EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW
(VENICE COMMISSION)
COMMENTS
ON THE DRAFT LAW ON THE JUDICIARY
AND
THE DRAFT LAW ON THE STATUS OF JUDGES OF UKRAINE
by
Ms Hanna SUCHOCKA
(Member, Poland)
1. It is worth recalling the words
written many decades ago by a British constitutionalist: “Constitutional states
do not nowadays greatly differ in the ultimate rights secured to citizens
though the judicial „department”. They all ensure the impartiality of the judge
by placing him above fluctuations of party feeling and giving him security of
tenure without making it impossible to remove him for crime or corruption.” That formulation encapsulates the very
essence of the problem, i.e. the placement of the judicial authority within the
state’s political system.
2. One of the
main challenges for all the post-communist countries was
precisely the problem of the
placement of the judicial authority within the democratic state’s political
system. The main problem was how to build a really independent
judiciary. Indeed, before the 90’s governments in the region were formed in
accordance with the doctrine of unity of
power instead of separation of powers.
The government’s subordination to and
dependency on both legislative and executive branches was accepted and adhered
to. The long tradition in these countries of unity of power, where the courts were also subordinated to the
directives coming from the leading party, and
as other organs were persist to
implement state policy and receive instructions, had to be change. Thus, a genuine separation
of the three branches of government and a firm institutional arrangements for
judicial independence would be able to prove effective in shielding courts and
judges from somewhat immature political process. The crucial question since the beginning of
this transformation was how to secure the independence of judges. How to diminish
the role of executive power
towards judges. How to create a system of guarantees for the independence of judges, in
both senses: - the individual, personal
independence of judges, and – the autonomy, independence of judiciary vis a
vis other state organs, especially
executive power. What kind of independent body should be established to better
guarantee the independence of judges.
- Both laws under discussion, “On
the Judiciary” and “On the status of Judges” in Ukraine are just examples of searching for a system which would best
guarantee the independence of judiciary based on the principle of
separation of powers. The Laws are prepared with the general aim to
fulfill the European standards on the Judiciary, in line, among others,
with: Recommendation No.R (94)12 of
the Committee of Ministers to member States on the independence,
efficiency and role of judges, and
European Charter on the Statute for Judges and Explanatory Memorandum
1998.
- General remarks.
a).
Both Laws seems to be over regulated in
details. They are very voluminous and contain regulations which are not
necessary in the Law. Sometimes there are “too many words” to describe the
situation, and as a result there are
some repetitions and for that reason many provisions of the Law are
not very clear. Some articles are written in such a way that, they give
the impression, they contain not only provisions but also kind of comment to
the provisions themselves. This
technique of making law, which was
called legal positivism, can give rise to the negative side effect
that the rules are difficult to find and to know even for
practicing judges.
b) The better solution would be to make one
single law “On the judiciary and on the
status of judges” instead of two separate laws, since the provisions
(regulations) very often are divided between two laws. Part is regulated
by the law “on the Judiciary” and other
part by the law “on the status of
Judges”.(for example disciplinary procedures). Trying to make correct
interpretation of the provisions one
needs to read both laws together. For that reason, a new draft of only one Law,
could help make the regulations more
coherent and understandable. Taking this
suggestions into account it would be possible to shorten both Laws and make them clearer.
I.
Law “On the status of Judges”
5.
Chapter 1. General provisions.
This chapter contains the general
rules on the independence of judges and its
guarantees. Art. 3.1 defines the independence of judges by
describing two pillars of the principle
of independence of judges: - the judge
shall be independent from any illegal influence, pressure or interference whatever source they are coming from,- the
judge is subordinated only to the Constitution and law, being governed by the
principle of the rule of law. There is also a very clear statement that
interference with the judge’s activity of administering justice shall be
prohibited and shall entail liability defined by the law. One can agree
that the general rules are in line
with European standards. The regulation of Art. 3.1 is very clear, prohibition
of interference in the administration of
justice is a substantial element of judicial independence. Because of this I
see no reason for repetitions again in Art. 3.4.5) and 3.5
the same regulations but with different wordings. This is only one of the examples of the
repetitions in the law which make the whole law very unclear.
