Constitutional amendments: How to avert the threat to judicial independence

  However “non-democratic” it may sound, neither parliaments, nor people should participate in forming the judiciary. The president may only formally appoint a judge based on the results of the competitive selection and he may not have any influence on the judge’s carreer.

Lately, further reforms of the judicial system have been associated with the necessity to amend the Constitution. In the opinion the President Yanukovich,judicial reform in 2010 has achieved positive results. In his recent address to the Parliament, the President stated: “However, certain requirements of the Council of Europeto introduce new democratic standards of judicial proceedings in Ukraine, can not be implemented without amendments to the Constitution”.

The Council of Europe and the European Union have for long insisted on amendments to the Constitution. Moreover, the European Court of Human Rights by its judgment in “Oleksandr Volkov v. Ukraine” case of 9 of January 2013 has obliged Ukraine to clean up the mess in the system of judicial liability, in particular within the Council of Justice. On the 27 of May, the judgment became final, thus Ukraine is obliged to observe it.

What threats do the initiatives to amend the Constitution contain? What sort of amendments Ukraine needs to implement in order to bring its judicial system in line with the European standards? Are the amendments to the Constitution sufficient to secure the right to a fair trial? Let us find answers to these questions together.

The initiatives

The Law of Ukraine “On the amendments to the Constitution on strengthening guarantees of independence of judges” has been drafted by the Administration of the President. It was passed on for analysis and submission of proposals to the Constitutional Assembly,which serves as an advisory body under the President of Ukraine.

The Commission on Justiceof the Constitutional Assembly has prepared its own draft of the Law of Ukraine “On the amendments to the Constitution of Ukraine on the improvements of the judiciary and principles of justice administration in Ukraine”. Having drafted the law, the Commission on Justicestarted drafting proposals for the Section of the Concept of amendments to the Constitution on judiciary. Thus, discussions of the Concept, which was supposed to predetermine the contents of the law, started after the actual draft law was finalized.

The Coordination office of the Constitutional Assemblyadvised the Head of the Assembly,Leonid Kravchuk, to send the draft law to the Venice Commission. However, Kravchuk, clearly under the influence of the Administration of the President,submitted the draft that was written by the Administration instead, enumerating in his letter the suggestions of the Assembly.

In its conclusion from the 15 of June, the Venice Commission expressed concerns about insufficient involvement of the Constitutional Assembly in the process of developing amendments to the Constitution. These concerns could have been avoided, if the Assembly had worked on drafts that were prepared by its own working groups (para. 6).

On the 21 of June, the Constitutional Assembly received a draft of the Concept of Amendments to the Constitution,which did not incorporate the recommendations of the Venice Commission.

Therefore, there is a competition between the Administration of the President and the Assembly that demonstrated a secondary role of the latter. This can also be explained by the fact that the Assembly was primarily created to imitate involvement of experts in discussion on the public issues and giving them a fake sense of involvement in important changes. Drafting the Law “On judiciary and status of judges” in 2010 took place in the same way, because the draft law was born in the Administration of the President, but it was attributed to the Working Group on Judicial Reform.

The draft by the President's Administration contains three key changes.

Firstly, the draft provides that judges would be appointed by the President, granting them an indefinite tenure, removing the the approval of the Parliament. Currently, according to the Constitution of Ukraine, a judge is appointed by the President, but after 5 years he is required to be reappointed by the Parliament (Verkhovna Rada). Additionally, according to this draft, the President would decide on transfers of judges and their dismissal. The President would exercise these powers only based on a motion of the High Council of Justice or the Qualification Commission of Judges(regarding transfers).

At the same time, the draft proposes some changes in the requirements for candidates to become judges. In order to become a judge one must have at least 5 years of legal experience (instead of 3 years) and be at least 30 years old (now is 25 years). Also, the age for retirement has been moved from 65 to 70 years.

The second change is related to the election of members of the High Council of Justice. According to the Constitution, only 4 out of 20 members of the High Council of Justice represent judiciary (the President of the Supreme Court and 3 other members elected by the Congress of Judges).Although, since 2010, the format of the High Council of Justicehas been charged with the obligation to appoint a certain number of judges in order for them to form a majority, we can not deem such members as elected by judges.

