Judicial Reform: One Step Forward, Two Steps Back
The government has received an assessment of how the judicial reform undertaken complies with European standards. At its session from 15 – 16 October 2010 the Venice Commission adopted its Joint Opinions On the Law on the Judicial System and the Status of judges of Ukraine
The first conclusion which must be drawn from the results of this session is that it was a mistake to finally adopt the Law on the Judicial System and the Status of Judges without awaiting a prior assessment by the Venice Commission.
The Co-Rapporteurs from the Council of Europe Monitoring Committee back in June stressed the need to receive a Venice Commission Opinion before the final adoption by parliament of key draft laws, especially those designated as of priority for meeting Ukraine’s obligations before the Council of Europe.
The Venice Commission, as represented by its Secretary, Mr Market on 30 June, having received preliminary comments from members of the Commission regarding the Law on the Judicial System and the Status of Judges, containing serious comments regarding content, also emphatically enjoined the Ukrainian authorities to "allow more time for analysis and discussion of this draft law both for European experts, and in Ukraine, so as to be certain that the draft law really meets the aims declared in it – to ensure both independence and efficiency of the justice system". They stressed the need to not pass it as a law before the end of the parliamentary session.
The general theme of these statements was that speed in carrying out reform cannot be achieved at the expense of quality. All the more so when this concerns one of the key reforms needed to fulfil Ukraine’s obligations before the Council of Europe – reform of the justice system.
Unfortunately, they didn’t listen to these recommendations from European bodies. Various motives have been suggested. Some said they would submit it only after its adoption, claiming that the Venice Commission works very slowly and they didn’t have time. Other members of the government even managed to state that they didn’t see any point in submitting the draft law for the Commission’s opinion since "we are passing laws for our country, for people living here. We orient ourselves on world experience, including European, however some word from abroad must not be dogma for us".
However the main argument against receiving a preliminary opinion of the draft law was that in the process of its preparation virtually all comments of the Venice Commission within the framework of the current Constitution had been taken into consideration (although the artificial and unprofessional nature of such "taking into consideration" was and remains clear).
It is perhaps worth beginning our analysis of the Venice Commission’s Opinion, passed at its last session, from that stand. The Commission had indeed on a number of occasions carried out an assessment of draft laws on reforming the judicial system in Ukraine. Effectively a roadmap for the authors of the judicial reform should have been the Opinion of the Venice Commission passed in March 2010 regarding the draft Law on the Judicial System and the Status of Judges which had been submitted to parliament by the former President. Unfortunately it did not become such a roadmap.
In its October Opinion, the Venice Commission states that although many provisions have been improved in comparison with the previous draft law, "many of the remarks made by the Venice Commission in its earlier opinion are still relevant to the new Law" (Items 8, 124).
Moreover these remarks do not only concern those provisions which require amendments to the Constitution. For example, remarks were not taken into consideration regarding the need to remove provisions which could be seen as encroaching upon the independence of justices by extra-procedural influence on their examination of specific cases (Items 12, 37, 129.6, 129.10);
Nor were the recommendations that the State Judicial Administration and training of judges should belong to the judiciary fully taken into account (49, 108, 109, 128.3, 129.13, 129.25, 129.26).
The Commission also points out that its comments regarding Judicial Self-Government remain in force. "There is a risk that the declared objectives of judicial self-government and the declared functions of the bodies of judicial self-government may become a dead letter" (91-97).
One must thus conclude that statements about how the remarks of the Venice Commission were fully taken on board do not, to put it mildly, reflect the real situation.
However the largely critical comments were elicited not by these points of non-compliance, but specifically by the new features proposed and implemented by the law’s authors.
Most comment from the Venice Commission was aroused by the provisions which radically reduce the role of the Supreme Court and broaden the powers of the High Council of Justice with regard to appointing and dismissing judges, as well as regarding disciplinary proceedings against them given that the makeup of this body is not in keeping with international standards.
The Commission’s position regarding the reduction in the status of the Supreme Court is categorical. "It is hard to avoid the conclusion that there is a deliberate intention to reduce the power of the Supreme Court which goes far beyond the desire to create a more efficient judicial system. Conflict between the executive and the judiciary may be normal and even healthy but only where an atmosphere of mutual respect prevails. The absence of such respect creates a threat to the continued existence of a society based on the rule of law" (35)
Moreover, during the session there was talk of how the attitude demonstrated to the Supreme Court undercut all that was positive about the law on the judicial system and status of judges.
The European experts pointed out that the powers of the Supreme Court envisaged by procedural legislation effectively deprive it of the possibility of influencing court practice. "This is far from the idea of a supreme court generally interpreting the law in an authoritative way and thus paving the way for a uniform interpretation of the law by all courts, even before contradictions have arisen" (31, 125).