Art. 4 on the inviolability and immunity of judges I
have strong reservations. The immunity
is too wide. It is not only functional immunity. Art. 4.1 states that immunity
of a judge shall spread upon his/her housing, office premises, transport and
means of communication, correspondence, his/ her property and documents. The
scope of immunity seems to be much wider than parliamentary immunity. The Venice Commission was very critical
towards the scope of immunity of judges saying that: “it is very doubtful
whether there is a need for such a wide immunity for judges like that for
deputies…there should be only a limited functional immunity for judges from
arrest, detention and other criminal proceedings that interfere with the
workings of the court.” (CDL-AD(2005)023). A very clear line must be drawn
between the immunity which is necessary for guaranteeing the work of the court
and privilege. The scope of the immunity proposed in Art. 4 to all judges
despite what cases they administer is going too far. It seems to be rather a
kind of privilege, which is not in line with European democratic standards. The
immunity proposed in Art. 4 should be limited. One may also have doubts as regards the competencies of Verkhovna Rada to approve that a judge could
be arrested or taken into custody.( Art.4. 2) That decision should be taken by
court or by High Council of Justice (HCJ) but not by parliament.
I also see
no reason for a criminal case concerning a judge to be initiated only by
the General Prosecutor or his/her deputy. ( Art. 4.4). But despite
this regulation, in fact, (in the light of the provisions on disciplinary
procedure) it is not clear who initiates the procedure. In my opinion Art. 4
must be rewritten.
I have also strong
doubts as regards Art. 6 the state
protection of the judge, his family and
property. The state protection can be
given to a judge but only in specific circumstances. This provision seems to be too wide In my opinion this
Article should be rewritten, as well as
Art. 3.10.
6. Art. 10 and 12
rights and responsibilities of judges. The
possibility of approving the code
of judicial ethics is welcome step in right direction. art. 12 states that the judge shall be obliged to comply
with the rules of judicial ethics. It has been stated in several venice
commission opinion that such code should be
approved by the supreme judicial council and regulated at the level of
law. (cdl-ad (2002)15) . Since a number of terms in laws on judicial conduct
are broadly formulated, Codes of Ethics may give judges detailed instructions
on how to interpret them. for example the notion of political activity
prohibited in the overwhelming majority needs further specification. Similarly,
codes of ethics may advise judges which
types of teaching activities, (besides scholarly and artistic activity)
that judges are generally permitted to
perform are incompatible with the judicial office.
There could be a clearer description of all types
of the judge’s liability. Some duties of judges mentioned for example in
Art. 10. 4 in such a situation could be
part of code of ethics.
A
very positive development I see in Art. 10.6) which is one of the important
guaranties of the transparency of judges, to provide a yearly income statement to the State judiciary administration
of Ukraine
for publication on an official web-site
of a judicial branch of power. Anti corruption rule is one of the crucial
guaranties of the authority of judges and judiciary.
7. Requirements
and selection of candidates for the post of judges.
Art.23- 31. The procedure seems to be
regulated very detailed, such is the
“style” of the Law. All documents are listed which shall be submitted by
candidate for judge to High Qualifications Commission of Judges (HQCJ). Such
detailed regulations are not needed. The technical information (Art. 27.1
1)-6) could be also regulated by bylaws.
But in the wording of Art.27 there is one danger. Despite such
detailed regulations there is a point 10) of a very general nature which
states that “to take part in the examinations a person shall submit.. if
available – other documents certifying candidate’s readiness to work on the
post of judge”. This bids the question, what kind of other documents are no
listed there in all the detailed regulations. Even worse, non acceptable
wording is repeated in Art. 31.2. “The issue of recommending the candidate to
the appointment to the post of judge shall be decided by HQCJ based on results
of interview, qualification exam, medical certificate of the person’s state of
health and other information about
the candidate which define candidate’s level of professional knowledge,
personal and moral qualities.” This provision is a consequence of Art. 28.4
giving HQCJ the right to collect information about candidate, and instruct
other state authorities to collect such information. Even organisations and
citizens shall have right to submit information about the candidate. What kind
of information? What kind of procedure regulates the rule for collecting of
this kind of information? What is the knowledge of the candidate of this
information? This provision is not in line with European standards. It goes
against the transparency of the whole process of selection of judges. These
provisions show clearly that regulations
should not be too detailed but more precise.
