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13 june 2014

Current requirements and recommendations on judicial reform and prosecutorial reform in Ukraine of the Council of Europe bodies

   

 

 

within the project
“The speedometer “Ukraine – EU”:
Constitutional and Judicial Reform”,
financed by European Union

Current requirements and recommendations

on judicial reform

and prosecutorial reform in Ukraine

of the Council of Europe bodies

(Parliamentary Assembly, Committee of Ministers,

European Court of Human Rights,

Venice Commission,

Consultative Council of European Judges

and the Consultative Council of European Prosecutor)

Recommendation

Source

   

Establish a body independent of the executive and legislature with an exclusive or lesser role in respect of appointments and (where relevant) promotions of judges.

p. 40-41 CCJE (2001) OP N1

Merge the High Council of Justice with the High Qualification Commission of Judges. However, if both the High Qualifications Commission and the HCJ were maintained, both have to be independent.

p. 40 CPL-AD (2013)014

Provide for a substantial part, if not the majority, of members of the HCJ to be judges.

p. 35 CPL-AD (2013)014

Eliminate the system that provides for involving political authorities such as the Parliament or the executive at any stage of the selection process (for the HCJ). All interference of the judicial hierarchies in the process should also be avoided.

p. 31 CCJE (2007) Op. N 10

Ensure that the non-judge members of the HCJ are selected among other outstanding jurists, university professors, with a certain length of professional service, or citizens of acknowledged status. Modern management of the judiciary might also require wider contributions from members experienced in areas outside the legal field (e.g. in management, finances, IT, social sciences).

p. 22 CCJE (2007) Op. N 10

Remove a member representing the Ministry of Justice from the High Qualification Commission of Judges.

p. 81 CDL-AD(2010)026

Provide that the HCJ should operate as a permanently functioning body.

p. 113 of judgement of the ECHR in an aplication № 21722/11

Guarantee the continuity of the HCJ’s activities. Its members should not all be replaced at the same time.

p. 35 CCJE (2007) Op. N 10

Ensure that judges of all levels carry equal weight in the election of the HCJ members. Judges of the highest courts should not have a stronger position in the election.

p. 37 CPL-AD (2013)014

Eliminate the need for specifying in the legislation how many disciplinary inspectors there should be.

p. 80 CDL-AD(2010)026

Ensure that the matters of judicial appointments, promotion, education, career, immunity, transfer, disciplinary responsibility, and removal of judges are under the purview of the HCJ.

p. 19 CPL-AD (2013)014
p. 14 CDL-AD(2010)004
p. 5 CDL-AD (2007)028
p. 70 CDL-AD(2010)026
p. 53 CDL-AD (2011)033

Entrust to the judiciary the responsibility for organising and supervising judicial training. The conception of training programmes and their implementation should be entrusted, under the authority of the judiciary or preferably the Council for the Judiciary, to a special autonomous body (e.g. a training academy) with its own budget and which should work in consultation with judges. A clear division of functions should be encouraged between the Council for the Judiciary and the training academy.

p. 65 CCJE (2007) Op. N 10

Ensure cooperation between the HCJ and training institutions in the creation and the development of the programme for initial training, through which candidates will develop and deepen not only their legal knowledge of the national and international substantive and procedural law and practice, but also develop complementary skills, e.g. knowledge of foreign languages, ethics, alternative dispute resolution, so that society may be served by judges capable of applying the law correctly, and of critical and independent thinking, social sensitivity and open-mindedness.

p. 68 CCJE (2007) Op. N 10

Provide the HCJ with consultative function, requiring the Council’s opinion on all draft texts relating to the status of judges, the administration of justice, procedural law and more generally, all draft legislation likely to have an impact on the judiciary, e.g. the independence of the judiciary, or which might diminish citizens' guarantee of access to justice, before deliberation by Parliament.

p. 87 CCJE (2007) Op. N 10

Reduce the number of level of judicial self-governance bodies.

