THE LAW OF UKRAINE ON THE RESTORATION OF TRUST IN THE JUDICIARY IN UKRAINE: EUROPEAN STANDARDS AND IMPLEMENTATION CHALLENGES - Legal Opinion
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Project on Strengthening the independence,
efficiency and professionalism of the judiciary
in Ukraine
THE LAW OF UKRAINE ON THE
RESTORATION OF TRUST IN THE
JUDICIARY IN UKRAINE:
EUROPEAN STANDARDS AND
IMPLEMENTATION CHALLENGES
Legal Opinion
May 2014І. The overview ....................................................................................................................................3
ІІ. Recommendation of Council of Europe experts ..............................................................................4
Recommendations that have been addressed ...................................................................................5
Recommendations that have not been addressed .............................................................................6
Other provisions that can matter ......................................................................................................9
ІІІ. Transitional provisions ...................................................................................................................9
Introduced amendments ...................................................................................................................9
Challenges of implementation ........................................................................................................13
IV. Conclusions ..................................................................................................................................16
2Legal opinion has been developed by Ukrainian experts Roman Kuybida (Center for
Political and Legal Reforms) and Oksana Syroyid (Ukrainian Legal Foundation)
upon the request of the Council of Europe Project on Strengthening the
independence, efficiency and professionalism of the judiciary in Ukraine.
І. The overview
1. On April 8, 2014 Verkhovna Rada of Ukraine adopted the Law on the
Restoration of Trust in the Judiciary in Ukraine (“the Law”). The Law entered
into force on April 11, 2014.
2. With regard to its subject of regulation the Law shall be considered as consisting
of two parts – the body of the Law and transitional provisions. As a rule,
transitional provisions have supplementary role aiming at facilitation of
effective implementation of the legislation. Although the subject of regulation of
transitional provisions of this particular Law belongs to the bodies of other law,
the transitional provisions themselves play an independent role.
While the body of the Law relates to the restoration of trust in the judiciary by
ensuring accountability of judges, who demonstrated ungracious violations of
human rights under the rule of President Yanukovych, the transitional provisions
of the Law aim at prevention of further violations.
3. To ensure accountability of judges the Law provided for the establishment of the
Special Ad Hoc Commission on the Screening of Judges (“Special Ad Hoc
Commission”). According to the legislator the screening shall be applied to the
judges, who adopted the decisions violating human rights during the
EuroMaidan protests in November 2013 – February 2014; the decisions
depriving the people‟s deputies of their mandates legally enforced; the decisions
on the admission of voting results in some voting districts during last
parliamentary elections; as well as to the judges who considered cases or passed
decisions breaching the Convention for Protection of Human Rights and
Fundamental Freedoms as stated by the European Court of Human Rights in its
judgments.
According to the Law one third of the Special Ad Hoc Commission members
shall constitute the retired judges elected by the Plenum of the Supreme Court of
Ukraine; other members shall be civil society representatives with law degree
appointed by the Government Commissioner for Anti-Corruption Policy and
Verkhovna Rada of Ukraine.
Special Ad Hoc Commission will conduct investigation and submit its opinions
for consideration of the High Council of Justice, a constitutional body
authorized to recommend to the President of Ukraine or Verkhovna Rada of
3Ukraine the dismissal of judges from their offices based on the breaches of
oath.
4. The major accomplishment of the Law, provided in particular by transitional
provisions, are the efforts to destroy administrative subordination of judges to
the court presidents, and the court presidents to the political authorities
(President of Ukraine and Verkhovna Rada of Ukraine) that also acted via High
Council of Justice and High Qualification Commission of Judges of Ukraine,
composed by them directly or indirectly.
Upon the Law came into effect/As soon as the Law has come into effect, all
presidents of courts and their deputies as well as secretaries of court chambers
were dismissed from their offices. From now on new court presidents shall be
elected to theirs positions for the term of one year by a secret ballot from among
the judges of the corresponding court. The Law allowed short office term for
administrative position – one year only (previously it was 5 years), and one
cannot be elected to administrative position more than two times consecutively.
The Law did not provide for any restrictions for court presidents, their deputies,
and secretaries of court chambers to regain their positions.
5. At the same time such a restriction concerned the members of the High Council
of Justice and High Qualification Commission of Judges of Ukraine. The Law
terminated their offices and prohibited the membership in High Council of
Justice and High Qualification Commission of Judges of Ukraine to persons
who were members of the respective bodies before the Law became effective.