According to the draft Concept, the Congress of Judges will appoint 12 members only out of judges to the High Council of Justice, ensuring the representation of various levels of courts and specialisations. The Congress of Bar of Ukraine and the Congress of representatives of law schools and academic institutes will each appoint 2 members of the High Council of Justice. Also, presidents of Constitutional Court, Supreme Courtand theCongress of Judges and the GeneralProsecutor will also become members of the High Council of Justice ex officio.

The High Council of Justice will take over the current Verkhovna Rada’s powers to approve detention or an arrest of judges. It is also suggested that the power of the High Council of Justiceto appoint and dismiss judges and their deputies should be “legalized” as this power is only defined in the “Law on the Judicial System and Status of Judges”, but not mentioned in the Constitution.

The third key change suggested in the draft concerns the introduction of a mechanism for establishment and dismissal of courts by the decision of the Parliament, and not by the President's decree, as it is the case today. The Parliament will exercise these powers inaccordance with the propositions of the President.However, for some reason these changes are proposed with regards to the Article 85 of the Constitution on the powers of the Parliament (Verkhovna Rada) and not to Article 92, that defines what can be regulate only by law. This allows for Verkhovna Rada to establish and dismiss courts with resolutions instead of laws, whose procedure is more complicated that the one for a resolution.

The Commission on Justice of the Constitutional Assembly offers similar ideas in its draft of the amendments, but with some differences.

Firstly, it recommends to abolish the Qualification Commission of Judges and to transfer its powers, such as the selection of judges and disciplinary actions, to the jurisdiction of the High Council of Justice.In that case members of the High Council of Justicecannot hold combine their office in the High Council of Justice with other positions. The selection of judges, including those of the courts of higher levels should be carried out on a competitive basis.

Secondly, the number of members of the High Council of Justice will be reduced to 15, 9 of which will be selected from judges (including retired judges) by the Congress of Judgesof Ukraine. Also, the National Law Academy of Ukrainewill appoint 4 members, and finally 2 members will be appointed by the Congress of Bar out of lawyers.Instead, the Constitutional Assembly recommended in its draft that the National Academy of Legal Scienceappoints 2 instead of 4 members, while the other 2 should be appointed by the Congress of Representatives of Law Schools and Academic Institutes (these proposals were analyzedby the Venice Commission).

Thirdly, in comparison to the proposal by the President's Administration, this draft suggests some limits to the powers of the President. The President's decree on the appointments and dismissal of judges has to be co-signed by the chairman of the High Council of Justice. In the draft law on the establishment, reorganisation and dissolution of courts, as well as on the establishment and changes of the network of courts, such decisions will be proposed by the President of Ukraine upon the approval of the prime minister of Ukraine, based on the motion of the High Council of Justice.

The forth difference concerts the right of the Supreme Court for legislative initiative.

Finally, in the Concept of Amendments to the Constitution proposed by the Constitutional Assembly does not mention introduction of magistrates that would be elected by the local communities.

The composition of the High Council of Justice

The High Council of Justice is a key body whose powers concern formingthe judiciary. At the moment, the High Council of Justice decides on the appointments and dismissals of judges. Also it deals with certain disciplinary actions.

In accordance with the European standards, a body that is responsible for selection of judges and that deals with the issues of their liability, has to be “independent from the executive and legislative power and at least half of its members should be judges elected by their colleagues in order to ensure a wide representation of the justice establishment“ (articles 1.3, 5.1, 7.2 of the European Charter on the Statute for Judges, 1998). In recent years, this standard has become even more rigid; as it is required that this body is composed either exclusively from judges or it has a significant majority of judges as members elected by other judges (para. 13 of the Magna Charta of judges (fundamental principles), adopted by the Consultative Council of the European Judges in 2010).

In 2010 the legislator made a step further towards the European standards. The law on “On the Judicial System and Status of Judges”defined that the Parliament, the President, prosecutors, bar, law schools and academic institutesshould elect a certain number of members of the High Council of Justice from a selection of judges. In this way, 11 out of 20 members of the High Court of Justice should be judges. However, the Venice Commission as well as the European Court of Human Rights in the case of Oleksandr Volkov v. Ukraine concluded that such changes are inadequate as long as “the appointments are made by these institutions, not by the judicial establishment”.