p. 93 CDL-AD(2010)026

Avoid situations where different bodies of judicial self-governance exercise the same powers.

p. 93 CDL-AD(2010)026

Provide for a more proportionate representation of judges in electing the delegates to the Congress of Judges of Ukraine. Replace the principle of “equal representation of each judicial jurisdiction” with a more proportionate manner of election.

p. 129 (22) CDL-AD(2010)026

Provide for a more proportionate representation on the Council of Judges. Replace the principle of “equal representation” from each jurisdiction with a different one, in order to bring the composition of the Council in conformity with the principle of equality.

p. 129 (23) CDL-AD(2010)026

Restrict the right of a number of people not belonging to the judiciary (President, Chair of the Verkhovna Rada, Ombudsman, members of the HCJ, members of the High Qualification Commission of Judges, Minister of Justice) to attend the Congress of Judges of Ukraine.

p. 96 CDL-AD(2010)026

The Minister of Justice and the Minister of Finance should not be invited, in a mandatory manner, to attend meetings of the Council of Judges of Ukraine.

p. 97 CDL-AD(2010)026

Establish within the judiciary one or more bodies or persons having a consultative and advisory role and available to judges whenever they have some uncertainty as to whether a given activity in the private sphere is compatible with their status of judge. The presence of such bodies or persons could encourage discussion within the judiciary on the content and significance of ethical rules. Such bodies or persons could be established under the aegis of the Supreme Court or judges’ associations. They should in any event be separate from and pursue different objectives to existing bodies responsible for imposing disciplinary sanctions.

p. 29 CCJE (2002) Op. N 3

Ensure adequate remuneration of the members of the Council for the Judiciary, commensurate to their position and the workload within the Council.

p. 36 CCJE (2007) Op. N 10

Ensure that the President’s role in appointing judges and dismissing them from their position is a ceremonial one.

p. 12, 29 CPL-AD (2013)014

Raise the minimum age and length of legal experience required for newly appointed judges.

p. 26-27 CPL-AD (2013)014

Establish a procedure to regulate the collection and receipt of information from judicial candidates; a candidate should be made aware of such information and be given the right to contest it.

p. 29 (12) CDL-AD(2010)026

Remove the Verkhovna Rada from the process of appointing judges.

p. 16-18 CPL-AD (2013)014

Provide objective criteria for promotion of judges as part of undisputed law.

p. 70 CDL-AD(2010)026

Definte, by law, conditions for removal of judges from administrative positions.

p. 25 CDL-AD (2011)033

Eliminate involvement of the Verkhovna Rada in the transfer of judges.

p. 53 CDL-AD (2011)033

Provide that the member of the HCJ who submitted the proposal to remove from office the relevant judge should not be allowed to take part in the decision concerning that relevant judge

p. 42 CDL-AD(2010)029

Provide for a scale of disciplinary sanctions against judges, proportionate to the gravity of a disciplinary offense.

p. 57 CDL-AD (2011)033

The grounds for removal of a judge from office due to his inappropriate conduct should be set out in a more precise and narrow way. In particular, provide for a more clear legislative definition of removal on the grounds of violation of the oath. A violation of the oath can lead to removal only if the violation is of such a nature that it prevents a person from further occupying the position of a professional judge.

p. 63 CDL-AD (2011)033
p. 86 CDL-AD(2010)026

Provide judges of highest courts with equal opportunities to challenge decisions on disciplinary proceedings, as for judges of local and regional courts.

p. 24 CDL-AD(2010)029

Establish the regime for bringing judges to disciplinary responsibility only in a single legal text.

p. 44 CDL-AD(2010)029

Establish, by law, the right of the judge to call witnesses in his support and to examine witnesses during the hearing of a disciplinary case against that judge.