The composition of the High Council of Justice and High Qualification
Commission of Judges of Ukraine shall be re-established. The majority of
members in High Qualification Commission of Judges of Ukraine shall be
elected by the Congress of Judges of Ukraine convened according to new rules.
6. Despite the accomplishments of the Law some provisions require improvements
in light of European standards and legislative technic, as well as considering
initial experience of its application.
ІІ. Recommendation of Council of Europe experts
7. Considering its importance as well as prospective social and political impact the
draft Law on the Restoration of Trust in the Judiciary in Ukraine drew particular
attention both from the Ukrainian civil society and European institutions. While
the draft law was under improvement on March 24, 2014 the experts of the
Council of Europe Human Rights Directorate in the framework of the Council of
Europe Project on strengthening the independence, efficiency and
professionalism of the judiciary in Ukraine provided an Opinion on the
4correspondence of the draft law to the European standards and practices (“the
Opinion”).
On March 30, 2014 before the second reading of the draft law in the Committee
on the Rule of Law and Judiciary of Verkhovna Rada of Ukraine the experts
provided Appendix Opinion to the consolidated draft Law on the Restoration of
Trust in the Judiciary in Ukraine.
During the daft law consideration by the Committee a number of
recommendations of the Council of Europe experts were accepted while some of
them did not get sufficient support. Verkhovna Rada of Ukraine adopted the Law
as it was proposed by the Committee.
Recommendations that have been addressed
8. Following the recommendations expressed by the Council of Europe experts, the
Law on the Restoration of Trust in the Judiciary in Ukraine gained the provisions
that, in particular:
a. establish requirements to the appeal form that has to be submitted by the
persons or legal entities to initiate a screening of a judge as well as
admissibility conditions for such appeals (Article (2)(2-5));
b. provide for procedural guarantees for a judge subject to the screening: a
right to be present directly and/or through his/her representative at the
session of the Special Ad Hoc Commission, provide oral and written
explanations, as well as any evidence for his/her defence; to study the
screening application and attached materials (Article (6)(5));
c. require that the opinion of the Special Ad Hoc Commission shall be
motivated (Article (7)(1));
d. provide that failure of the High Council of Justice to meet three month
timeline to consider the opinion of the Special Ad Hoc Commission does
not constitute grounds to stop the screening procedures of a judge
(Article (7)(2)).
9. Verkhovna Rada of Ukraine addressing the Opinion of the Council of Europe
experts has also renounced the following:
a. the right of the High Council of Justice to initiate the screening for the
Special Ad Hoc Commission (see Article (3)(1)(8)).
b. the authority of the member of the Special Ad Hoc Commission to initiate
procedural actions during the screening (the decisions to request
5information and summon evidences shall be taken by the Special Ad Hoc
Commission and not its separate member – see Article 6).
Recommendations that have not been addressed
10. The Council of Europe experts suggested to stipulate clearly in the Law the
scope of „breach of oath‟ notion/definition or to make a respective reference to
the Article 32 of the Law on the High Council of Justice (Paras 40 and 51 of the
Opinion). The recommendation is not reflected in the Law on the Restoration of
Trust in the Judiciary in Ukraine.
We suggest that provisions of the Law on the Restoration of Trust in the
Judiciary in Ukraine have no grounds to interpret the breach of oath broader
than it is stipulated in the Article 32 of the Law on the High Council of Justice.
Taking into account that the High Council of Justice will make final decision to
recommend judge dismissal from the office based on the breach of oath, it will
be governed by the grounds stated in the Law on the High Council of Justice.
Therefore, the fact that this particular recommendation was not addressed shall
not negatively impact implementation of the Law.
11. The Council of Europe experts suggested to provide for the wider scale of
sanctions to ensure the principle of proportionality (Paras 40, 39, 62 of the
Opinion) – due to the diversity of judicial misconducts the respective sanctions
shall correspond the gravity of particular misconduct.
Article (7)(3) of the Law on the Restoration of Trust in the Judiciary in Ukraine
provides that a judge can be not only dismissed from the office but also
disciplined if no evidences of the breach of oath were found and the grounds for
the disciplining were identified. The experts have considered it as possibility to
apply the principle of proportionality (Para 62 of the Opinion). However,
currently the only disciplining sanction is a reprimand (Article 88 of the Law on
the Judiciary and the Status of Judges). European Court of Human Rights
emphasized the lack of scale for disciplining sanctions in order to ensure the
principle of proportionality (see Oleksandr Volkov v. Ukraine, ECHR Decision,
Paras 182, 183).