The drafts of amendments to the Constitution offer a certain solution to this problem, since judges make 12 out of 20 (as in the suggestion of the Administration of the President) or 9 judges and ex-judges out of 15 members of the High Council of Justice (as suggested by the Constitutional Assembly). Those members would be elected by the Congress of Judges. According to the first draft, the presidents of the Constitutional Court, Supreme Court and the Congress of Judges, a body that is elected by judges belonging to a particular authority, will join those 12 judges as members of the High Council of Justice.

However, even if the changes are made in apparent accordance with the European standards, if the Congress of Judges is dependent on the political power, so will be the judges it elects. In fact, establishing control over professional self-government associationsis an instrument that political power uses for influence over judges and more recently – over the bar.

To this end, in 2010, the law "On the Judicial System and Status of Judges" reformed bodies of judicial self-government. Earlier, these bodies were under the control of the presidents of courts, who in their turn were dependent on the management of the Supreme Court and partially on the management of the high specialised court. After the reform, two thirds of the key bodies ofjudicial self-government – the Congress of Judges and the Council of Judges of Ukraine, were composed out of representatives of judges of specialized courts and only one third was filled by judges of general courts. Even though the number of judges of general courts is three times larger then those from specialised court, they form a minority within the bodies of judicial self-government. While the presidents of higher specialised courts demonstrated loyalty to the political power, the president of the Supreme Court, having lost his influence, was criticizing the changes in the judiciary.

In addition, the authors of the law “On Judicial System and Status of Judges” were concerned about the “correct” selection of delegates to the first Congress of Judges based on the new law. Those delegates were elected by three appropriate conferences: judges of general courts, judges of commercial courts and judges of administrative courts. However, these conferences proved to be appointed, not elected (!): "the organizational bureau"has independently elected 2 representatives of the general courts from every district (out of large number of candidates that were suggested by the assembly of judges of various courts), “based on their experience and authority”. The selection of the conferences of judges of commercial and administrative courts took place in the same way.

  Also, it is impossible to bypass the issue of the reduction of the number of members in organisations of the judicial self-government. For example, according to the new law on the work of the Congress, that is suppose to represent over 8 thousand judges, no more that 96 judges are participating in its activities (in 2010 more then several hundred delegates were attending the congress). The Council of Judges of Ukraine now has only 11 members (previously there were more than 70 members, even thought the majority were the presidents of courts). In the current Council of Judges the majority of members are judges of high specialised courts, while there is only one representative of the local and appeal courts.

The two Congress of Judges that were carried out based on the new law had a very precise scenarios, as their decisions were predictable and approved almost unanimously. The 11 Congress of Judges concluded that there is “… strengthening of the guarantees of the independence of judges…” while not forgetting to express “…its support to the work of the President of Ukraine…”.

Its is perfectly clear that the decisions on the composition of the bodies of the judicial self-government are made outside the judicial system. For example, the High Qualification Commission, dominated by judges elected by the congress of judges, does not prove to be an independent authority in spite of its apparent correspondence with the European standards. Venice Commission has warned about “the large risk of turning the High Qualification Commission into the instrument of party politics, although it is assigned a different role” (CDL-AD(2010)026). The activities of the Commission, in particular, with regards to the transfer of judges, resulted in majority of vacancies being formed in the Donbass region, from which a large number of judges was transferred to the capital and to other regions (According to the High Qualification Commission, based on the location of vacancies, out of 359 places, more then one third was in the Donetsk and Lugansk regions, as well as more than half of places in the administrative and economic courts). Many of those judges were appointed by the High Council of Justice to the positions of presidents or vice-presidents of those courts immediately after their transfer. As such, the High Qualification Commission, as well as the High Council of Justice is just one of the instruments that political power uses to influence the judiciary branch of government.

The appointment of members of the High Council of Justice by the Congress of the Bar also contains some risks. Firstly, the bodies of bar self-government have also proved to be under the influence of political power. Secondly, lawyers as well as other members of the High Council of Justice do not stop with their other professional activities. This creates a possibility of conflict of interest, between having a case in court and exercising disciplinary measures against a judge.