The Venice Commission recommends broadening the jurisdiction of the Supreme Court so that it complies with its constitutional status as the highest judicial body within the system of general jurisdiction courts. This status was unchanged in both versions of the Constitution – 1996 and 2004. This means giving it power to resolve conflict between the rulings of higher specialized courts and on issues of procedural law, as well as to itself judge on issues of admissibility of appeals against divergent applications of the law. Obviously the proposed collegiate form of work of the Supreme Court in examining each case needs change.
The conclusions are no less categorical regarding the provisions both of the Law on the Judicial System and the Status of Judges of Ukraine and the Law amending certain legislative acts of Ukraine in relation to the prevention of abuse of the right to appeal which extend the powers of the High Council of Justice.
The Venice Commission yet again pointed out that the procedure envisaged by the Constitution for the formation of the High Council of Justice does not meet international standards since it does not ensure a majority on the Council of judges appointed by judges themselves. The Commission stresses that in the absence of constitutional safeguards for a balanced makeup of the High Council of Justice, its powers should be reduced not expanded, being confined exclusively to those stipulated by the Constitution. This relates also to the powers set out in the Law on the Judicial System and the Status of Judges, although not in the Constitution, on appointing judges to administrative posts.
The Venice Commission also considers there to be fundamental problems with the system for appointing and dismissing judges despite some improvements. Besides comments concerning the role in this appointment of the Verkhovna Rada which cannot be fully removed without amendments to the Constitution, it expresses serious reservations regarding the transparency of the process for selecting candidates for office as judges, the procedure for disciplinary proceedings and dismissal. They point out the lack of objective criteria for promotion of judges. "This seems to turn promotions into purely political issues, to be decided exclusively by the Verkhovna Rada, an organ that is not fit for evaluating the "qualifications, integrity, ability and efficiency" of judges" (69).
It follows from the conclusions of the Venice Commission that despite certain positive moves, the law has not fully succeeded in resolving the problem of politicization and non-transparency of the process for appointing, electing and dismissing judges.
In view of the remarks cited of the Venice Commission, their main recommendation undoubtedly remains relevant, this being to "not restrict judicial reform to the level of legislation, but to carry out broad constitutional reform in order to lay the strong foundations for a contemporary and efficient judicial system in full compliance with European standards." (Opinion from 12-13 March, 2010).
The Venice Commission once again pointed out the need to make amendments to the Constitution. In order to bring the judicial system into line with European standards, the creation and dissolution of courts must not be carried out by the President but by a law;
The role of the Verkhovna Rada in electing and dismissing judges needs to be removed;
The makeup of the High Council of Justice needs to be changed; ensuring that the majority or at least a significant number of its members are judges chosen by judges;
Judge immunity must be guaranteed not by the Verkhovna Rada but by a truly independent judges’ body;
The probation term for the first appointment as judge, if this be really deemed necessary, should be relatively short, for example, two years.
There are therefore all grounds for speaking of the need to improve the constitutional provisions which define the organization of the judiciary and the exercising of justice in Ukraine within the framework of constitutional reform. Only in that way can Ukraine ensure compliance of judicial reform to European standards.
With regard to the Law amending certain legislative acts of Ukraine in relation to the prevention of abuse of the right to appeal which was passed by the Verkhovna Rada in May 2010, the Venice Commission pointed out in its opinion that it was in general unclear what prompted the need for such amendments. However, further analysis of this law by the Commission shows that it fully understood the purpose and direction. It is clear that the only thing that was incomprehensible to the European experts was how this law could bring Ukraine closer to European standards on issues of justice. It should be noted that the Venice Commission did not note one positive provision in the law.
Obviously one can interpret the conclusions of the Venice Commission in different ways however the overall assessment does note enable one to say that the reform fully complies with international standards in the area of justice and independence of the judiciary.
The main question at the present time is in fact whether and how the Venice Commission’s recommendations will be taken into consideration. In view of this one should point out that the Parliamentary Assembly of the Council of Europe in its Report on the Functioning of Democratic Institutions in Ukraine from 5 October 2010 "asks the authorities to ensure that the Law on the Judicial System and the Status of Judges and the Law on Amendments to Legislative Acts concerning prevention of abuse of the right to appeal take into account any recommendations, or concerns addressed, in the forthcoming Venice Commission opinions, by amending the Laws as required".
And lastly. In the final analysis I am not interested in whose personal interests influence the content and essence of reform of the judicial system. It is clear that such influence has already proven its adverse consequences for the process of preparation and implementation of reform. The quality and effectiveness of the legal system have remained where they were, while the foreign image of the country is worsened. Another important conclusion for Ukraine lies in the need to stop passing laws of dubious quality. It is necessary to carry out the recommendations of the Venice Commission and not create an illusion of doing so. It must finally be understood that the recommendations of the Commission are needed not by experts alone. They are extremely useful and important for us.
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