Therefore, further efforts shall be taken to insist on ensuring the principle of
proportionality and wider scope of disciplining sanctions (respective
amendments to the Article 88 of the Law on the Judiciary and the Status of
Judges).
12. The Council of Europe experts expressed their concerns as for the composition
of the Special Ad Hoc Commission and suggested to improve and clarify
6qualification requirements for the members of the Commission that have to be
appointed by the Government Commissioner for Anti-Corruption Policy and the
Verkhovna Rada of Ukraine, in particular, to provide for the requirements
regarding political neutrality, as well as to establish minimum requirements for
candidates‟ qualifications (e.g., by making reference to standing in their
professions, or a prescribed period of professional experience) (Paras 40 and 56
of the Opinion).
Although, formal requirements are not reflected in the Law they still can be
ensured in practice. The list of candidates from civil society and their resume are
currently available online:
a. the list:
https://docs.google.com/spreadsheet/ccc?key=0AtEKLQIeWOdcdGRO
V01VeDk0MUpkd0pwUjFtcktMOHc&usp=sharing#gid=0;
b. resume:
https://drive.google.com/folderview?id=0B9EKLQIeWOdcQlhvVFltVz
hIc2M&usp=drive_web.
However, specific preferences (regarding political neutrality, professional
experience e.t.c) shall be provided to justify the results of the selection
procedure.
At the same time we would like to note the following legal issues related to the
establishment of the Special Ad Hoc Commission:
a) first of all, the fact that the Law authorized Verkhovna Rada of Ukraine
to appoint five members of the Commission undermines its
constitutionality. The Constitutional Court of Ukraine reiterated that the
authority of Verkhovna Rada of Ukraine is limited by the Constitution
and cannot be expanded by the law.
b) secondly, the Plenum of the Supreme Court of Ukraine, authorized to
appoint five members, does not represent the judiciary, and is only one
form of activity of the Supreme Court of Ukraine. It would be more
appropriate if such appointments derive from the Congress of Judges of
Ukraine or the Council of Judges of Ukraine.
13. The Council of Europe experts suggested excluding from the jurisdiction of the
Special Ad Hoc Commission the pending cases. The recommendation was not
taken into account by Vrkhovna Rada of Ukraine considering that some cases
can be under proceeding in higher courts (for example cases on banning of
peaceful assemblies). This very fact shall not be an obstacle for the
accountability of judges whose decisions were unlawful.
7At the same time, Article (6)(2) of the Law enshrined the provisions, which
should prevent interference into the administration of justice:
“The Special Ad Hoc Commission may request copies of materials of completed
court cases from a respective court or law-enforcement agency, see materials of
pending court cases, make copies, obtain explanations from judges who made the
decisions and judges who took administrative positions in the court where the judge
worked at the time s/he made the decision subject to the Special Ad Hoc
Commission’s consideration, file respective requests, study personal files of judges
subject to screening.
The Special Ad Hoc Commission may not request original documents of pending
court cases.
If a case is re-tried or referred to another judge, and the judicial screening is
focused on actions of a judge who had been responsible for the given case, the
Special Ad Hoc Commission may request copies of the case materials where this
judge subject to screening was involved.”
14. Verkhovna Rada of Ukraine did not address the recommendations of the
Council of Europe to remove the provision allowing the screening of judges
whose rulings were the grounds for the European Court of Human Rights to find
a violation by Ukraine of the European Convention of Human Rights (whereas
there are no any specific time period for screening of the respective decisions;
besides this provision does not correspond to the mandate of the Special Ad Hoc
Commission to address abuses and arbitrariness of judicial decisions taken at the
time of and related to the EuroMaidan” events) (Para 48 of the Opinion).
The legislator has put this provision as a separate part of the Article (3) of the
Law:
«The judges who singlehandedly or within a judicial board considered cases or
passed decisions breaching the Convention for Protection of Human Rights and
Fundamental Freedoms as stated by the European Court of Human Rights in its
judgments shall also be subject to screening».