The President's Administration in its draft preserves the membership of the Prosecutor General in the High Council of Justice. As it was stated in the annual address of the President to the Parliament: “a preservation of the membership of the Prosecutor General within the High Court of Justice, is needed due to his decision-making powers concerning violations of the requirements of the incompatibility of prosecutors, as well as complaints against decisions of bringing prosecutors to disciplinary responsibility". However, this decision disregards the opinion of the European Court of Human Rights in the case of “Oleksandr Volkov v. Ukraine”, that points out problems resulting from the membership of an Prosecutor General in the High Council of Justice, since this can have a restraining effect on the judges and as such is perceived as a potential threat. The membership of an Prosecutor General, in a body associated with the appointments, dismissals and punishments of judges, contains a risk of having judges that will not be we impartial in those cases or that the Attorney General will not be impartial with respect to the judges with whom he disagrees.

The Venice Commission has suggested that the participation of the Prosecutor General in the work of the High Council of Justice should be limited to only those questions that concern the prosecutors (para. 39 CDL-AD(2013)014). In its draft, the Constitutional Assembly does not mention the membership of the Prosecutor General in the Council.

In our view, participation of representatives of prosecutorsin such a body is only possible under special conditions, namely that judges and prosecutors form the same magistrate profession, they have the same status and the same guarantees of independence. The members of the High Council of Justice may not combine their office with other positions of a judge or a prosecutor, and its powers will concern both judges and prosecutors. The introduction of such model, which can be found in many Western European Countries, can become the focus of the constitutional changes in Ukraine referring to structural reforms of the prosecution by introducing magistrate self-governance. By the way, the Venice Commission has suggested that the High Council of Justice should be composed out of two parts: one for judges and other for prosecutors.

Certain threats lie in the power of Congress of Law Schools and Research Institutions to appoint members of High Council of Justice.  At the moment, the right to convene and facilitatethis Congress is monopolized by a public organization "Council of Representatives of Law Schools and Academic Institutions"(until recently this was a private institution with a similar name), that is headed by one of the members of the High Council of Justice, together with a chairmen of Parliament's committee on the issues of rule of law and judiciary and the president of National University “Odessa's Law Academy”. There is also going to be a problem with the National Law Academy of Ukraine, funded from the state budget.

For all the reasons mentioned, we suggest that the amendments to the Constitution concerning membership of the High Council of Justice, be adopted only after the developing of a legislative framework for the real functioning of the judicial self-government. Its necessary to ensure participation in the Congress of Judges based on the proportional representation of judges, as well as the election of those judges from below, and not by appointments from above. In addition, there is a need for more transparency in the appointment of members of the High Council of Justice by other institutions, such as human rights organizations, law schools and research institutions, bar, the Parliamentary Commissioner for Human Rights (Ombudsman).In order to prevent conflict of interest, members of High Council of Justice, except for those who are members ex officio, can not hold other positions or conduct other activities even if those activities are unrelated to their powers as members.

The powers of the High Council of Justice

At the moment, the High Council of Justice, in accordance with the Article 131 of the Constitution has only 3 functions:

1) proposing candidates for appointments and dismissals from the judge's position

2) passes decisions on the case of violation of the principles for holding their office by a judge or a prosecutor

3) implements disciplinary decisions against judges of Supreme Court and judges of high specialised courts and decides on the appeals to the decision regarding the accountability of judges of appeal and local courts, as well as prosecutors.

In 2010, due to questionable changes of the Law "On High Council of Justice", its powers were expanded and it was added that this body has the authority to appoint and dismiss presidents and vice presidents of courts based on the proposal of one of the three councils of judges – the general, commercial and administrative courts respectively.

The draft of the President's Administration presupposes legalisation of such powers on the Constitutional level, while also suggesting further extensions of powers of the High Council of Justice through adoptions of laws. Furthermore, it is suggested that instead of the Parliament, the High Council of Justice should be in charge of decisions regarding detention and arrest of judges, where appropriate, until the decision on the verdict.

The draft on the amendments to the Constitution by the Commission of the Constitutional Assembly on the issues of judiciary, plans to eliminate the High Qualification Commission of Judges, and recommends that its powers should be transferred to the High Council of Justice, while at the same time depriving the latter of powers concerning prosecutors.