Articles
23 and 24 there also seems to be confusion as to what concerns qualifications
for post of judges. Art. 23 states that for post of judge a citizen may be
recommended who has a command of the
state language, Art. 24 declares the general principle of equality in the
process of selection of judges regardless, among others, linguistic
characteristics of the candidates. This needs to be corrected.
8.
Appointment of judges.
Art. 32
regulates the procedure for appointment
to the post of judge. There is an obligatory competition for the post of judges
announced and conducted by HQCJ. The
decision on recommending the candidate to the post of judge made by the HQCJ is then sent to the High Council of Justice.
The High Council of Justice makes a proposal on appointment of the candidate
for a post of judge and send it to the President. The president makes a
decision on the appointment of the candidate to
judge.
Art. 34 of the Ukrainian Law, establishes, as in many
other countries, the possibility of appointing judges for a limited period of time (5 years) and
following this period of election to
judge without term limitation. That solution, ( a kind of probationary
period) always evokes criticism because, one may argue, is going against the general principle of the
ban of removal of judges. Especially when the procedure for nomination for an
unlimited period of time is not very clear. The critics point out that it may
restrict a judge’s impartial adjudication, since he may issue rulings or
verdicts with a view to his future permanent nomination. Personally I am not so
strong opponent to this solution. As I have written before, it can be seen as a
quest for a method of appointing the best persons to the office of judge. There
must be a very clear procedure for the nomination of judges for unlimited
period of time. In any case a 5 year
period seems to be too long.
The decision on the
appointment for the post of judge
for 5 years is made by the President of Ukraine. The procedure seems to be very
formalised. There are three bodies involved in the process of nomination. High
Qualifications Commission of Judges, the High Council of Justice, President of Ukraine. In my opinion it would be better to empower the High
Council of Justice with all the competencies to announce and conduct the competition. High
Classification Commission might be, in such a situation, a body inside the High
Council of Justice.
9.
Election
of judges.
Chapter 3 , Art. 36 – 45 regulates the procedure on
the election of judges without term limitation. The right, in the light of the
Constitution, to elect judges for an
unlimited period of time is a right of Verkhovna Rada. I am very critical of this solution.
The Law, however,
proposes the regulation in line with the Constitution. Perhaps the discussion on the new laws will lay a
base for the amendments to the Constitution in the chapter on Judiciary. I am strongly convinced that the system of
election of judges should be changed. The Ukrainian law proposes a very complicated system for the election of judges
for unlimited term. The procedure is completely in the hands of parliament and
for that reason it could be exploited
for political purposes (game) between different political parties.
The procedure for the election of judges proposed by
the Law is very politicised. Art.
36.1.6) states that Verkhovna Rada shall decide to elect or refuse his/her
election to the post of permanent judge. There are no clear rules, no clear conditions under which Verkhovna Rada can decide to refuse the
election. Art. 44 is very ambiguous, because it states that “if candidate was
not elected to the post of permanent term judge... due to newly discovered
circumstances reported in speeches of the people’s deputies of Ukraine, the
Committee of the Verkhovna Rada , after examined the circumstances(....) shall
decide to re-submit the previously rejected candidate to the plenary sitting of
the Verkhovna Rada. If the Verkhovna Rada twice refused his election it is not
permitted to submit candidate for election.” Art. 39. 1 regulates that the
Committe of Verkhovna Rada shall check the candidates compliance with the
requirement of the Constitution (Art. 127) and the Law but also verify appeals
of citizens, civic organisations, enterprises, institutions, and other bodies
regarding activity of the candidates.” This procedure seems to be a real
danger for the independence of judges.
In this procedure (Art. 38. 13) there is also a possibility to use “other
documents certifying candidate’s readiness to work on the post of
judge” (see comments above, p. 7).
This system of election of judges can cast a real
doubts about the probationary
period. After 5 years a judge can be refused by parliament for election to the
post of permanent judge without clear grounds. The danger that party politics
in taking the decision, prevail over the objective merits cannot be excluded.
In my opinion the whole procedure should be changed. The best solution would be to change
the system and give the right to appoint judges
for limited period as well as for an unlimited one the President. after conducting a competition
and on the proposal of the High Council of Judiciary. (But these proposal
involve a change of the Constitution, also as regards the composition and role of High Council of Justice)
Apart from my substantial reserves
as regards this chapter, I have also doubts
concerning the form at redaction of this chapter. The law on status of
Judges is too detailed in its regulation in this part. Some of the provisions
of Art. 38 should not be regulated by
Law (statute) but by executive act to this Law. The same reserve as before to
Art. 38 p. 13) . This point should be deleted.