Most probably, the recommendations of the Council of Europe experts were not
addressed because people deputies are convinced that judges in the particular
cases conducted deliberate abuse under political pressure, as it happened for
example in the cases of Yuriy Lutsenko and Yulia Tymoshenko. Moreover, the
legislator did not limit the mandate of the Special Ad Hoc Commission to the
screening of the cases related to the EuroMaidan protests.
15. The Law does not reflect the experts‟ ommendations to specify what will happen
to the pending cases that are not resolved until the Special Ad Hoc
Commission‟s mandate is terminated; it would be appropriate to transfer
pending cases to the respective authorities (the High Qualification Commission
of Judges of Ukraine or the High Council of Justice) (Para 45 of the Opinion).
According to the authors of the Law, there should be no such cases, whereas the
appeals have to be submitted to the Special Ad Hoc Commission within first
8half of the year of its mandate, and the second half of the year shall be devoted
only to the consideration of appeals. However, the issue mentioned by the
Council of Europe experts can be addressed in the rules of procedure of the
Special Ad Hoc Commission.
16. The legislator also did not support the recommendations to regulate the disposal
of cases which are already pending before the High Qualification Commission
of Judges of Ukraine or the High Council of Justice and which fall within the
scope of the present draft law (Para 45 of the Opinion).
The cases which are already pending before the High Qualification Commission
of Judges of Ukraine or the High Council of Justice and which fall within the
scope of the present draft law presumably have to be completed by the
respective bodies, whereas the legislation does not provide for any transfer of
the cases under proceeding from these to other bodies.
17. There were not taken into account the recommendations to guarantee the right to
a fair public hearing (and not only to hearings at which the media may be
present); to ensure confidentiality at the initial steps of investigation to prevent
possible public prejudice (Para 54 of the Opinion).
Considering the importance of the above-mentioned requirements for the
impartial trial of the cases and public confidence in the judiciary they have to be
regulated in the rules of procedure of the Special Ad Hoc Commission.
Other provisions that can matter
18. Article (1) of the Law on the Restoration of Trust in the Judiciary in Ukraine has
provided for more correct purpose of the judicial screening. In particular, it is
stated that the screening shall be conducted to clarify the facts proving the
breaches of oath by judges and grounds for bringing judges to disciplinary or
criminal liability and not to dismiss the judges from the offices based on the
breaches of oath (as it was in the draft law passed in the first reading).
ІІІ. Transitional provisions
Introduced amendments
19. The Law terminates the positions of the court presidents of the courts of general
jurisdiction (excluding the Supreme Court of Ukraine), their deputies, and
secretaries of court chambers. It shall be considered as an element of lustration as
limitation of access to state position due to the relation to the system of
government that has lost its support and trust of society instead of due to the
9personal accountability as a result of misconduct. Termination of administrative
position does not result in termination of the office of a judge.
Considering the termination of judicial administrative position the Council of
Europe experts observed that “the most crucial issue may be the assignment of
cases to certain judges and the assignment of judges to certain chambers or
panels. If this is the real concern, alternative mechanisms to guarantee objectivity
could also be implemented. For example, automated case allocation systems
would reduce any risk of undue influence on the part of the president of the court
(as would the introduction of disciplinary offences for seeking to alter or
influence allocation of cases)” (Pare 65 of the Opinion).
In this regard we would like to note that in 2010 the law established automated
case allocation systems for the judiciary, and specialization of judges has to be
confirmed by the votes of the judges of the respective court. Therefore, officially
the court president does not influence the process. However, the court presidents
practiced the interference into the case allocation process. For example, if the
case of particular interest for the court president was allocated to the judge that
refused to pass the decision suggested, the court president could offer the judge a
sick leave in order to have the grounds for case reallocation. Similarly,
specialization of judges was voted upon recommendations of the court president,
usually without any preliminary discussion.
The amendments to the Article (20) of the Law on the Judiciary and the Status
of Judges provided for more democratic election to administrative position in
the courts. The court president and his deputies shall be elected to theirs
positions for the term of one year by a secret ballot from among the judges of
the corresponding court (previously appointment to administrative position fell
within the authority of the High Council of Justice, and for the short period of
time within the authority of Verkhovna Rada of Ukraine that did not have time
to exercise it).
The judges of the court can terminate the administrative position of a judge by a
secret ballot, by a majority of at least two thirds of the total number of judges
working in the corresponding court.
