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- Constitutional Court declared unconstitutional the liquidation of the Supreme Court of Ukraine and a competitive selection for its judges
- Lack of changes in the judicial system in the long run will lead to impoverishment of the population – IMF
On February 18, the Constitutional Court declared unconstitutional the provisions of the Law of Ukraine “On Judicial System and Status of Judges”, which provided for the liquidation of the Supreme Court of Ukraine, a competitive selection for its judges to the new Supreme Court, and the establishment of life-long compensation under the old rules for the retired judges who did not pass the qualification assessment and did not work thereafter for another three years (which is at least twice below the compensation level under the new law on the judicial system).
The provisions establishing the new Supreme Court and appointing judges to it as a result of the competitive selection were recognized as constitutional, as well as the provisions whereby the powers of five-year judges cease after the expiry of the five-year term, and in order to continue working as judges they must participate in a competitive selection on a general basis.
2. CPLR Assessment
The decision of the Constitutional Court will not significantly affect the work of the Supreme Court. The court determined that only the renaming of the highest institution of the judiciary took place, and therefore judges of the Supreme Court of Ukraine should continue to exercise their powers as judges of the Supreme Court. However, some of the judges of the Supreme Court of Ukraine within the competitive selection did not confirm the ability to administer justice in a court of cassation. Probably the Parliament should determine the procedure for transferring judges of the Supreme Court of Ukraine to a renamed court.
Recognition of provisions on life-long financial compensation as unconstitutional in practice could lead to an increase in staff lack in the judicial system due to a new wave of resignations and the absence of a High Qualification Commission of Judges responsible for the selection of new judges. As stated by the CPLR expert R. Kuybida: “After a new wave of resignations, the number of retired judges and those who will remain in employment may equal. The burden of maintaining such a costly and inefficient judicial system can increase social tensions in society.”
A detailed analysis prepared by the CPLR experts can be found at the following link.
On February 19, the Permanent Representative of the International Monetary Fund to Ukraine Goesta Ljungman participating in a macroeconomic debate at the US Chamber of Commerce in Kyiv named the judicial system and the rule of law among areas where Ukraine is lagging far behind Europe. He also described three scenarios of possible development of Ukraine:
1) full-fledged reform, which includes, in particular, overcoming the above gap and GDP growth by 6% annually;
2) partial reforms, in particular, maintaining the gap in the judiciary and increasing the GDP by 4% annually;
3) rollback of reforms, which will result in a population 20% poorer in 20 years. The current pace of reform in Ukraine is a scenario between the second (partial reforms) and the third (rollback of reforms).
2. CPLR Assessment
CPRR expert Roman Smaliuk said: “Goesta Ljungman's position indicates that international partners do not see significant changes in improving the judicial system in Ukraine. This indicates the need for comprehensive reforms in the rule of law, which will influence the economic growth and well-being of Ukrainians".
It should be reminded that the Center's experts developed the Concept of a new judicial reform consisting of five priority measures, including:
1. Reorganization of the bodies for the selection of judges and bringing them to disciplinary responsibility, changing the approach to their formation.
2. Introduction of monitoring of adherence to judicial duties as an additional mechanism for ensuring the accountability of judges.
3. Improvement of the qualification assessment procedures and revision of certain decisions of the previous composition of the HQCJ.
4. Improvement of access to justice, initiating a full-fledged jury trial and revision of sentences of those who were arbitrary convicted.
5. Creation of an Anti-Corruption Chamber of the Supreme Court.