The draft predicts the following powers of the High Council of Justice:

1) selection of candidates for judge's position

2) recommendations for the appointments and dismissal of judges

3) decision on the transfer of judges

4) implementation of disciplinary proceedings

5) decision to suspend the powers of the judge

6) decides on ceases of violation of the principles for holding their office by judges

7) decision to terminate the powers of a judge

8) appointments and dismissals of judges to administrative duties in courts based on the proposal of the judges of the court in question

9) exercising other powers defined in the Constitution of Ukraine/

The Venice Commission emphasised that it does not see the need for two separate bodies, however it warns that if the High Qualification Commission and the High Council of Justice remain, they have to be independent (para. 40 CDL-AD(2013)014).

In the draft of the President's Administration, it is suggested that the three-level system of appointing judges should not be changed: the Qualification Commission recommends candidates, the High Council of Justice decides on the list of candidates for appointments and finally President appoints those candidates to the position of a judge. In our opinion, with regards to the three-level system, remarks expressed by the Venice Commission continue to be relevant:  “the role of theHigh Council of Justice with regards to the considerationof the recommendations of the High Qualification Council is incomprehensible”. It is difficult to understand why the HCJ and the President have to confirm the recommendations of candidates. In addition, there are no criteria on which the president and the HCJ could base their decisions on the candidates recommended by the HQC, ….this just leaves place for arbitrary decisions” (para. 50 CDL-AD(2010)026).

In our opinion, the best solution would be if the HCJ stops with its role of a mail service between the HQC and the President and instead assumes powers of appointing, transferring and dismissing judges based on the recommendation of the HQC. In that case the President of Ukraine could assume the role of the president of the HCJ, as is the case in many other countries oriented to the French judicial system. Then there will be no questioning of the extra chain in the system of appointment, transfer and dismissal of judges and the overall process will be faster.

If the three level system remains (HQC, HCJ and the President) it is necessary to reduce the role of the President to formal confirmation of selected judges without any further involvement in their career. With the merging of the High Qualification Commission with the HCJ, it would be advisable to create disciplinary commissions that would fulfil the role of a “professional filter” for the large number of complaints on the work of judges. The commission would be looking into the alleged disciplinary misconducts, and would decide on opening disciplinary cases and passing them on to the High Council of Justice.

As to appointments of presidents and vice presidents of courts, it is necessary to change the mechanism that shapes hierarchy within the respective courts through the appointed judges. Despite the legal restriction to powers introduced in 2010, their role has remained unchanged. For example, when deciding on a promotion of a judge, the High Qualification Commission, contrary to the law, takes into account the characteristics of presidents of courts, their approval of candidates, etc.After replacing the presidents of courts with ones that are loyal to the government, the authors of the legal reform wanted to restore their influence on the respective court. Members of the Parliament, S. Kivalov and D. Shpenov, who were actively participating in drafting the law on judiciary and status of judges, submitted a draft of the law on the improvement of certain provisionsof organisations of the justice system (№0929 on 12 December 2012 ). In the case it gets adopted, the presidents of courts will get back their supervisory powers over judges and will be granted the right to determine the specialization of a judge. This will open a possibility to bypass the automatic distribution of cases (at the moment their specialisation is determined jointly by judges of respective courts). In the course of judicial reform the presidents of courts were deprived of those powers in order to reduce dependence of judges to their presidents. However, the renewal of those powers in favour of politically loyal heads of courts only increases the control of the government over courts.

The political power will lose interest in the presidents and vice presidents of courts and stop with the attempts to expand their powers, if those judges are elected by organisation of judges of those respective courts. Any centralisation in these matters may lead to a creation of strict hierarchy within courts that is not acceptable in a court system.

Thus, the powers of High Council of Justice have to be exhaustively defined in the Constitution. The HCJ has to decide on the appointments, transfer, accountability and dismissal of judges. The discussion on the power to appoint the presidents and vice presidents of courts, has to be resoled in favour of the organisation of judges of those courts.

Appointment of Judges

The Venice Commission has positively evaluated the suggestion to remove the role of the Parliament in the decisions concerning judge's career. For many years the Commission has been insisting on this matter, since the participation of political institutions in these issues presents a serious threat to the authority of the judicial institutions. As both drafts embody this idea there is no need for further discussion in this mater.

Also, authors of amendments to the Constitution do not predict the election of judges by the people. Despite its democratic character, elections lead to additional politicization of judges duties. The judge would be forced to engage into an election campaign. And who if not business and politics would provide him with support? Once elected the judge would have to work to pay off the resources he received.

