I. Introduction

In a letter dated 13 November 2014, the Minister of Justice of Ukraine requested the opinion of the Venice Commission on the Draft law on Amending the Law on the Judicial System and the Status of Judges of Ukraine (hereinafter, “the draft law”).

On 3-4 February 2015, a delegation of the Venice Commission composed of Mr Gianni Buquicchio, Mr Thomas Markert and Ms Hanna Suchocka visited Kyiv and held consultation meetings with the President of Ukraine, Mr Petro Poroshenko, Prime Minister Arseniy Yatsenyuk, Minister of Justice Pavlo Petrenko and the Speaker of the Verkhovna Rada Volodymyr Groysman, on constitutional reform, reform of the judiciary, electoral reform and decentralisation. The Venice Commission is grateful to the Ukrainian authorities and to other stakeholders for their excellent co-operation during the visit.

This Preliminary Opinion, which was prepared on the basis of the comments submitted by the experts mentioned above, was taken note by the Venice Commission at its 102th Plenary Session, in Venice, 20-21 March 2015.

 

II. Draft amendments

The request of 13 November 2014 made by the Minister of Justice was accompanied by an “Explanatory Note” on the Draft Law on Amending the Law on the Judicial System and the Status of Judges of Ukraine, providing some explanations on the background to and the purpose of the said amendments.

It appears from the Explanatory Note that the amendments aim to remedy a number of deficiencies in the judicial system, which the Venice Commission and the Directorate General of Human Rights and Legal Affairs have pointed out in their 2010 Joint Opinion on the Law on the Judicial System and the Status of Judges of Ukraine (CDL-AD(2010)026).

According to the Explanatory Note, the draft amendments also aim to fulfil the requirements of the ECtHR judgment in the case of Oleksandr Volkov v. Ukraine (no. 21722/11, judgment of 9 January 2013). In this case, the Court found that the disciplinary proceedings against the applicant who was a Supreme Court judge at the relevant period, disclosed a number of serious issues pointing to structural deficiencies in the proceedings both before the High Council of Justice and at the parliamentary stage. In particular, the fact that the judges elected by their peers constituted a tiny minority of the members of the High Council of Justice who hear the applicant’s case and that the members of the High Council of Justice who carried out the preliminary inquiries and submitted the request for the application of disciplinary measures, subsequently took part in the decision, were the main reasons that led to the Court finding that the proceedings before the High Council of Justice were not compatible with the principles of independence and impartiality required by Article 6 of the European Court of Human Rights (hereinafter, “ECHR”).

The Court reached the same conclusions concerning the parliamentary stage of the disciplinary proceedings against the applicant which “served to contribute to the politicisation of the procedure and aggravate inconsistency of the procedure with the separation of powers”, amounting thus to a violation of Article 6 ECHR.

The main improvements to the judicial system proposed by the draft law as mentioned in the Explanatory Note are as follows:

a. Simplification of the judicial system and strengthening its institutional capacity:

- Merger of commercial and civil courts and the reorganisation of local commercial courts into district courts for civil and criminal cases which will enable the burden of local courts of general jurisdiction to be reduced;
-The role of the Supreme Court in the formation of a coherent judicial practice will be enhanced.

b. Introduction of new mechanisms for the selection of judges based on objective criteria and fair procedures;
c. Exclusion of the power of the President and of Parliament to decide on the transfer of judges;
d. Introduction of a competitive basis for the appointment of all judges;
e. A clear definition of the system of disciplinary liability of judges as well as a clear list of disciplinary grounds will be provided;
f. The body in charge of the preliminary examination of disciplinary complaints against judges will be separately established from the decision-making body on disciplinary charges;
g. Measures will be taken in order to ensure the transparency and openness of court proceedings, such as the permission to use video and audio recording in the courtroom.
h. Implementation of an electronic exchange system of documents between the courts in order to speed up court proceedings.

