court personnel (judges, prosecutors and younger judicial staff ) totaled 73,235,435 Euros (the number of participants in training programs - 2764 persons). In retraining and training the EU member states spent in 2010 collectively 52,931,435 Euros (on 136 769 participants) [20, p.104-105].

According to the analytical data of experts of the European Commission for the Efficiency of Justice (the CEPEJ) of the Council of Europe, according to statistical data of budget 2010, in 23 EU countries on average 0.6% of government spending on the judicial system (courts, public prosecution system maintenance, system of free legal aid) were accounted for training (education) of staff [21, p. 8].

So we can see that the question of appropriate funding of judicial education is especially important issue for the EU and its member states, what is displayed in the language of numbers.

Very interesting and practically useful is the experience of funding of educational programs for judges in Canada. Thus, the National judicial institute of Canada (hereinafter - NJC) is funded from several sources. The so-called "basic funding" NJC receives from the federal and provincial governments and territories (its distribution - 50 to 50%) in the amount of about 600-700 thousand Canadian dollars each year. This funding covers only part of the organizational needs of the institution. For comparison the average annual budget of NJC is about 10 million dollars [5] .

The main source of incomes for the implementation of the statutory activities of the NJC proceeds from training programs and seminars for judges, including distance learning, as well as incomes from the special education programs on computer mastering. The legal basis for such type of funding is Article 41 of the Canadian law on judges [6] [22].Thus, judges of the higher courts who attend conventions, conferences or seminars on issues of justice (law enforcement), judges being required to attend by the law, or judges who in consultation with the head of the court attend any meetings, conferences or seminars, and if the judge have particular responsibility to attend, shall be granted the right to pay for participation in the conference, transportation and other reasonable expenses actually incurred by such participation.

Certain sources of the NJC incomes are the receipts within the frameworks of international cooperation projects (aimed at the development of institutions offering professional training for judges or development of training activities for judges) and within special government projects (Ministry of Justice, Ministry of Indian Affairs and Northern Development Canada, Penitentiary Service, Ministry of Environment of Canada).

Thus, on the NJC example we can see fundamental differences in approach to the financial engineering, so the amount of the resources depends on the effectiveness of educational programs for judges. The more program participants will be involved, the bigger funding the NJC will get. Despite the fact that the participation in trainings for judges in Canada is not mandatory, but based only on their willingness and goodwill.

Let's examine the domestic realities. From 2011 to 2014 funds from the State Budget of Ukraine on the NSJU functioning were allocating in insufficient amount. The institution development expenditures, except an insignificant amount in 2013, were not even predicted, what seems really unfair, considering the National importance of the task of forming highly qualified judges through recruiting and training of best lawyers.

In 2014, from the general fund of the State Budget of Ukraine for consumption expenditures for the National School of Judges of Ukraine are allocated in the amount of 27437.6 thousand UAH [23]. For comparison, The National School of Judiciary and Public Prosecution in 2014 received from the National received from the State budget by section "Justice" 42 124 thousand Zloty (PLN) [24] and additionally from section "regional development" under the co-financing of projects involving EU 655 thousand PLN.

Providing financing of judicial education by the "leftovers" principle, officials were able to find much bigger resources for other special education institutions. Thus, in the State Budget of Ukraine for 2014 allocated:

- on "training for law-enforcement officers by higher education institutions of III and IV levels of accreditation" - 690,572.4 thousand UAH (including the development expenditure - 13963.1 thousand UAH).

- on "training for Internal Troops of Ukraine by higher education institutions of III and IV levels of accreditation" - 97434.4 thousand UAH (inc. the development expenditures - 340 thousand UAH);}

- on "training and professional development by the National Academy of the State Border Service of Ukraine" - 139,602.5 thousand UAH (inc. the development expenses - 652.9 thousand UAH);

- on "training and professional development in the field of income and fees by higher education institutions of III and IV levels of accreditation" - 209 588 thousand. UAH. (inc. the development expenditures - 1000 thousand UAH).

- on "training and retraining of the Security Service of Ukraine officers by higher education institutions of III and IV levels of accreditation" - 180,356.6 thousand UAH. (inc. the development expenses - 627.5 thousand UAH).

To summarize, let's note that the proper training for the judiciary in line with international and European standards should be our National priority and the key objective for improving the efficiency of judicial system of the country. Activities for institutional and financial strengthening of the National School of Judges of Ukraine, of course will require certain additional allocations from the State Budget of Ukraine and first of all for the study facilities development, modern information, computer and telecommunications equipment, facilities for judicial candidates accommodation during trainings period, expansions on the own teaching staff maintenance. However, these costs will pay off handsomely in a relatively small section of the scope of National consumptions. Let's remember that the miser pays twice!

References:

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[1] Magna Carta of Judges.

[2] Giacomo Oberto "freedom from ignorance».

[3] See .: Kuznetsova N. question of the training of judicial staff / N.Kuznetsova // Laws of Ukraine. - 2010. - № 5. - S. 25-29; I.Voytyuk and European standards in Ukrainein training of professional judges / I.Voytyuk // Bulletin of the Supreme Court of Ukraine. - 2008. - № 2 (66). - P. 32-37; N.Shuklina National School of Judges of Ukraine: A Look into the Future / N.Shuklina, O.Ishchenko // Bulletin of the High Qualification Commission of Judges of Ukraine. - 2013. - № 1. - P. 14-17, M.Melnyk Proper training of judges as a part of judicial reform: international experience and its adaptation to national legislation / M.Melnyk // Bulletin of the High Qualification Commission of Judges of Ukraine. - 2013. - № 2. - P. 8-12.

[4] The definition of "institution" - see .: [14, p.395].

[5] It should also be mentioned that there are about two thousand judges in Canada, while in Ukraine they are much more - more than eight thousand.

[6] Judges Act.

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