The seventh President of the US Andrew Jackson once said that all the rights secured to the citizens under the Constitution are worth nothing, a mere bubble, except guaranteed to them by an independent and virtuous Judiciary.
Ukrainian Constitution says that the individual, his or her life, honour and dignity are of the highest value. Bearing in mind this provision, the state has been struggling to create proper mechanisms to protect inalienable human rights and freedoms, but has failed too many times. New laws were passed, new ideas were pursued, yet the system remained the same. Corruption in the courts and judges’ puppet-like behaviour in the hands of oligarchs and the executive resulted in a total distrust to the judiciary among Ukrainians.
The Revolution of Dignity brought about a clear understanding that we cannot continue carrying on like this. That is why a coherent judiciary reform is an obligation of the state rather than just an option. Luckily, it is already on its way to adoption. The motto is the quote of Ukrainian Prime Minister Arseniy Yatsenuyk: ‘Courts must make their decisions in name of Ukraine, but not in the name of American dollar’. This simple sentence describes the depth of crisis in Ukrainian justice system. In order to tackle this intractable problem on August 13, 2015 the members of the Working Group on Judiciary Issues, operating within the Constitutional Commission, presented the draft amendments to the Constitution of Ukraine regarding the Judiciary.
Creating independent judiciary
According to Olexiy Filatov, Deputy Head of the Presidential Administration of Ukraine and Head of the Working Group, Constitutional reform is a basis for reforming the justice system. He noted that Constitutional amendments would cover reworking of the judicial standards, fine-tuning of the judiciary’s functioning and bringing the justice system in compliance with the European standards. In his speech he singled out the problem of ensuring the independence of judges, the significance of which cannot be emphasised enough.
In this respect, the Constitutional Commission alludes that the establishment of High Council of Justice may be a solution. The responsibilities of twenty one members, who are to make up this organ, would be to appoint judges (on the submission from the President) and to decide on their dismissal. Moreover, ultimate punitive measure to detain or arrest judges would come not from the Verchovna Rada but from the High Council of Justice. These provisions represent the endeavours to shield courts from other branches of government interfering with the administration of justice and were highly assessed by the Venice Commission.
Nevertheless, the mechanisms of making judges independent in their rulings are still vague. The draft law stipulates that the High Council of Justice is to use all means to assure the independence of judges without providing any further details or introducing specific mechanisms. This is an obvious shortcoming of the reform plan, since this is exactly where a lot of instances of interference with the administration of justice take place, with governmental and private actors being equally culpable.
Any reform aimed at enhancing independence of courts and judges in Ukraine cannot bypass the Constitutional Court. The Court, utterly discredited by its record, is a notorious opposition to the notion of an independent institution. Consequently, it would be an enormous oversight of Constitutional Commission to overleap its reforming. The reform strategy is threefold. First of all, according to the draft law, “the state decides on providing the Constitutional Court with a separate amount of funds while drafting the state budget”. In other words, it is financial independence.
Secondly, it is professionalism. The bill introduces new requirements for those, who want to become judges of the Constitutional Court: a candidate has to at least 45 years old and to have at least 15 years of legal work experience.
Finally, it is judicial independence. A Constitutional Court judge cannot be detained or arrested without the consent of the Constitutional Court. Neither can he or she be brought to account for the way they vote in the course of adjudication. But will it really bring about judicial independence to the Constitutional Court? The question remains unanswered for now since no further mechanisms are provided once again.
Introducing new faces
Since the intention (or at least one of intentions) behind the upcoming Constitutional reform is a total “re-boot” of the judicial system, new judges are to be appointed and the old ones to be dismissed. This approach is controversial, and the Venice Commission regards it as undemocratic and contradicting European standards. In its stead, the Commission proposes to reorganise the work of some courts and vet judges.
But in Ukrainian context, it is harder, yet more efficient, to build a new house than to repair the old one filled with mistakes, biases, corrupt institutional culture and perverse interpretations of justice. Furthermore, the requirements for potential judges are higher than for their predecessors. In order to become a judge in Ukraine one will have to be between 35 (instead of 25) and 65 years old, have a higher education and five years (instead of three) of work experience.
Other innovations: redefined jurisdiction, pre-trial dispute resolution and the ICC
The draft law redefines the boundaries of courts’ jurisdiction. The latter shall extend to all disputes regarding legal rights and obligations of a person (natural or legal), as well as criminal proceedings. In comparison, currently the Constitution defines courts’ jurisdiction as extending to all legal relationships that the state may have. It marks a shift from a state-centred to people-centred approach to administering justice.
In addition, having in mind the fact that Ukrainian courts are overloaded with cases, Constitutional Commission envisaged a possibility of pre-trial dispute resolution. Lacking in details, the specifics of pre-trial dispute resolution are expected to be determined by some other law that will make this norm less vague and obscure. It remains to be seen if this new procedure will draw upon best guidelines and practices of alternative dispute resolution systems from around the world.
In the context of international relations, the draft law states the fact that Ukraine may recognise the jurisdiction of International Criminal Court (ICC) on the grounds prescribed by the Rome Statute. The latter was signed by Ukraine in 2000, but hadn’t been ratified yet. It is important to highlight that the ratification of Rome Statute is among other obligations taken by Ukraine under the Ukraine-European Union Association Agreement. So this is where Ukraine presents itself as the one that is not only in the words but in actions as well eager to join the European Union.
All in all, the main idea behind the reform – to root out the old system and to build a new one instead – seems quite revolutionary. The creation of High Council of Justice that would assure some degree of protection for judges from the influence of the executive and the Parliament sounds really appealing, yet it raises concerns about how genuine its implementation will be. And the possibility of accepting ICC jurisdiction, perhaps, is the most progressive provision, since it would give a chance to bring to justice those responsible for crimes under the international law committed in the territory of Ukraine and against Ukrainians. However, one needs to use caution: the reforms may look promising and be well on the way to adoption, but no one can foresee all the impediments their implementation will encounter.
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