The secretaries of court chambers shall be elected to and dismissed from their
positions by the decision of the meeting of judges of the corresponding court
chamber by a secret ballot with the majority of votes of judges of respective
chamber.
20. The amendments to the Law on the High Council of Justice stated that
membership in the High Council of Justice cannot be granted to persons who
were members of the High Qualification Commission of Judges of Ukraine before
the Law of Ukraine "On Restoring Confidence in the Judicial Power of Ukraine"
became effective, except those who are the members of the High Council of
10Justice ex officio, as well as persons holding administrative positions in courts
except ex officio members.
Similarly, the amendments to the Law on the Judiciary and the Status of Judges
restricted the membership in the High Qualification Commission of Judges of
Ukraine for persons who were the members of the High Qualification
Commission of Judges of Ukraine or High Council of Justice until the Law of
Ukraine on Restoring Confidence in the Judicial Power in Ukraine became
effective.
Considering the termination of the office for the members of the High Council of
Justice or High Qualification Commission of Judges of Ukraine and banning the
return to the office for the persons who sit as members before the Council of
Europe experts noted that “it is not appropriate simply to indicate that former
members of the High Qualification Commission of Judges of Ukraine and former
members of the High Council of Justice are ineligible to sit again as members.
This places all current members under a collective presumption that all have
discharged existing functions inappropriately. This should be restricted to
exclusion of members in respect of whom criminal or disciplinary liability has
been established.” (Para 66 of the Opinion).
As it has been already mentioned such a decision of Verkhovna Rada of Ukraine
is an instrument of lustration and not of personal accountability. There were no
disciplinary or criminal charges against the members of the above-mentioned
bodies. However, there were numerous messages regarding their abuses. Some of
the abuses were stated by the European Court of Human Rights in the case
Oleksandr Volkov v. Ukraine. Therefore, although the solution of Verkhovna
Rada of Ukraine is extraordinary, it seems to be acceptable considering the
circumstances, caused by the activity of these bodies.
The amendments to the Law on the High Council of Justice decreased the upper
age limit for the candidate for the post of a member of the High Council of
Justice to sixty-four years. This amending aims in preventing appointment of
persons whose office term will last for less than one year.
21. The Law terminated the mandates for the delegates of the Congress of Judges
and Conferences of Judges elected under the rules that functioned before this
Law became effective. It stated that the judges of the Constitutional Court of
Ukraine and members of the High Council of Justice appointed by the Congress
of Judges of Ukraine are only allowed to take the oath if they were appointed by
the Congress of Judges of Ukraine, the delegates of which were elected
according to new rules.
This rule has been established for the case if before the entry of the Law into
force the Congress of Judges of Ukraine would be convened according to old
rules that allowed former political rule to control all of the decisions of such
11Congress. The attempts to convene the Congress in order to elect the judges of
the Constitutional Court of Ukraine were made when the draft law was under
development, and it was disrupted due to the civil society protests.
22. Moreover, substantial changes were introduced to the Law on the Judiciary and
the Status of Judges with regard to the judicial self-governance (amendments to
the Articles (115), (116), (122), (125), (127)).
It is favourable that the Congress of Judges of Ukraine and the Council of
Judges of Ukraine will be formed ensuring proportional representation of
judges. It was previously noted by the Venice Commission that the principle of
equal representation of judges of different jurisdiction in the bodies of judicial
self-governance cased disproportional sitting in the bodies when 6 thousands
judges representing civil and criminal jurisdiction were represented by one-third
of mandates while two-thirds of mandates belonged to the representatives of 2
thousands of judges of commercial and administrative jurisdiction.
According to the Law the 1 delegate will represent 20 judges at the Congress of
Judges of Ukraine (the Congress will constitute of 400 delegates instead of 96 as
it used to be).
The Council of Judges of Ukraine will constitute of 40 members (instead of 11)
and includes:
twenty judges delegated by the local general courts;
three judges delegated by the local administrative courts;
three judges delegated by the local commercial courts;
seven judges delegated by the courts of appeal for civil and criminal
cases, as well as administrative offense cases;
two judges delegated by the administrative courts of appeal;
one judge delegated by the commercial courts of appeal;
one judge from high specialized courts and the Supreme Court of
Ukraine each.
Such a composition of the Council of Judges of Ukraine is provided to ensure
proportional representation of the judges of the courts of different instances and
jurisdiction.
