By letter of 5 November 2013, the Head of the Administration of the President of Ukraine, Mr Lyovochkin, requested the Venice Commission to prepare an opinion on Proposals, submitted by 156 members of the Verkhovna Rada, amending the draft Law “On Amendments to the Constitution, strengthening the Independence of the Judges” (CDL-REF(2013)050, hereinafter “the Proposals”).

The Venice Commission has provided a series of opinions on Ukraine’s judiciary. The most relevant for the examination of the Proposals is the “Opinion on the Draft Law on the amendments to the Constitution, Strengthening the Independence of Judges and on the Changes to the Constitution proposed by the Constitutional Assembly of Ukraine”. That Opinion was given, inter alia, on the Draft Law on the Amendments to the Constitution of Ukraine, strengthening the Independence of Judges (CDL-AD(2013)014).

This Opinion relates to an amended version of the Draft Law on the Amendments to the Constitution (hereinafter “the Draft Law”). The Proposals do not directly amend the Constitution but they amend the Draft Law. Therefore, the Constitution, the Draft Law and the Proposals have to be read together. Document CDL-REF(2013)058 shows in the column on the left side the earlier version, subject to the Opinion CDL-AD(2013)014, and in the right column the Draft Law to which the Proposals refer. Footnotes have been added in Document CDL-REF(2013)058 in order to show to which part of the Draft Law each of the Proposals refers.

Conclusions

The Proposals submitted by 156 deputies purport to amend the Draft Law amending the Constitution, submitted by the Presidential Administration of Ukraine. These Proposals contain some welcome elements, notably:

 the introduction of a right to fair trial within reasonable time (however, its implementation needs to be addressed);

 the exclusion of the re-appointment of the Prosecutor General;

 the strengthening of the role of the Supreme Court;

 the recognition of the jurisdiction of the International Criminal Court at the constitutional level;

 the reduction of judicial immunity;

 the constitutional guarantee for the competitive selection of judges;

 the direct appointment and dismissal of judges by the High Judicial Council.

However, the proposals contain also very critical elements:

 the impeachment of judges by the Verkhovna Rada and even the direct initiation of such impeachment by citizens;

 discrimination in the retirement age between 'higher' and 'lower' ranking judges;

 the dismissal of judges because of a “breach of oath”;

 a requalification examination for all judges;

 the dismissal of judges because of a refusal of a transfer against their will;

 the remaining link between prosecution and the High Judicial Council;

 an incoherent distribution of functions between the High Judicial Council and the High

Qualification Commission.

The Venice Commission hopes that the positive elements of the Proposals can be included in the Draft Law amending the Constitution without significantly delaying its entry into force. The Commission is ready to further assist the Ukrainian authorities, should they make a request for such assistance.

    Text of the opinion CDL-AD(2013)034