p. 73 CDL-AD(2010)026

The specific rights of defence granted to the judge should be detailed. The reporting member of the High Qualifications Commission, whose position is similar to that of a prosecutor, should be excluded from the deliberations and the vote.

p. 74 CDL-AD(2010)026

Judges should enjoy functional immunity (immunity from prosecution for acts performed in the exercise of their functions).

p. 61 CDL-AD(2010)004

Transfer functions over the lifting of judicial immunity from the Verkhovna Rada to the HCJ.

p. 19 CPL-AD (2013)014

Eliminate additional monthly payments to judges for work involving access to state secrets.

p. 72 CDL-AD (2011)033

Eliminate the legislative provision that allows judges to be rewarded with any sorts of awards, decorations or letters of commendation.

p. 40 CDL-AD(2010)026

Include the principle of automated allocation of cases to the listing of key principles of court proceedings.

p. 31-32 CPL-AD (2013)014

Enshrine the principle of irremovability of judges at the highest legislative level. Judges should have guaranteed tenure until a mandatory retirement age, where such exists. In the event that the probation period is retained, judges in their probation period should not preside over politically sensitive or complex cases.

p. 60 CCJE (2001) OP N°1
p. 6.3 of PACE Resolution № 1862   (2012)

п. 49 CM/Rec(2010)12

Take appropriate measures including the allocation of grants, aimed at teaching judges foreign languages as part of their basic or specialised training.

p. 22 CCJE (2006) OP N 9

Provide that decisions of the Council for the Judiciary in relation to the management and administration of the justice system, as well as the decisions in relation to the appointment, mobility, promotion, discipline and dismissal of judges should contain an explanation of their grounds and be subject to the possibility of a judicial review. The independence of the Council for the Judiciary does not mean that it is outside the law and exempt from judicial supervision.

p. 39 CCJE (2007) Op. N 10

Take into account judges' participation in training programmes when considering their promotion.

p. 70 CCJE (2007) Op. N 10

Ensure judges’ involvement in decisions relating to the administration of the courts and as to the determination of their means, and their allocation at a national and local level. Provide for consulting with them over plans to modify their status, and over the determination of the terms of their remuneration and of their social welfare.

p. 1.8 DAJ/DOC (98) 23

Provide that, in those states where the recruitment procedure provides for a trial period after nomination to the position of judge but before confirmation on a permanent basis, or where recruitment is made for a limited period capable of renewal, the decision not to make a permanent appointment or not to renew, may only be taken by the independent authority or on its proposal, recommendation or with its agreement or following its opinion.

p. 3.3 DAJ/DOC (98) 23

The network of courts and general jurisdiction is to be determined by law, and the courts are to be established, reorganised and abolished through the law.

p. 15 CPL-AD (2013)014

It is desirable that the State Judicial Administration is unmistakably declared a body of selfadministration

of the judiciary (see Article 145 of the Law).

p. 129(25) CDL-AD(2010)026

Eliminate the 4-tier court system.

p. 15 CDL-AD(2010)026

Provide the Supreme Court with the competence to resolve conflicts related not to issues of substantive law only, but also in relation to issues of procedural law

p. 29-34 CDL-AD(2010)026

The Supreme Court should be allowed to decide itself on the admissibility of cases concerning the conflicts in the application of the law.

p. 29-34 CDL-AD(2010)026

The Supreme Court should be allowed to decide the conflicts between the three specialized jurisdictions (civil and criminal, commercial, and administrative).

p. 29-34 CDL-AD(2010)026
 

Provide parties a direct access to the Supreme Court in cases involving a violation of international law by Ukraine.

p. 29-34 CDL-AD(2010)026

Determine, by law, expedited or compensatory remedies for excessive length of judicial and execution proceedings. In particular, adopt a specific law on length of proceedings. Introduce pecuniary compensation for unjustifiably long court proceedings, in an amount compatible with the case law of the European Court. The criteria for awarding moral damage and the general criteria for calculating material damage should be set out clearly and in detail, preferably in the law itself. In respect of countries which face systemic problems of length of proceedings, these criteria should be previously assessed by the Committee of Ministers, with the participation of the European Court.