Proposals as for the candidacies to the Council of Judges of Ukraine shall be
submitted by judges who participate in the Congress of Judges of Ukraine.
Judges holding administrative positions in courts cannot be elected to the
Council of Judges of Ukraine";
It is important that court presidents and their deputies cannot be delegated to the
Congress of Judges of Ukraine and Council of Judges of Ukraine. While
12previously the bodies of judicial self-governance were composed predominantly
of the court administrators, the bodies of judicial self-governance did not
represent and protect the interests of the judiciary but the interest of court
administration. Considering the very fact as well as the procedure of
appointment to administrative positions preceding the Law, the bodies of
judicial self-governance were in practice one of the institute of political
influence on the judiciary.
23. Amendments to the Article (188-32) of the Code of Ukraine on Administrative
Offences established the same level of responsibility for the failure to implement
legitimate demands of the Special Ad Hoc Commission with regard to provision
of information as for the failure to implement legitimate demands of the High
Council of Justice. The provision aims at ensuring access of the Special Ad Hoc
Commission to the information necessary for the investigation.
24. Amendments to the Article (171-1) Code of Ukraine on Administrative Court
Procedure regulated that allocation of cases against President of Ukraine;
Verkhovna Rada of Ukraine, High Council of Justice and High Qualification
Commission of Judges of Ukraine among the judges of the High Administrative
Court of Ukraine shall be implemented without accounting for the specialization
of judges. It has to be noted that previously those cases were considered by the
High Administrative Court Chamber composed particularly of the judges loyal
to the political authorities. Considering the decisions, passed by the judges of the
Chamber, the judges will be subject to screening according to the Law on the
Restoration of Trust in the Judiciary in Ukraine. Therefore, the amendments
were justified by the need to guarantee impartiality in allocation of cases as well
as to prevent political influence on judges.
Moreover, according to the Law the High Administrative Court has dained an
authority not only to call unlawful the decisions of the President of Ukraine,
Verkhovna Rada of Ukraine, High Council of Justice and High Qualification
Commission of Judges of Ukraine but also to force them to act. For example, to
resume on the judge position a person that was illegally dismissed. European
Court of Human Rights has noted the lack of the respective authority of the High
Administrative Court in its case Oleksandr Volkov v. Ukraine. Therefore, the
legislator provided High Administrative Court with the instrument of effective
remedies.
Challenges of implementation
25. After the Law on the Restoration of Trust in the Judiciary in Ukraine came into
effect in many courts the judges elected to the position of court presidents the
persons who held the positions before and were imposed on those positions by the
former political rule. According to mass media relevant technics were applied to
13make it possible – corruption, destroying voting ballots, pressure on judges. It
was also the case that in numerous courts there were no alternative candidates –
the judges were afraid of negative consequences if they were overcome by the
previous court presidents. The scenario to re-elect same persons to the positions
of court presidents in High Courts was disrupted by civil society.
One more reason for such a reaction lies in the diverted perception of
administrative positions by majority of judges; they consider administrative
position as transition link in a chain of political influence and not as
accountability before the colleagues and opportunity to enhance their interests
and independence. This perception distracts from administrative positions a lot of
reputable judges who enjoy the respect from their colleagues.
Time and successful implementation of new approach is needed to overcome the
stereotypes. We suggest that legal or practical, at least temporary banning the
right to be elected to administrative position for the former court presidents and
their deputies could facilitate the development of new perception and culture.
26. Terminating the offices of members of High Qualification Commission of Judges
of Ukraine the legislator allowed some legal collisions. According to the Article
(93-1)(2) of the Law on the Judiciary and the Status of Judges that was not
amended, the decision on the termination of the office of the member of High
Qualification Commission of Judges of Ukraine shall be adopted by the High
Qualification Commission of Judges of Ukraine. Referring to this provision High
Qualification Commission of Judges of Ukraine addressed the people deputies
and noted that to terminate the offices of its members the decision of the
Commission is needed. At the same time, the last news item has been published
on the web-site of the Commission on April 10, 2014. It looks like the
Commission has terminated its activity. Nonetheless, legal collision has to be
addressed.
27. The vulnerable approach of the Law is that the legislator not only did not
provide for simplification of judicial self-governance, retaining the conferences
and councils of specialized courts, but even more complicated it. In order to
elect the delegates to the Congress of Judges of Ukraine the legislator
established the conferences of judges of general and specialized courts on
regional level. At the same time the legislator did not regulate the procedure for
such conferences referring this crucial issue for the consideration of “all-
Ukrainian” Councils of general and specialized courts.
