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Upon submission of the President, the Parliament granted unjustified privileges to judges of the Supreme Court

04.06.2020
Judiciary /
Judiciary and Status of Judges

Event

On June 2, the Verkhovna Rada of Ukraine adopted the Law “On Amendments to the Customs Code of Ukraine in Relation to the Reform of the Prosecutor's Office and Changes in the Judicial System of Ukraine” initiated by President Volodymyr Zelensky, according to which the Chairman and judges of the Supreme Court, as well as the Prosecutor General and their family members traveling together shall be exempted from personal inspection, inspection of hand luggage and luggage during customs control.

CPLR assessment

Previously, the judges of the Supreme Court of Ukraine and the Prosecutor General of Ukraine, as well as members of their families, enjoyed these privileges. In fact, under the guise of “technical amendments” (replacing the names of old institutions with new ones in the Code), such a privilege was granted to persons that did not have it before.

First, Article 24 of the Constitution of Ukraine stipulates that citizens have equal constitutional rights and freedoms and are equal before the law. By acquiring the status of a judge, a citizen receives additional rights and guarantees, which, however, are inextricably linked to the position, and primarily designed to ensure the ability to fully perform their duties, including being independent in their activities. As stated in the Opinion of the Advisory Council of European Judges No. 1 (2001): "Independence of judges is a prerogative or privilege granted not in the personal interests of judges, but to ensure the rule of law and meet the interests of people seeking and awaiting justice."

Exemption of the Supreme Court judges and members of their families from customs inspection has nothing to do with the administration of justice by them, is not a guarantee of their independence, and therefore, this privilege is unjustified and violates the constitutional principle of equality of citizens.

Second, the Law “On the Judiciary and Status of Judges” stipulates that judges in Ukraine have a single status regardless of the place of the court in the judicial system or the administrative position that the judge holds in court (Part 2 of Article 52). Single status presupposes, first of all, that all judges enjoy the same rights and privileges. However, granting the privilege in relation to customs inspection only to judges of the Supreme Court certainly violates this principle.

Third, granting of this privilege to judges of the Supreme Court of Ukraine and the Prosecutor General of Ukraine took place in 2002 through the adoption of the Customs Code after its veto by the President of Ukraine. Then the President proposed to reconcile the list of persons not subject to customs inspection with the list of persons provided with state guard (Chairman of the Verkhovna Rada of Ukraine; Prime Minister of Ukraine; Chairman of the Constitutional Court of Ukraine; Chairman of the Supreme Court of Ukraine; First Deputy Chairman of the Verkhovna Rada) Ukraine, First Vice Prime Minister of Ukraine, Minister of Foreign Affairs of Ukraine, Prosecutor General of Ukraine). This probably made sense, given the specifics of state guard. However, during the final adoption of the Customs Code, the people’s deputies decided to expand the list to include judges of the Supreme Court of Ukraine and the Constitutional Court, who, as a general rule, were not provided with state guard.

In view of the above, the CPLR experts are of the opinion that in order to address this problem, a preferable solution would be to veto the law by the President with a proposal to reasonably narrow the circle of persons exempted from customs inspection, for example, focusing on the circle of persons provided with the state guard.