Art. 39-41 should be regulated by the rules of parliament not by the Law
on Status of Judges, because the whole procedure of election of judges is done
on the ground of parliamentary rules, (the role of parliamentary commission,
the rights of MP, but the rights of judges are not sufficiently guaranteed).
10. Disciplinary
liability.
Laws on judiciary in various
countries generally put the obligation
on judges to refrain from conduct likely to compromise the dignity of the
judicial office. The grounds for disciplinary action vary from country to country.
It is however possible to list the most
common ground for such
disciplinary accountability.
Laws on judicial conduct generally establish an obligation for judge’s:
-to
refrain from conduct likely to compromise the dignity of the judicial office,
-to
avoid undue delays in the performance of duties,
-to
refrain from conduct within or outside office damaging the judiciary's
reputation,
-
to refrain from conduct discrediting the judicial office or the court,
-to avoid offences and omissions in
the discharge of their official duties
or grave disregard of deadlines for delivering judgment.
Generally the Law on the Judiciary
in different countries, in addition requires that judges not to disclose
certain information on the parties, not
to express themselves on matters under adjudication, not to accept gifts in
relation with their work. Some laws list frequent delays, unjustified absence
from work, interference in the activity of another judge, frequent negligence,
disclosure of rules on secrecy, unjustified refusal to perform office work. In
countries where judges are not permitted to be members of political parties or
to be involved in political activities the violation of the ban constitutes a
disciplinary offense.
The Ukrainian Law lists the grounds for
the disciplinary liability of judges in
Art. 52. 1)intentional
violation of procedural law rules during administration of justice or evidently
unqualified solution of case;
2)creation of obstacles for person’s
access to justice, not prescribed by law;
3)intentional delay of consideration
of an application, complaint or case;
4)evident display of partiality or
disrespect to any of the participants of proceedings; 5)commission of an
immoral deed in or out of the court;
6) systematic or grave violation of
rules of judge’s ethics;
7)use of his/her position for
obtaining personal benefits, not provided by the status of judges;
8)evasion of the required training
at the National School of Judges of Ukraine;
9)disclosure of confidential
information about a specific person out of court;
10) disclosure of secret which
became known to the judge during consideration of case in closed court sitting;
11)systematic ignoring of position
of higher level courts regarding application of legal norms in consideration of
cases;
12)receiving gifts from the
participants of proceedings or persons connected with them;
13)failure to submit or untimely
submission for publication of the proprietary situation declaration, submission
of false information in the declaration or concealment of revenues, property or
other information which are subject to declaration.
The list is very long and the
grounds are very differentiated. The majority of them are common with the conditions existing in other countries (mentioned
above). Some of the grounds, however, listed in the
Ukrainian law can give rise to doubts and in my opinion should never be put onto the list of grounds
for disciplinary liability. One of them is
p. 8) “evasion of the required training at the National School of Judges
of Ukraine”. The Ukrainian Law proposes the
mandatory system of training for judges. It should be remembered that according
to Opinion No 3 of the Consultative Council of European Judges (CCEJ) of the
Council of Europe,” the in-service training should normally be based on the
voluntary participation of judges.(…) they may be mandatory only in exceptional
cases”. Taking this into account, an
avoidance of a required training, should
never be seen as ground for disciplinary liability.
Some of the conditions listed in Art. 52 seems to be very
ambiguous. In concrete situation they could be interpreted in such a way as to
weaken the independence of judges instead
of guaranteeing it. In my opinion
such a danger could be seen in the
formulation of p. 11 “systematic
ignoring of position of high level courts regarding application of legal norm
in consideration of cases”. A judge may not be restricted solely by existing
case-law. The essence of his/her
function is to independently interpret legal regulations. For that reason, the
grounds for disciplinary responsibility, described in such a
general manner, as above in p. 11 should be deleted.
The formulation of Art. 52 p.1 can be confusing „intentional violation of norms of procedural
law during execution of justice or evidently unqualified solution of case”. How
far this can be taken is a problem of interpretation. In the case that it is a
problem of interpretation of law, the violation of norm in the process of
adjudication should be solved by way of
appeal not by way of disciplinary
procedure. Without doubt, such a vague
formulation of the principle of a judge’s disciplinary responsibility in such a
sensitive area as the adjudication process should be formulated in more precise
way.