It is correct that the draft of the Commission of the Constitutional Assembly presupposes election of magistrates, as an attempt to restore confidence in the justice system. However, even a magistrate, that passes decisions in insignificant matters, can be interesting for local politicians and businessmen as an instrument to increase their influence in the region or to punish their competition.

Taking into account the basic requirements for the independence of judges, the Venice  Commission does not recommend the election of magistrates by the people: “Introduction of such system is very dangerous, as the judges will be forced to participate in an election campaign or even worse their campaign could be run by the political parties. In addition, such system presents a threat to the objectivity of a judge, as he will be tied by “loyalty“ to the political party that supported his election. This system should not be introduced in Ukraine in a situation when the independence of the judiciary is a key segment in the fight against corruption” (CDL-AD(2013)014).

Even if it may sound “non-democratic”, the Parliament and the people have no place in the formation of the judiciary. The President can “nominally” appoint a judge based on the results of a competition, if after he has no impact on his career. Therefore it’s for the best that all the appointments as well as dismissal of judges are done by the depoliticized High Council of Justice.

The restoration of trust in courts cannot be done by introducing the election of judges, but with conducting recertification of all judges in order to “purify the judicial system” from those judges that disregard the democratic values and are subjected to various external influences. It would be suitable to include the prepositions for recertification of judges in the amendments to the Constitution. It is necessary to adopt a special law in order to implement recertification and in this case the experience of Germany can prove to be useful, as a successful recertification was conducted in the East Germany during the process of “desovietization”.

With regards to requirements for future judges, both drafts suggest an increase in the minimum age from 25 to 30 years, as well as the increase in the years of experience of working in the field of law from 3 to 5 years. The Venice Commission has evaluated this proposition as reasonable (para. 26 CDL-AD(2013)014).

However, in our opinion, this novelty will not lead to quality of the judiciary, at last not in the near future. In the majority of cases the best experts have already made their careers by the time they turned 30 years. That is why the position of a judge will attract those who failed to achieve the same success. In other words it will not attract the very best. Moreover, as our research shows, on average throughout 2011-2012, for every 1000 judges, 10 of them under disciplinary charges were appointed for the first time, and 17 of them were appointed for an unlimited term. The similar results appear with regards to the dismissal of judges for violation of their oath, which means that the older judges were held accountable more that the younger ones.

That it why, in our opinion, the youth, in case they received their legal education in accordance with the European values can be more progressive in their judicial activities that the older generation with the soviet state of mind.

Both drafts predict that the “selection of candidates to the position of judges is carried out on the competitive base in a procedure determined by law.” This is truly a progressive suggestion. However, it needs further clarifications: it it necessary to conduct competitions, not only in the case of appointments of judges, but also for their transfer, in particular to the courts of higher level.

Nowadays, transfers of judges to higher level courts are decided behind the scene, since there is no notification on openings. In order to confirm one just has to visit the web page of the High Qualification Commission. Thereby, the proposals for the implementation of the principle of tenure of judges are positive.

In order to increase the credibility of judges, we propose to conduct a reclassification after introducing amendments to the Constitution and the establishment of the respective bodies.

It is also necessary to conduct competition not only for the appointments for judges but also for their transfer, including transfer to higher courts.  In our opinion increase in the minimum age for future judges is unnecessary.

The role of the Supreme Court

As a result of the reform in 2012, the Supreme Court lost the ability to influence the justice system and practice. Despite the introduction of compulsory character of its judgments on all courts of general jurisdiction in dealing with similar issues, the Supreme court began to examine only those cases that were approved by the respective higher specialized court. In other words, the court after ruling on a case, also decides will it pass on the complaint on this ruling to the Supreme Court. The decision not to pass on the complaint can not be appealed. In addition, the Supreme Court lost its powers with regards to securing a uniform application of Procedure Law. Such reform was enforced due to disloyalty of many judges of the Supreme Court and its administration to the representatives of a new political power.

The draft of the President's Administration does not predict any changes of this situation on the Constitutional level. In the draft by the Constitutional Assembly it’s suggested that the role of the Supreme Court should be defined in the Constitution.