In addition, it appears from the information submitted by the authorities before the Committee of Ministers of the Council of Europe within the framework of the execution of the ECtHR judgment in the case of Oleksandr Volkov v. Ukraine that the draft amendments are a part of a wider programme on the reform of the judiciary. The Programme of the Cabinet of Ministers approved by Resolution of Parliament on 27 February 2014, in order to ensure fair justice, to restore the guaranties of independence of the judiciary and to carry out a special screening process of current judges envisages to adopt, amongst others, amendments to the Law on the Judicial System and Status of Judges, to the Law on the High Council of Justice and a new Law on the Funding of the Judiciary. In parallel, a National Council of Reform of the Judiciary was established by presidential decree which consists of leading experts in the area of judicial reform and aims to implement of the State policy on judicial reform.

 

III. Standards

Independence, impartiality, integrity and professionalism are the core values of the judiciary. The Venice Commission will examine the draft amendment law in the light of international standards on the independence of the judiciary, as in particular reflected in:

 - Article 6 of the ECHR and the case-law of the European Court of Human Rights (hereinafter “ECtHR”);

 - Judicial Appointments, Report adopted by the Venice Commission at its 70th Plenary Session (Venice, 16-17 March 2007) (CDL-AD (2007)028);

 - Report on the Independence of the Judicial System Part I: the Independence of Judges adopted by the Venice Commission at its 82th Plenary Session (Venice, 12-13 March 2010);

 - Recommendation CM/Rec (2010)12 of the Committee of Ministers of the Council of Europe to Member States on Judges: independence, efficiency and responsibilities (which replaces the Recommendation Rec (94)12 of the Committee of Ministers to Member States on the independence, efficiency and role of judges);

 - The European Charter on the Statute for Judges (adopted at the multilateral meeting on the statute for judges in Europe, organized by the Council of Europe, between 8-10 July 1998);

 - Opinion no. 1 (2001) of the Consultative Council of European Judges (CCJE) for the attention of the Committee of Ministers of the Council of Europe on standards concerning the independence of the judiciary and the irremovability of judges;

 - Opinion no. 3 (2002) of the CCJE to the attention of the Committee of Ministers of the Council of Europe on the principles and rules governing judges’ professional conduct, in particular ethics, incompatible behaviour and impartiality;

 - Opinion no. 10 (2007) of the CCJE to the attention of the Committee of Ministers of the Council of Europe on the Council for the Judiciary at the service of society;

 - The Bangalore Principles of Judicial Conduct, 2001, as revised at the Roundtable Meeting of Chief Justices held in the Peace Palace, The Hague, November 25-26, 2002;

 - Consultative Council of European Judges, Magna Carta of Judges (Fundamental Principles), Strasbourg, 17 November 2010);

Generally, the draft law appears to be coherent, well put together and in line with European standards. There are many previous recommendations of the Venice Commission that have been taken into account in the process of the preparation of this draft law, as indicated throughout the present Opinion and in particular in its paragraph 17.

However, for the Venice Commission, the real problems concerning the independence of the judiciary in Ukraine lie rather in the constitutional provisions than in the Law on the Judicial System. To achieve an effective justice reform that satisfies European standards in Ukraine, constitutional amendments are necessary. Moreover, certain issues such as the existence of two levels of cassation courts could be addressed following constitutional amendments.

The following main recommendations are made:

Legislative level: - Legitimate aims for restricting the right to video and audio recording during court hearings should be indicated; - the President’s role in the establishment of courts should be a formal one once the appropriate proposal and recommendation has been made; - the President’s role in the appointment of judges to temporary positions should be a formal one and this should be clearly indicated in the draft law; - provisions concerning the monitoring of the lifestyle of a judge should be construed in a detailed manner and provide for some guarantees in the procedure for the judge concerned.

Constitutional level: - The role of the Verkhovna Rada should be excluded in the appointment to permanent posts and in the dismissal of judges; - the composition of the High Council of Justice should be modified so as to ensure that a substantial part of it are judges elected by their peers; - the competence of the Verkhovna Rada in lifting judges’ immunities should be excluded.

The Venice Commission remains at the disposal of the Ukrainian authorities for any further assistance they may need in improving the legislation and the Constitution on the provisions concerning the judiciary and the status of judges.  

Text of the opinion CDL-AD(2015)008