Observations
of the expert group on judicial reform of Reanimation Package of Reforms
on the draft law amending the Constitution of Ukraine regarding judiciary
The experts of the Reanimation Package of Reforms (RPR) highly appreciate the comments the Venice Commission expressed in the Preliminary Opinion on the proposed constitutional amendments regarding judiciary of Ukraine (CDL-PI(2015)016-e). We understand that due to the time constraints the Commission only with the main issues and did not assess the amendments exhaustively.
RPR experts made their own analysis of the proposed amendments. We agree with the key issues pointed out by the Commission. We also recognize the effort of the working group of the Constitutional Commission made on 3rd of August to follow the recommendations of the Venice Commission.
However, there are some provisions of proposed amendments that may have been left out of the scope of the Opinion, and which in our view go against the prior recommendations of the Commission and the European standards in general. If adopted as they are, these provisions may substantially undermine the effort made by the Constitutional Commission to create constitutional prerequisites for independent and fair justice in Ukraine.
1. The structure of courts.
1.1. Edition of the proposed amendments. According to article 125 of the proposed amendments “The Supreme Court shall be the highest court in the system of judiciary in Ukraine. The higher courts of the specialized courts shall be respective higher courts (Option: The higher specialized courts may function in accordance with the law). Entry 3 of clause 19 of Transitional provisions mentions “Supreme courts and courts of cassation”.
1.2. Opinion of the Venice Commission. In paragraphs 19 and 20 of the preliminary opinion (CDL-PI(2015)016-e) the Venice Commission states that “the system of specialized courts with their respective superior courts is maintained (according to the explanations provided to the Venice Commission delegation, this is foreseen for a transitional period, until the number of appeals on points of law will decrease). The Venice Commission has previously pointed out the need to unify the system of ordinary courts and to transform the high specialized courts into sections within the Supreme Court, with the (possible) exception of the high administrative court. This could help to ensure the harmonization of case-law and the uniform application of the law and avoid conflicts between courts and would diminish the bureaucracy. It would also reduce the length of the proceedings, which must be reasonable under Article 6 ECHR. Against this background, if the abolition of the specialized courts is not acceptable to the Ukrainian authorities, the second option proposed for paragraph 4 (to read “Higher specialized courts may function in accordance with the law”) should be supported. This would allow a later merger of the Supreme Court and the High Specialized Courts by way of ordinary legislation”.
1.3. Comments of the RPR experts. Experts agree with the need to unify the system of ordinary courts and to transform the high specialized courts into sections within the Supreme Court. We also think Supreme Administrative Court should be the highest instance court of a separate system of administrative courts.
It is unclear what “transitional period” the Ukrainian delegation had in mind (no such period was ever announced by the authorities to the public) and why the abolition of the specialized courts is not acceptable to the Ukrainian authorities.
Further merger of courts is not possible with any of the proposed editions, because it defines the Supreme Court as the highest court as opposed to higher courts, which explicitly puts the Supreme Court higher in the court hierarchy. Also, according to entry 3 of clause 19 of Transitional provisions “advocates shall exclusively exercise functions of defense against prosecution and of representation at the Supreme Court and courts of cassation – as from 1 July 2016”. That could render abolition of the high courts by ordinary legislation unconstitutional.
The transition from a four to a three-tier system would itself require specific transitional provisions of the Constitution, with the timeframe set for such transition.
Amending the constitution is also advertised by the Presidential administration as a final step of the reform of court system, which will make it efficient, accessible and in full compliance with the European standards, with amending the procedural legislation being the next immediate step. Thus, it is highly doubtful the issue of courts’ structure will be raised in the next years.
This will lead to conservation of the current system, which is is inefficient, unable to provide hearing “within a reasonable time” and uniform application of the law. This goes against the principles of legal certainty and right to fair trial, which will continue leading to systematic violation of Article 6 ECHR.
1.4. Suggested edition. The experts of RPR support the idea of creation of two simple 3-tier structures, general and administrative courts. This will not only solve the issue if inefficiency, but also will create a context for reappointment of judges (see section 4).
“Article 125. The judicial system of Ukraine comprises the general and the administrative courts.
The Supreme Court of Ukraine shall be the highest court in the system of general courts.
The Supreme Administrative Court of Ukraine shall be the highest court in the system of administrative courts.
Specialized courts may be established, according to law, within the system of general courts.
The network of general courts, the network of administrative courts, their territorial jurisdiction and the number of judges shall be established by law”.
2. Independence of the judges
2.1. According to Article 128 of the proposed amendments “Judges shall be appointed [to their offices[1]] by the President of Ukraine on submission of the High Council of Justice due to the procedure prescribed by law”.
2.2. The Venice Commission repeatedly (CDL-AD(2013)014, CDL-PI(2015)016-e) points out that the act of appointment by the President should be merely ceremonial.
In paragraph 27 of the preliminary opinion (CDL-PI(2015)016-e) “The Venice Commission welcomed “the ceremonial position” of the President and found that as “the appointment of judges by the head of state acting on a proposition of the HCJ [is] designed to limit political influence and partisan pressure on the judiciary (…) [it was to] be welcomed”. The Venice Commission cannot but reiterate its strong support for the proposal that judges be appointed by the President (a merely formal, ceremonial act) upon the (binding) submissions of the High Council of Justice”.
