Experts: Amendments to the Constitution provide grounds for realizing society’s aspirations


Kyiv, November 19, 2015. The main objective of Ukrainian judicial reform is to bring the justice system into line with international standards and ensure all necessary conditions for the court’s reasonable, transparent and fair decisions, stated experts in constitutional reform in sphere of justice during an open debate at Ukraine Crisis Media Center.

Experts emphasized that amendments to the Constitution in terms of justice are a necessary component of judicial reform. “Opportunities for legislative improvement of the judiciary system have been exhausted. Further movement of the country towards ensuring fair, impartial justice is constrained by the lack of constitutional changes because […] some relations in the field of justice are settled directly by the Constitution,” said Mykola Onishchuk, Rector of the National School of Judges of Ukraine. At the same time, according to Bohdan Lvov, Head of the Supreme Economic Court of Ukraine, it is wrong to assume that judicial reform is limited to Constitutional amendments. “Amending the Constitution is perhaps the most essential and significant part, but it is more strategic. It will not solve all questions immediately. It determines directions of development and eliminates obstacles in these areas.” According to Lvov, these problems include influence of political institutions – the Supreme Council and the President – on the judiciary; the issue of funding the courts, ensuring quality of judicial bodies, and the need for a greater role of advocacy and prosecutors.

The first stages of judicial reform have passed. In particular, in February 2015 the Law on Ensuring the right to a fair trial was adopted, which provides mechanisms for cleansing the judiciary, including the qualification assessment of all judges; introducing judicial dossiers containing the history of professional work; improving procedures for the selection of judges, increasing requirements for candidates; establishing mechanisms for disciplinary proceedings against judges and restoring the role of the Supreme Court of Ukraine as the highest judicial authority in the court system. In addition, there was a competitive selection and appointing members of HQCJ and the High Council of Justice.

The Constitutional Commission prepared complex Constitutional amendments. They affect all aspects of reforming justice and all its institutions and are by no means confined to the issue of transferring or re-certifying the judiciary.  Such allegations are nothing but populist slogans, experts stressed. “Even if we conventionally transfer the judiciary by 100% overnight, which is even theoretically impossible, then without changing the very system of governance, access, functioning and activity, this seemingly positive result will be quickly neutralized,” said Onishchuk.

The reform also provides for introducing a mechanism to ensure enforcement of judgments, as it currently does not work and this creates huge problems for those who won the case, even if their rights were completely restored. Among the proposals, which are still being discussed, are greater specialization of judges (within one court, judicial panels / chambers within one court or a specialized court), which would reduce miscarriages of justice in courts of first instance, which then have to be corrected by the Higher instance courts. In addition, Lvov said “it is necessary to implement mediation and arbitration procedures which will be more effective and cheaper than court appeals, but they need time to gain citizens’ trust.”

“The institute of prosecution is acquiring a new quality: it “desovietizes.” Prosecution’s functions are limited to the European Council parliamentary resolution requirements and Europe Committee of Ministers recommendations concerning public prosecution – only to the field of criminal justice,” said Serhiy Holovatyi, Founder of the Ukrainian Legal Foundation, a corresponding member of the National Academy of Sciences of Ukraine. Reforming the advocacy institute provides for establishing independent professional advocacy and introducing highly specialized training for lawyers. Candidates will have to meet a set of requirements and take a special examination to be able to work in a profession.

After the reform, the Constitutional Court will be separated from justice, and candidates for judges of the Constitutional Court should meet much higher qualification requirements. In addition, the CC will set up the Institute of individual complaints – in case “the ordinary jurisdiction court applied the law, and the plaintiff considers the law unconstitutional.” Thus, explained Holovatyi, processing of a complaint by this institute is “a preventive stage before contacting the ECHR.”

“Judicial reform also implies that courts will be established by law,” said Andriy Kozlov, Coordinator of the Support for Open and Democratic Reform Process in Ukraine project of the Democracy Reporting International organization. “The President for some time retains the power to establish them by his decree under the law, but the strategic goal is that courts should be established by law,” added Kozlov. This innovation was one of the Venice Commission recommendations, and it is “a normal sustainable European standard.” After the reorganization, said the expert, new judges will be appointed in most courts.

Judges, who were appointed for five-year periods, will work their term and then will be appointed to a permanent position through competition. Those, who already hold a permanent position during the reform, will be required to undergo evaluation. “The point is that we need to assess personal, social and professional competence of judges,” said Kozlov. Social competencies, for example, include the ethics and integrity of judicial conduct. There is also a regulation under which judges may not hold office if they cannot explain the origin of their property, and it takes into account a widely spread practice to relist property to relatives or other nominees.

Experts noted that after the reform the justice system will become more independent from political institutions – the Parliament and the President of Ukraine, which will positively affect the efficiency of the judiciary. At the same time, it is necessary to consider legislation so that “at this level of independence, the judiciary does not become a means of making money and serving political interests,” emphasized Kozlov, adding that for this the whole reform process “should be under steady, constant control of society.”

“There are reasons to expect that amendments to the Constitution will provide grounds for realizing society’s aspirations to change the situation in the justice system and return confidence in justice as a fundamental institution of human rights,” summed Onishchuk.