On June 2, 2016, the Verkhovna Rada adopted the amendments to the Constitution on justice simultaneously with the new version of the law “On the Judiciary and the Status of Judges.” These amendments give a chance to launch a comprehensive judicial reform, however, there is a risk that the reboot of the judiciary and real independence of judges might suffer the same fate as ‘the prosecution reform.’

The RPR has already called on the Parliament to adopt a new version of the law “On the Judiciary and the Status of Judges” (No. 4734) provided that the legislative procedure is observed and the experts’ comments are taken into account. Unfortunately, this has not been done. Two days after the fundamental law was submitted to the parliament, it was adopted as a basis and as a whole with the amendments presented in an oral form. This has not allowed to analyze the provisions of the law properly and prepare a well-balanced version.

The RPR has already drawn attention to the drawbacks of the draft law which put the success of the reform in jeopardy. Unfortunately, only a few of them have been corrected while the specialized committee considered the draft.

In the opinion of the RPR experts, progressive ideas enshrined in the amendments to the Constitution and the law “On the Judiciary and the Status of Judges” can be downplayed, while the very reform might suffer the same fate as ‘the prosecution reform’ due to the following drawbacks:

• the public might not get any effective levers of influence on the selection and assessment of judges: opinion of the newly established Public Integrity Council will not be decisive for the qualification assessment of judges’ integrity, nor will it have any effect on the competition to fill the offices in local courts;
• although the law does formalize establishment of the High Anticorruption Court as the court of first instance, it postpones it for an indefinite term; the status of this court does not provide additional safeguards of independence (special selection procedure, higher wages, its own budget, etc.);
• there is no special mechanism for selecting judges of the new Supreme Court which would guarantee that such selection is impartial and trusted by the public. The High Qualification Commission of Judges and the High Council of Justice do not include a single representative of the public; at the same time, the High Qualification Commission of Judges shall include another two members appointed by the Verkhovna Rada of Ukraine Ombudsman and the Head of the State Judicial Administration subject to lustration;
• the law allows the heads and the deputy heads of courts appointed during the presidency of Yanukovych, who are used to implementing political orders, to keep their offices for another six or seven years. Despite the Constitution, the President will sign their certificates conferred either by him or his proxy. There is a risk that an old system of influence might be preserved, while the judges might be manipulated through the heads of courts and the ‘new’ judges appointed under the influence of the political forces.

If these drawbacks are not corrected, the negative situation in the judicial system will not change – it will only seem that “public demands have been considered”, “new courts have been established”, and “the judiciary has been rebooted.” 

Experts of the Reanimation Package of Reforms have repeatedly stressed that the amendments to the Constitution can give a boost to a full-fledged judicial reform only supported with a package of implementation laws describing in detail the mechanism of implementing the Constitutional amendments.

Unfortunately, the experts of the Judicial Group of the RPR have to conclude that the new version of the law “On the Judiciary and the Status of Judges” is far from perfect, while there is a lack of laws necessary for the full-fledged judicial reform. Thus, the issue of proper legislative support of the judicial reform is still open.

Therefore, we call on the MPs within three months – until the amendments to the Constitution on justice come into force:

• to adopt the amendments to the law “On the Judiciary and the Status of Judges” to correct the above-mentioned drawbacks, in particular, to ensure an effective reboot of the judiciary and guarantee a transparent and impartial selection of judges to the new courts with the public having a decisive vote on the judges’ integrity;

• to adopt the special law on the High Anticorruption Court to launch this court as soon and possible and to ensure independence of its judges;

• to adopt the amendments to the law “On the High Council of Justice”; otherwise no judge could be brought to disciplinary responsibility, including dismissal, once the new law “On the Judiciary and the Status of Judges” comes into force;
• to have the public discuss the candidates to be appointed as judges for an indefinite term who are being considered by the Verkhovna Rada and not to appoint for an indefinite term the judges whose professional integrity is doubted by the public;

• not to delay appointment of the member of the High Council of Justice recommended by the Verkhovna Rada; to hold a public discussion of the candidates, and to appoint only a candidate with impeccable reputation and trusted by the public.

Also, other implementation laws should be adopted as soon as possible in order to:

• re-launch the prosecution reform;
• allow the attorneys choose attorneys’ associations at their own discretion so as to de-monopolize attorneys’ self-government;
• significantly limit the category of cases where only an attorney can act as a representative, which should help to reduce the risk of establishment of attorneys’ monopoly for representation in court;
• regulate the issues of legal education and access to the legal profession in line with the European standards;
• determine the procedure of competitive selection of the Prosecutor General and the judges of the Constitutional Court, and change the procedure of consideration of the constitutional complaints;
• introduce an effective model of the trial jury in criminal cases and introduce this institute in commercial cases.

We would like to stress that the outcome of the long-awaited judicial reform, the status of law supremacy and observance of human rights in Ukraine, and preservation of achievements of other reforms depend on the implementation of these measures. 

Should they not be implemented, the negative practices in the judicial system will be preserved, while the judiciary will remain dependent on the political forces.

By taking these steps and passing relevant decisions, representatives of the political authorities will prove that they are truly willing to implement the judicial reform and ensure the Rule of Law in Ukraine.