Numerous collisions between old and new norms as well as lacunas caused by
the amendments to the Law on the Judiciary and the status of Judges
complicated functioning of judicial self-governance and threaten the efficiency
of new convention procedures of the Congress of Judges of Ukraine. It should
be taken into consideration the Congress of Judges of Ukraine cannot be
14convened without additional amendments to the Law on the Judiciary and the
Status of Judges of Ukraine.
The abovementioned collisions have to be addressed, preferably simultaneously
with addressing simplification of judicial self-governance, as it was suggested
by the Venice Commission, by waiving the conferences and councils of judges
of general and specialized courts.
28. The proper attention of the legislator as well as of the Council of Europe experts
was not brought to the recommendation of the European Court of Human Rights
in its case Oleksandr Volkov v. Ukraine, in particular regarding:
a. lack of legal provision for time period for such a sanction for judges
as dismissal from the office based on the breaches of oath;
b. the composition of the High Council of Justice that does not
correspond European standards.
It has to be noted that in case the recommendations are not addressed by the
legislator it can cause the challenge to renew in the future the judges dismissed
based on the breaches of oath and to pay them significant compensation. The
judges than will turn from the real or possible offender into the victims of
human rights violations.
The first issue can be easily addressed in the legislation. The second one
requires changes in regulations on the Constitutional level.
The composition of the High Council of Justice is stipulated by the Constitution
– it is co-formed by the President of Ukraine, Verkhovna Rada of Ukraine,
advocates, prosecutors, legal academia, and judges. In 2010 in order to
approximate this provision to European standards in the framework of current
Constitution, the legislator provided that the President of Ukraine, Verkhovna
Rada of Ukraine, advocates, prosecutors and legal academia will appoint part of
the members of the High Council of Justice from the among judges. However,
European Court of Human Rights found it insufficient as those were not judges
elected by judges.
We suggest that before the amendments to the Constitution are introduced the
law has to put an obligation upon the President of Ukraine, Verkhovna Rada of
Ukraine, congresses of advocates, prosecutors, and legal academia to appoint
the members of the High Council of Justice from the among judges preliminary
suggested (elected) by the Congress of Judges of Ukraine.
15IV. Conclusions
29. The Law on the Restoration of Trust in the Judiciary in Ukraine, aiming at
enhancing of the judicial independence, specified the following ways to achieve
it:
a. to guarantee to the society the accountability of judges, who demonstrated
ungracious violations of human rights under the rule of President
Yanukovych;
b. to destroy administrative subordination in the judiciary;
c. to establish the opportunities for judges to overcome the legacy of the
political and administrative oppression.
Preliminary experience of implementation of the Law has confirmed that some
tools selected by the legislator appeared to be successful and the other would
require, as we suggest, further legislative improvements or clarification in
practice.
30. In order to guarantee to the society the accountability of judges, who
demonstrated ungracious violations of human rights there should be a competitive
selection of future member of the Special Ad Hoc Commission, who would meet
the requirements of professional experience and political neutrality.
31. In addition, it is crucial in the future rules of procedure of the Special Ad Hoc
Commission:
a. to regulate what will happen to the pending cases before the Special Ad
Hoc Commission upon the termination of its mandate;
b. to provide for confidentiality of the initial steps of investigations;
c. to guarantee fair public hearing.
32. To amend the Law on the Judiciary and the Status of Judges as well as the Law
on the High Council of Justice, in particular:
a. to introduce the wide scale of disciplinary sanctions to ensure the
principle of proportionality;
b. to specify time period for such a sanction for judges as dismissal from the
office based on the breaches of oath;
16c. before the amendments to the Constitution are introduced, to put an
obligation upon the President of Ukraine, Verkhovna Rada of Ukraine,
congresses of advocates, prosecutors, and legal academia to appoint the
members of the High Council of Justice from the among judges
preliminary suggested (elected) by the Congress of Judges of Ukraine;
d. to address legal collisions and lacunas regarding the judicial self-
governance simultaneously providing for its simplification.
33. In order to facilitate the establishment of new culture of the election to and
functioning on the administrative positions it‟s worth considering to legally ban
for certain period of time the right to be elected to administrative position for the
former court presidents, their deputies and the secretaries of court chambers.
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