It is suggested that the Supreme Curt has the following role:

1) secures uniform application of rules of substantive and procedural law within the legally defined norms;

2) revises cases heard by the international legal institutions whose jurisdiction was acknowledged by Ukraine, and violation of Ukraine's international obligations based on judgments in such cases;

3) exercise of other powers defined by the Constitution and other laws of Ukraine

In addition, the drafts suggest empowering the Supreme Court with legislative initiative.

In the light of former limited powers of the Supreme Court, the Venice Commission has acknowledged that changes regarding power to secure unification of the law are very desirable. However, it criticized the provisions of the draft that would empower the Supreme court with the legislative initiative, as this would drag this court into politics (para. 45 and 46 CDL-AD(2013)014).

In our opinion, it is not necessary to define in details the powers of the Supreme Court in the Constitution, since that would limit the development of that institution. It is more than enough to define its role within the justice system. For example, the Supreme Court, as the highest court in the system of courts of the general jurisdiction secures uniform application of the law by those courts”. The powers of the Supreme Court to review the court cases should be defined by law. The Constitutional Court can always determine does the adjustment of laws correspond to the role of the Supreme court as defined by the Constitution.

With regards to the right of the Supreme Court to have legislation initiatives, the Venice Commission constantly highlightsthe incompatibility of such powers with the principle of division of power and the independence of the judiciary. As stated in the report by the Venice Commission on the issue of the legislation initiative: “the judicial power has agreed to interpret the law, not to initiate their adaptation” (CDL-AD(2008)035, para. 59).

Therefore, the Constitution should envisage the general purpose of the Supreme Court without laying down specific powers and not provide it with the legislative initiative.

Conclusion

Without structural reform that will precede the amendments to the Constitution, the courts will not become more independent. Amendments to the Constitution, that would be opposite from the recommendation of the Venice Commission, can preserve the mechanism of dependence of judges. There is an impression that the preservation of political influence is the goal of the constitutional changes, which political power is proposing under the pretext of meeting European standards.

That is why we suggest that amendments to the Constitution, in particular those concerning the composition of the High Court of Justice, should be introduced, only after creating a legal framework for the functioning of the institutions of the judicial self-government.  Also, more transparency is need in the process of appointments of members of the HCJ by other subjects, such as human rights organizations, law schools and research institutions, lawyers, the Parliamentary Commissioner for Human Rights.

The powers of the HCJ have to be exhaustivelydefined in the Constitution. HCJ has to decide on the appointments, transfers, disciplinary procedures and the dismissal of judges. In doing so, it should receive help from Qualification and Disciplinary commissions. Also, the HCJ can resolve the same issues concerning prosecutors. It is advisable to give the role of appointing presidents and vice presidents of courts to organizations of judges of those respective courts.

In order to increase the trust in courts, after changes to the Constitution amendments and the establishment of respective bodies, it is necessary to conduct recertification of judges. Also, it is necessary to introduce the election of judges on a competitive base, not only for their appointments, but also for transfers to other courts, in particular to higher courts. On the other hand, the changes in the minimum age for the future judges are less relevant.

We suggest that only the general role of the Supreme Court should be defined in the Constitution, without going into details. Also, the Supreme Court should not have the right of legislative initiative.

In our opinion, if the amendments to the Constitution are done with caution, they can bring the Ukrainian judiciary, not only closer to the European standards but also to its people.

P.S. On the 4 of July, the President submitted to the Parliament the draft law on the amendments to the Constitution with regards to the guarantees to the independence of the judges, without waiting for the results of the work of the Constitutional Assembly. The submitted project is not very different from the one that was analysed by the Venice Commission. It was suggested that the right to a fair trail should be introduced into the Constitution, while the provision regarding the appointment of the Prosecutor General to a term of 5 year was removed from the draft ( it is clear that the current leaders want to maintain control of the prosecutor's office even after the possible loss of power). The only remark of the Venice Commission that were considered was that suggested that the Prosecutor General, a member of the High Council of Justice, will not be required to participate in the decision that concern the judges.

Considering the given situation, the opinions that the authors expressed in this article are even more actual. By introducing such amendments to the Constitution without structural reforms, that would precede, will result in the preservation of political influence on the judiciary on the Constitution level.

Ihor Koliushko,

Roman Kuybida,

Centre for Political and Legal Reforms (Ukraine)