P.5) is also very imprecise as
regards the definition of morality. This point should be absorbed by p. 6) systematic
or grave violation of rules of judge’s ethics;
11.
Disciplinary procedure.
The lack of clearly formulated rules of conduct involves the
risk of arbitrary prosecution of judges for
disciplinary offenses. This is, to some extent counterbalanced by
procedural safeguards. In most countries judges under investigation have the
right to present their arguments at oral hearings, they may be assisted by
counsel and appeal against decisions of the disciplinary body. In a number of
countries the rules of criminal procedure with all the safeguards protecting
defendants apply to disciplinary proceedings.
Ukrainian Law “On the Status of Judges” regulates this
disciplinary proceedings in Art. 53-58. (The further regulations one can find
in the Law on Judiciary). The procedure is regulated, as is the rule of this
Law, in very detailed manner. Art. 54 states that disciplinary proceedings
shall be carried out by: 1) the Disciplinary Commission of Judges (for judges
from local and appellate courts), 2) the High Council of Justice (for judges of
specialised courts and Supreme Court Judges). The detailed regulations aim to
make the disciplinary procedure very transparent, which can be welcome as a
solution going in right direction. As
has been pointed out many times the lack of transparency of disciplinary
procedure may harm the reputation of
judges and contribute to the public’s distrust in the judiciary. Despite
all the positive “formal” solutions, there is an unavoidable query of
substantive character, as regards the
body which decides on the disciplinary responsibility. I am of the opinion that on the disciplinary
responsibility the court should decide,
not the special bodies, even in the case when all the members are judges. The
situation regulated by Ukrainian law
is much worse. The decisive bodies are
not composed of judges.(see p. 17)
In a situation when the decision on the
disciplinary responsibility is taken by the court, the transparency of the
disciplinary procedure is guaranteed in better way (by the provisions of the
code of procedure in criminal cases)
than by establishing special procedures in the Law on the Statute of
Judges.
Art. 58 gives the right to appeal (but only to the judge of
the local or appellate courts) to High Council of Justice, which is not body consisting only of judges. The decision to go to court may be appealed
only on ground of procedural violation of the disciplinary proceedings. I am of
the opinion that this procedure is not in line with European standards. In any
case the judges should have the right to go to court, to make an appeal to the court.
I have no very
strong reservations about the catalogue
of sanctions. This catalogue, however,
should be analysed in the light of the Recommendation No.R (94)12of the
Committee of Ministers of the Council of Europe. “Where judges fail to carry out their duties...all
necessary measures which do not prejudice judicial independence should be
taken, for instance: a. Withdrawal of cases from the judge; b. moving the judge
to other judicial tasks within the court; c. economic sanction such as a
reduction in salary for a temporary period, d. suspension.
Appointed
judge may not be permanently removed
from office without valid reasons until mandatory retirement. Such reasons,
which should be defined in precise terms by the law, could apply in countries
where the judge is elected for a certain period, or may relate to incapacity to
perform judicial functions, commission of criminal offences or serious
infringements of disciplinary rules.”
II. Law “On the Judiciary”
.
12. Law
“On the Judiciary” regulates legal functioning of the courts system in Ukraine. As a fundamental base for the organisation of
judiciary there is a principle of separation of power. Art. 1 states that in
the “system of separation of power, the judicial power is exercised by
independent and impartial courts”. Art. 5 declares that Justice is administered
exclusively by courts. Art. 8 guarantees the autonomy of courts. The pillars of
the autonomy of courts are the same as those of the independence of judges
regulated by the law “on the status of Judges” , i.e. “courts shall not depend
on any illegitimate influence, pressure, or intrusion emerging from whatever
source. Courts administer justice on the basis of the Constitution and laws of Ukraine.”
The principle of separation of power in the domain of the judiciary is realised
by the institutional independence of the judicial branch and the personal
independence of judges. This regulation is fully in line with European
democratic standards.
The
above regulation clearly shows that
one law regulating both the
judiciary and status of judges
would be better solution. It will help
avoid so many repetitions.
13.
