Tuesday, 19 October 2010
Venice Commission Reacts To Ukraine's Judicial Changes
Issues and standards at stake
Among other issues, the opinions assess two main points:
the strongly reduced role of the Supreme Court as compared to the high specialised courts, including the new High Specialised Court in Civil and Criminal matters and
additional powers for the High Council of Justice, which exceed those provided for in the Constitution.
The composition of the High Council of Justice, as provided for in the Constitution, had been criticized in the past by the Commission (CDL-AD(2010)003).
The Commission had already sent preliminary comments on the draft Law on the Judicial System and the Status of Judges before its adoption; this Law was adopted on 7 July 2010 by the Verkhovna Rada and signed by President Yanukovych on 27 July 2010.
On 1 October 2010, the Constitutional Court of Ukraine has declared that the amendments to the Constitution introduced in 2004 are unconstitutional and therefore the Constitution as it was adopted in 1996 stands. This change in the constitutional situation does not directly affect the content of this joint opinion, as the chapter devoted to the Judiciary in the Constitution of 1996 was not changed in 2004.
1. Judiciary and Status of Judges
While there have been a number of improvements in the draft compared with the previous draft Law on the Judiciary and the Status of Judges, in particular the strengthening of judicial independence in a number of areas, some of the main criticisms made in the earlier opinion remain valid for the new text. In particular, there are still fundamental problems in the system envisaged for the appointment and removal of judges, notwithstanding that some improvements have been made. In particular the role of the Verkhovna Rada remains problematical. The system of judicial self-government is too complicated. The situation concerning the Supreme Court, which loses most of its competences and will probably unable to provide a coherent interpretation of the law, is also problematic.
Full text of the opinion
2. The Law on the prevention of the abuse of the right to appeal
This law has introduced important modifications with specific impact on the competences and activities of the High Council of Justice. Indeed, the Council’s role in the dismissal of judges has been reinforced, as it acts as both an appellate court for the disciplinary proceedings introduced against judges of lower levels and as a disciplinary body against judges of the Supreme Court and the High Specialised Courts. The HCJ has also the possibility to assume further powers which are not strictly defined in the Law and which were not provided for in the Constitution.
The changes adopted in the Codes of Administrative Adjudication and Administrative Infringement, as well as on the Law on the High Council of Justice, strengthen the role and position of the Council, reinforcing its jurisdiction and conferring additional competences.
This seems a regrettable step, taking into account the composition of the HCJ as established in the Constitution, which is not in conformity with European standards. The risk of politicization of appointment and disciplinary procedures is high and even the appearance of such a danger can have a chilling effect on judges, thus weakening their independence. The disciplinary powers of the High Judicial Council should be re-examined in order to establish with sufficient detail the criteria to consider a judge liable for his or her behaviour.
Full text of opinion