p. 245, 247 CDL-AD(2006)036rev
 

Provide for regular publication of reports on the effectiveness of enforcement, including data on delays and their causes, as well as on different enforcement methods. Publication of such reports should be entrusted to the Council for the Judiciary or another independent authority of the judiciary. A special section should deal with the enforcement of judicial decisions against public entities.

p. 23 CCJE (2010) Op. N 13

Establish courts’ spokespersons or press and communication services under the responsibility of the courts or under councils for the judiciary or other independent authorities.

p. 19, 46 CM/Rec(2010)12

Ensure that judges are involved in all decisions concerning the setting up and development of IT in the judicial system

p. F (V) CCJE(2011)2

Ensure that concurring or dissenting opinions of judges are published with the majority’s opinion. This can contribute to improve the content of the decision and can assist both in understanding the decision and the evolution of the law.

p. 51 CCJE(2008)5

Joint training for judges and lawyers on the themes of common interest should be conducted.

sectionVII (Rec) CCJE(2013)4

Provide training of courtstaff on technical (non-legal) issues.

p. 75 (D)(rec) CCJE(2008)5

The ethical codes of judges and lawyers should include provisions concerningthe relations between the two professions.

p. 20 CCJE(2013)4

Establish adequate procedural frameworks for civil, criminal and administrative cases. The drafting process for theseprovisions should involve the consultation of judges and lawyers.

p.11 CCJE(2013)4
 

School and university education programmes should include a description of the judicial system, visits to courts, and active teaching of judicial procedures.

p. 12 CCJE (2005) OP No. 7

Introduce a full constitutional complaint to the Constitutional Court of Ukraine against all cases of violation of human rights through individual acts by bodies, whose decisions are subject to review by the Constitutional Court.

p. 11CDL-AD(2013)034

Recognize the jurisdiction of the International Criminal Court on the constitutional level.

p. 23 CDL-AD(2013)034

   

Eliminate the prosecutorial function of exercising general oversight of legality.

p. 75-76 CPL-AD (2010)040
p. 17 CPL-AD (2013)025

Eliminate the function of prosecution service to provide general protection of human rights, instead strengthening the ombudsman’s role in this regard.

p. 82 CPL-AD (2013)025

p. 51 CDL-AD(2015)015

Review the role of the prosecution service in representing the individuals in court, notwithstanding the wishes of such individuals. Should this function be retained, the role of the prosecutor should be only subsidiary, and the individual should be able to refuse this representation.

p. 81 CPL-AD (2010)040

p. 96-97 CDL-AD (2012)019

Provide for the possibility of judicial control over all measures taken by prosecutors which cause an interference in the fundamental rights and freedoms of a person, including all functions carried out outside the sphere of criminal prosecution.

p. 20 CPL-AD (2013)025

Eliminate the authority of prosecutors to make an appeal or cassation appeal and to file a petition for review of court judgments in civil, administrative and commercial cases, in the instances where a prosecutor has not been involved in any proceedings leading to those judgments

p. 29 CPL-AD (2013)025

Provide that a prosecutor can represent the interests of an individual or of other state bodies only after having presented justification for his intervention and after the acceptance of these grounds by the court (assuming the representation function of the prosecution service is retained).

p. 85, 87 CPL-AD (2013)025

The obligation of prosecutors to reason their actions and to make these reasons open for persons or institutions involved or interested in the case should be prescribed by law.

p. 34 (h) CCPE(2008)3

Ensure participation of the prosecution service in the elaboration of its budget. Theprocedure for adopting the budget of the prosecution service in the parliament should provide for taking into consideration the opinion of the prosecution service itself.

p. 14 CCPE(2012)3

Ensure both internal and external control and auditing of the use of prosecutorial budgets. The external control and auditing should be in line with those applied to the courts.

