Amendments to the Constitution Regarding Judiciary: Effective Reload of the System or Reform Failure?

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Ukraine has the lowest in Europe and one of the lowest in the world rate of people’s trust in judicial system. According to Gallup World Poll, in 2013 only 16% of the surveyed Ukrainians trusted the court system. Вy the end of 2014 the trust level came down to 12%.

Via amending the Constitution, Ukraine gets a unique chance to reform judicial branch fundamentally. But is there a political will to use this chance?

 

The draft of the amendments to the Constitution of Ukraine on judiciary, which was developed by the Constitution Commission working group, bears the following risks, which are to be eliminated urgently: 

 

1. The infamous 4-tier system stays. 

Even though there is no mention of the first instance or appeal courts anymore, it is obvious they don’t just disappear from the court system. Both main text and the transitional provisions mention “Courts of cassation AND the Supreme Court”.

The experts of RPR support the idea of creation of two simple 3-tier structures, general and administrative courts. 

 

2. The political influence of the President on courts.

The competence of the President on the appointment of judges is not ceremonial and the wording of it hides the possibility of the transfer of judges to remain the power of the President. Also, no such competence is provided for to the High Council of Justice (the HCJ). 
Experts are sure that the Constitution should clearly stipulate that not only the submission made by the HCJ on the appointment of a judge is binding on the President, but that the HCJ should be given competence to  “decide on the transfer of a judge”. 

3. The political dependence of the HCJ on the President and the Parliament.

Although the proposed amendments carry a set of positive change as to the composition of the HCJ, the suggested edition still carries a risk of political dependence of the HCJ. 

Experts suggest model, which can ensure depolitization of the HCJ

  • 9 members are elected from among the active judges or resigned judges; 
  • 9 members are elected based on equal representation from advocates and human rights defenders; public prosecutors; scientists and law professors by the special Selection Panel. Thе Panel shall be formed by the Parliament and the President of Ukraine in equal parts from among persons having impeccable reputation and high respect in the society;
  • Chief Judge of the Supreme Court of Ukraine and the Chief Judge of the Supreme Administrative Court of Ukraine are members ex officio (but are elected by judges to their positions).

 

4. There is no way of renewal of the judicial system. 

Only 12% of Ukrainian citizens trust courts fully or partially. If these judges stay in the office, they will be the ones to elect majority of the HCJ which is responsible for the appointment and disciplining of the judges. This will at the very best conserve the current state of things. Moreover, the Transitional provisions mention that the new HCJ will be created “not later than 30 of April 2019”, which is by far too late. 

The reappointment of all the judges through a transparent procedure is necessary.

 

5. In the end, no transparent public discussion of the amendments was held.

This goes against the recommendations of the Venice Commission, which suggest the constitutional process must be transparent and inclusive, with special role of the civil society in it. The Constitutional Сommission does not include a single civil society expert on the judiciary, and civil society members don’t have access to the Commission to openly discuss the proposed provisions.

 

Civil society experts are strongly convinced that the amendments to the Constitution will ensure the effective reform of judicial branch of power only in case the abovementioned risks are eliminated. 

 

Deeper analysis and comparative chart of Constitution Commission working group draft and expert proposal.