In paragraph 27 the Venice Commission elaborates: “after appointment, any link between the judge and the political organs should be severed; there should be no space for interventions by either the legislative or the executive, not even if they are merely symbolic”. It also notes that and all the decisional power in relation to the judges’ career will belong to the High Council of Justice (HCJ), which is a very positive and welcome feature to guarantee the independence of the judges.
In paragraph 27 the Venice Commission explicitly states “It should be made clear that the submission made by the HCJ on the appointment of a judge is binding on the President”.
2.3. Unfortunately, the role of the President in judicial career in the proposed amendments is not limited to “a merely formal, ceremonial act” of appointment. The submission of the High Council of Justice is not defined as binding, and there is no timeframe for a President to execute the act of appointment provided for by the proposed amendments. This may also result in a deadlock if the President fails to act, which happened numerous times under a very similar current edition of the Constitution.
It is also important to note that the stable case law of national courts of Ukraine recognize presidential competence to transfer judges as a discretional power of the President, noting that the submission of the High Qualification Commission of judges is “only recommendatory” and “President has full discretion to decide on the transfer of judges” (http://reyestr.court.gov.ua/Review/40066691, http://reyestr.court.gov.ua/Review/42310801).
The transfer of judges is also not listed among the competences of HCJ which will render unconstitutional any such provision in the ordinary legislation. Moreover, the proposed amendments alter the wording of the competence of the President from “appoints judge to his/her office” to “appoints judges to their offices” which looks unnecessary unless there is an intention to keep the transfer of judges among the competences of the President.
The procedure of taking of oath by judges and should also be enshrined in the Constitution. In paragraph 44 of the Opinion, regarding the independence of the Constitutional Court judges the Venice Commission states: “the oath is taken before the Plenary of the Court (and not before another institution of the State), thus avoiding the risk of deadlocks…”. The same should be applied to all the judges. There have been recent cases when judges were not able to take an oath for more than a year. There have been cases when specific judges were not summoned for taking an oath for more than 3 years. Taking an oath before the President not only grants him or her a veto right on judges’ appointment, but also contributes to judges’ psychological sense of dependence from the President.
Election of a president (chief judge) of the court is another provision that needs to be enshrined in the Constitution. Granted to judges of the courts by Law “On Restoration of Trust to the Judiciary” in April 2014, this has become one of the biggest democratic achievements of Ukraine in the judiciary. However, it has been criticized ever since, because at that time around 80% of the courts re-elected the same chief judges. If these provisions are not stipulated in the Constitution, there is a big chance of coming back to the old system of appointment of chief judges, which would be a very negative outcome.
2.4. The Constitution should clearly stipulate that not only the submission made by the HCJ on the appointment of a judge is binding on the President, but that The HCJ should be given the power to “decide on the dismissal from office of a judge” and to “decide on the transfer of a judge”.
“Article 127. The judge shall be appointed for unlimited term by the Decree of the President of Ukraine based on the decision of the High Council of Justice not later than in ten days after the receipt of the latter’s decision by the President of Ukraine.
The High Council of Justice shall appoint a judge to the position in a respective court by competition results.
The judge’s mandate shall commence since taking the oath at the High Council of Justice…
A chief judge and deputy chief judge shall be elected and dismissed by the meeting of judges of the respective court by secret ballot for the term and in compliance with the procedure established by law…
Article 131. The High Council of Justice shall operate in Ukraine, which shall:
1) take the decision on the appointment of a judge and submit it to the President of Ukraine;
2) appoint a judge to the position in the respective court;
3) transfer a judge from one court and another…”
3. The Composition of the High Council of Justice.
3.1. The proposed amendments carry a set of positive change as to the composition of the High Council of Justice (HCJ). However, the suggested edition still carries a risk of political dependence of the HCJ.
3.2. The Venice Commission gave generally positive feedback as to the proposed composition of the HCJ. However, in the paragraph 37 the Commission states: “Previous Presidents of Ukraine did interfere with the judiciary and therefore particular caution has to be exercised with respect to the role of the President. The President’s power to appoint members of the HCJ should therefore be counterbalanced by the participation of the Verkhovna Rada in the process of forming the HCJ. This would also add an element of accountability of the HCJ to the public. It is of the utmost importance, however, that giving such a role to the Verkhovna Rada does not re-open the door to political influence on judges, which the whole reform under consideration is striving to eliminate. For this reason, the members of the HCJ chosen by the parliament should be elected by qualified majority, which would favour candidates with crossparty support (or by other mechanisms enabling the opposition to participate in the choice). In any case, these members should be chosen among legal professionals and should not be “active” politicians. 18 This requirement of political neutrality should apply to the members appointed by the President too”.
3.3. The RPR experts agree with the necessity to fully eliminate political influence on the HCJ. Thus, the powers of the President should be limited and counterbalanced. However, the mechanism proposed by the Commission raises some issues.
It is to be agreed with that giving the Verkhovna Rada a role to participate in the appointment of the HCJ members does not re-open the door to political influence. However, the introduction of the qualifying majority voting of the Rada does not actually contribute to choosing a politically unbiased figure. Given the usual practice in the Ukrainian parliamentarism, this will very probably stimulate political bargaining and a voting will be packaged with voting for other offices and contribute to allocation of the political influence in various organs. For example, one member of the current High Council of Justice received support in parliament only because one of the political parties was promised the position of a Head of the Antimonopoly Committee.