p. VI (rec) CCPE(2012)3

Establish non-discriminatory criteria for the appointment of a Prosecutor General and a procedure for the technical vetting of candidates for suitability.

p. 34 CDL-AD (2012)019

Define professional, non-political expertise as part of the selection process for Prosecutor General. Consideration might be given to the creation of a commission of appointment comprised of persons who would be respected by the public and trusted by the Government.

p. 34-36 CPL-AD (2010)040

A Prosecutor General should be appointed permanently or for a relatively long period without the possibility of renewal at the end of that period. The period of office should not coincide with Parliament’s term in office.

p. 37 CPL-AD (2010)040

Prescribe by law the clear criteria and grounds for disciplinary responsibility and dismissal of the Prosecutor General. The Prosecutor General should have the right to a fair hearing in dismissal proceedings, including before Parliament.

p. 39-40 CPL-AD (2010)040

Provide for a preliminary procedure before the qualification and disciplinary commission of prosecutors on possible violations of professional responsibilities of the Prosecutor General. Such preliminary review should be nonbinding for the President and the Verkhovna Rada.

p. 199 CDL-AD(2013)025

Eliminate the Constitutional norm that permits Parliament to express a no confidence vote in the Prosecutor General, resulting in his dismissal.

p. 14 CDL-AD (2012)019

Ensure expert input in the appointment process for prosecutors.

p. 48 CPL-AD (2010)040

Change the selection procedure for candidates for prosecutorial positions. This procedure should be defined by law.

p. 74-81 CDL-AD (2012)019

Ensure that opportunities for training are available for prosecutors throughout their career. For reasons of cost and efficiency, synergies could be found in common training for prosecutors and judges.

p. 70 CPL-AD (2010)040

Ensure that the career of prosecutors is governed by objective criteria, such as competence and experience.

p. 30 CPL-AD (2013)025

Guarantee by law a fair and objective procedure for disciplinary action against prosecutors. Provide for independent and impartial review of disciplinary action against a prosecutor.

p. 5(e) Rec(2000)19

p. 30 CPL-AD (2013)025

Provide that, in disciplinary cases, including of course the removal of prosecutors, the prosecutor concerned should have a right to be heard in adversarial proceedings.

p.52 CPL-AD (2010)040

In systems where a Prosecutorial Council exists, this council should have the ability to handle disciplinary cases against prosecutors.

p. 52 CPL-AD (2010)040

Make available an opportunity for a prosecutor to appeal to a court against disciplinary sanctions against him.

p. 52 CPL-AD (2010)040

Provide for objective criteria for disciplinary action against prosecutors.

p. 30 CPL-AD (2013)025

Amend the legislation to explicitly rule out that an acquittal of a person accused by a prosecutor can result in disciplinary proceedings against the prosecutor unless the charges were brought due to gross negligence or maliciously.

p. 128 CPL-AD (2013)025

Ensure by law the ability of an inferior prosecutor to demand being given all instructions in writing. In case of an allegation that an instruction is illegal, a court or a specialized body like a prosecutorial council should decide on the legality of the instruction.

p. 64 CPL-AD (2013)025

Specify by law that all general instructions and policy guidelines issued to public prosecutors must be published.

p. 65 CPL-AD (2013)025

Includle Guidelines on prosecutor’s relations with the media in the ethical codes of prosecutors.

p. IV (i) CCPE(2013)4

Settle by law the conditions related to prosecutors’ remuneration, tenure and pension, as well as an appropriate age of retirement.

p. 5(d) Rec(2000)19

Repeal the article of the law that specifies the official uniform for prosecutors.

p. 194 CDL-AD(2013)025

Develop and issue circulars or guidelines on the activities of prosecutors outside the criminal field, summarising good practices and recommendations.

p. 37 (rec) CCPE(2008)3

   

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