Art. 16 regulates the system of
general jurisdiction courts, which is a 4 level system: local courts, courts of
appeal, high specialised courts and the Supreme Court of Ukraine. One can not
arise doubts there are too many levels.
The
procedure of establishment of courts as described in Art. 18 seems to be rather complicated. Courts are established
and dissolved by the President of Ukraine upon a submission of the Minister of
Justice. The submission of the Minister of Justice shall be appended with
conclusions of the President of the Supreme Court of Ukraine, president of the
relevant high specialised courts, the Head of the State Judicial
Administration. The establishment of court involves 4 different bodies: the
President, Minister of Justice, President of the Supreme Court or relevant high
specialised court and Head of State Judicial Administration if they have been
provided upon request of the Minister of Justice. There is no role for the
Council of Judges. This procedure could be seen as a
kind of cooperation, a good example of
balance of power between judiciary and executive, but I am not sure this is
exactly the case.
The final part of the art. 18.1)” if
they have been provided upon request of the Minister of Justice,” is not very
clear. The decisive
role for establishing and dissolving
belongs to President on the recommendation of the Minister of Justice. One can
suppose that without the agreement expressed by the other bodies (belonging to
judiciary) it would be impossible for
the president to establish and dissolve court. But it is not very clear in the
light of this provisions. One has doubts whether a system, where
so many bodies are involved, could really guarantee a good balance of power, or would it instead create tensions between different bodies,
which would then have negative impact on
the whole procedure. This part should be
redrafted with the aim of proposing a simpler and clearer system of
cooperation between President or Ministry of Justice and the High Council of Justice in the process of
establishment of new courts.
14. I have some doubts as to Art. 34 p. 2.1) and
Art. 36 p. 2.2) “ to provide courts with
explanations in order to ensure the uniform application of legal norms in the
judicial practice.” The notion is not
very clear. What does it mean? what kind of explanations are regarded out of judicial process, out of system of
appeal? If this is clarification in more
abstractive way, the competence should be deleted because it is role of the Constitutional
Court.
15. The authors of the
new “Law on judiciary” are trying to create a system of organisation of
judiciary completely different from the
system existing till now in Ukraine as well as existing in majority of
other european countries. The new model has to be in opposition to the
organisation (and some deformations of the system) which has existed for
decades in Ukraine. The new regulation is proposed as
an result of distrust to the executive power, especially minister of Justice,
but also as distrust towards the presidents of the courts. For that reason the
law provides for the establishment of several new bodies with the intention of replacing “old bodies” in its role towards judiciary.
They are: the High Qualification Commission of Judges, vary enlarged system of
judicial self-government: meetings of
judges on different levels of the courts, conferences of judges, the Congress
of Judges of Ukraine, council of judges on different levels, Council of Judges
of Ukraine and High Council of Justice (art. 131 of the Constitution),
Disciplinary Commission of Judges and State Judicial Administration of
Ukraine. In effect the new regulations
are very complicated and unclear and
could make the whole system completely non efficient.
16. Qualifications Commissions of Judges.
Art.
46 states that “qualifications commissions shall be assigned with the task of
forming the corps of professional judges, who are able to administer justice in
qualified, good faith manner and impartially, by selecting and recommending
nominees for the post of professional judges and by determining the level of
professional skills of professional judges, as well as with the task of
consideration of issues relating to giving opinions as to dismissal of judge
from his/her post in cases determine by law.” The commissions shall operate on territorial as central level. I
have reservations as regards the composition of the bodies playing such an
important role in the process of forming the corps of professional bodies. Why should a member representing city of Kiev
council, and oblast council and Verkhovna Rada of the Autonomous Republic of
Crimea be among between the members of
independent body for qualification of judges? It is against the principle of
independence. Taking into account that the process of election of judges by
parliament is rather politised, this
stage, the preparation of candidatures, should be in hands of the judicial
bodies. The whole procedure of Qualification Commission of Judges is not
transparent. I am of the opinion that, as I expressed above in comments on the law on the status of
Judges, there is no reason for the existence of this body, and
therefore its competencies should be given to the High Council of Justice.
