Head of APU Legal Policy Department: Draft amendments to the Constitution seek to be systematic, comprehensive and reasonable

December 17, 2015.

Kyiv, December 17, 2015. In the current draft amendments to the Constitution, consensus has been reached on many issues, as evidenced by the positive opinion of the Venice Commission, said Kostyantyn Krasovskyi, Chief of the Head Department for Legal Policy at the Presidential Administration of Ukraine during a discussion “Amendments to the Constitution: regional vector” at Ukraine Crisis Media Center. “Now the project more or less takes into account the incorporated ideas for the project to be systematic, comprehensive and reasonable,” he said. According to Mykhailo Zhernakov, Expert at the “Reanimation package of reforms” civil initiative, updating the judiciary is the №1 issue of constitutional amendments on judicial reform. He is sure that the updating mechanism should be enshrined in the Constitution, however, it is best to seek consensus. That is, first lay the foundation for effective and democratic judicial renewal and provide all relevant legal mechanisms. “Ukraine has a unique situation, when government, parliament, the Presidential Administration and civil society have come to consensus on judicial reforms,” said Zhernakov. He added that together with the constitutional amendments in the second reading it is necessary to approve law drafts that will show what exactly is meant by the ideas laid down in the draft amendments to the Constitution.

Volodymyr Kravchuk, judge at the Lviv District Administrative Court, member of the Constitutional Commission, is convinced that updating the judiciary is not a constitutional problem because there is an updated algorithm that is the law that provides for holding competitions. “The draft constitution has no significant changes, it incorporates the same competitive order,” said Kravchuk. According to him, today, there are no obstacles to start the upgrade. Moreover, MPs may change these procedures at a legal level without waiting for Constitutional amendments. He said that, as of today, in Ukraine there are over 700 vacancies in courts of all levels that are ready for replacement. Zhernakov noted that some mechanisms, in particular those that provide grounds for dismissal of judges, need to be specified, as it will effectively upgrade the judiciary. For example, if a judge cannot prove the origin of their income. Experts from Zaporizhia also emphasized the need to create a system of judges’ re-evaluation. According to media lawyer Kateryna Kyrychenko, “we forgot about lustration, announced earlier this year, and the word” lustration “has just been talked round.”

In addition, the regions of Ukraine, including experts from Slovyansk, stressed the need to introduce so-called corruption preventers. For example, if judges are elected for life, it is necessary to conduct re-certification in order to analyze the judges’ previous work on the objectivity of their decisions. And also, it is important to register the right of every citizen to a jury trial in the Constitutional amendments. “This proposal is included and considered by the human rights group and will possibly affect not only serious crimes, but almost any crime,” said Andriy Kozlov, coordinator of “Democracy Reporting International” project “Support for open and democratic reform process in Ukraine”. Krasovskyi said that the current version of the draft emphasizes the role of juries. “People’s assessors” are removed; the court decides on the issue as part of the panel of judges, judge or jury. This lays the foundation for creating the possibility of strengthening juries,” he added.

Svitlana Rud, an expert from Slovyansk, stressed that the judicial reform should provide for preventing advocacy monopolies. Oleksandr Vodyannikov, National Legal Advisor to the OSCE Project Coordinator in Ukraine, international monitor at the Constitutional Commission working group on justice, said that the Venice Commission also reacted with restraint to the introduction of such monopolies. “And the version that was finally approved by the Constitutional Commission is balanced and, to some extent, a compromise. On the one hand, it ensures quality, on the other hand, it will not be an obstacle to access to justice,” said Vodyannikov.

Another important aspect of Constitutional amendments in the matter of judicial reform in the regional vector is public role in the appointment of judges. Experts from Zaporizhzhya suggested conducting municipal reform and expanding the powers of local governments. Then, the local community can discuss candidacies, which are proposed for the post of judges, and submit a representation to the High Council of Justice. Zhernakov agreed that local community should have a key role in selecting judges, “not to decide who is the best, but have the right of veto, to be able to provide information, if any and give a reason to doubt the integrity of the judges that this candidate for the office could not become a judge. ” Krasovskyi said that some tools of influence already exist, and this opportunity will be improved. “But we should not forget that a judge should be appointed via public institutions and the public should give its opinion on a particular candidate. First of all, for his integrity and the possibility to hold this post so that corruption does not corrode the state apparatus,” said Krasovskyi.

Experts consider that the Constitutional amendments should incorporate electronic proceedings and independence of the judiciary, in particular, the issue of financing courts. Krasovskyi said that the constitutional amendments lay the foundations for determining parameters, by which judges can receive proper wages. The level of judicial remuneration is determined by legislation on the judiciary. “It is also a tool of judicial independence. The budget is consistent with the executive branch of government, so a certain financial independence will be formed during consultations between the judicial and executive branches,” says Mr. Krasovskyi.

 

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