17. Disciplinary
Commission of Judges
I have strong reservations as regards the composition of the Disciplinary
Commission of Judges. In the light of Art. 58 out of 15 members only 9 are
judges, others are nominated by President of Ukraine, Verkhovna Rada, Minister
of Justice, Congress of Ukraine. This kind of body does not offer sufficient
guarantees for the independence of judges. As I wrote in my comments above, the
best solution would be to empower the
courts with competencies to decide on
the disciplinary responsibility of judges. Solutions proposed in art. 58 seems to be out of line with European standards. (see p. 11)
18.
There is no consensus in practice among the different states as to how the judiciary is to be
administered. Different models are in use in different countries. In some
countries the judiciary is administered by the executive, normally by the
Ministry of Justice, in others administered by the ministry and to some extent the judicial council (it seems
the model most it is popular in the new democracies in Central and Eastern
Europe), in others the judiciary fulfils
these functions itself, through special bodies (for example the Judicial
Council in Hungary). It is also a rule that all the states have vested some
administrative responsibilities in court presidents or councils. The budgetary
responsibility remains very much in the hands of the legislative and executive
branches. But what is of great importance is that an independent judiciary is possible under
each of these systems.
For that
reason international standards are not in consensus as regards the recomended form of administration. Some explicitly call
for the judiciary to be administered by an independent body representing
judges, but what is most common is that
all call for it to be organised in such
a way as not to compromise the independence of judges, but do not identify a
clearly preferable method, or allow for variety of models.
The final
decision belongs to individual
countries.
19. State Judicial Administration
The Ukrainian Law on the Judiciary
proposes the creation of a new body: State Judicial Administration, which, as is described in Art. 89 “shall be a
central body of the executive power which carries out organisational provision
of the operation of courts of general jurisdiction (except for the Supreme
Court of Ukraine and the high specialised courts), as well as other bodies and
institutions of the judiciary pursuant to this Law. The State Judicial
Administration of Ukraine shall be under control of the Council of Judges of
Ukraine”.
Personally
I am not against such a special body which could administer the courts in more
efficient way and better realized the
principle of separation of power.. The power of the SJA (Art. 90) is rather
wide but in my opinion the scope of competences can be accepted.
The regulations proposed in
Ukrainian law involves however many doubts and reservations.
One could supposed that the main
reason to create such a special body was
to replace the executive body by judiciary one in administration of courts. But reading these
articles this is not the case. The new body is described as an executive one.
The head of this body shall be appointed to and
dismissed from the post by the Cabinet of Minister of Ukraine upon submission of the Prime Minister of
Ukraine based on the recommendation of the Council of Judges of Ukraine. In the
light of the new Law I do not see any clear reason for establishment of this
body. It can be seen as a tendency to evolve into “new ministry
of justice”. This causes misgivings. It is not enough to justify its existence.
In
Ukrainian new law the
administration of courts still is in the hands of executive power. But the
wording of Art. 89.1 gives grounds for
new tensions between executive and judiciary declaring that the executive body,
as State Judicial Administration shall be under control of the Council of
Judges. The question arises, what are the instruments of this control? Is the
State Judicial Administration (its head)
also responsible to the Cabinet of ministers as an executive
body? In the light of Law the questions are not clearly answered.
Taking into consideration the
qualifications of different forms of administration of the courts, despite the
creation of a new body, the Ukrainian system
still should be classified as system with decisive role of executive
power in administered of the courts.
The
problem concerns the place of that body
in the state organization system. It should not be so that the main reason for establishing such
a body seems to be the replacement of the Ministry of Justice by another
executive body. Clear distinction must be made between the role
of ministry of justice, the Administration Body and the role of presidents of
the courts. Especially the role of the presidents of courts should not be
completely limited.
I recommend changing the chapter on
State Judicial Administration. The changes should be done reasonably, also
taking into account the experiences of
other countries. Not only separation but also balance is needed in the process
of administration of the courts.
I
would like also to recall here what has been written in the context of the case
of Hungary,
which established a model where the administration of courts is only in the
hands of judiciary itself (by the Council of Judiciary). ‘According to some critics, the operation of
the Council is rather bureaucratic, resulting in the increase of the
administrative burden of judges. Some argue that it is actually the Office of
the Council, composed of civil servants, which has the real power and not the
Council itself. Many of the employees of the Office used to work at the
competent department of the Ministry of Justice prior to the reform, and their
mentality still reflects the old times, when courts were clearly subordinated
to the bureaucracy of the Ministry.’
