Council of Europe Conseil de l'europe European Union Union européenne This programme is co-funded by the European Union and the Council of Europe and implemented by the Council of Europe Lviv National University in the name of Ivan Franko In cooperation with USAID Ukraine Rule of Law Project and Joint Council of Europe and European Union Project Transparency and Efficiency of the Judicial System of Ukraine Conference Constitutional Aspects of Judicial Reform in Ukraine March 24 and 25, 2011 Lviv, Ukraine CONCLUSIONS OF THE CONFERENCE More than 120 participants of the Conference on Constitutional Aspects of Judicial Reform in Ukraine concluded and recommended the following: The 1996 Constitution of Ukraine has numerous gaps with respect to Council of Europe standards and commitments of Ukraine regarding the rule of law and the independence of the judiciary. The Constitutional provisions of Chapter II Human and Citizens Rights, Freedoms and Duties need changes to be in line with recognized standards with respect to human rights and fair trial, defense and double jeopardy. Need to promote constitutional changes with leading policy-makers and to ensure that the required changes with regard to the judiciary are not ignored, postponed or forgotten. Judicial reform in Ukraine is an ongoing process, the Law on Judiciary and Status of Judges in Ukraine introduced a number of significant changes, but these changes are limited by Constitutional provisions. Conference participants discussed the constitutionality of some provisions of the new Law on the Judiciary and the Status of Judges and changes have to be introduced to the Constitution to be in line with Council of Europe standards. 1
Session 1: Constitutional Provisions Related to the Judiciary in Ukraine The Judiciary Section of the Constitution needs revision in accordance with Council of Europe standards based on the 2006 and 2010 Venice Commission recommendations. The Constitution should guarantee a fair state fee for court services. It would be useful to concentrate court services (instead of 10 smaller courts in the City of Lviv to have 1 larger court, for example); there should also be a transition to precedent law, where the Supreme Court of Ukraine plays a critical leading role. The Constitution should guarantee the main institutional and functional principles of the judiciary: an independent branch of the state power, which is fair, accessible, impartial, based on the rule of law, implemented by courts only within the framework of court procedures. It is not necessary to implement new models and principles, but it is necessary to correct mistakes, specifically related to the status of the Supreme Court, the status of higher courts, minimal age for judicial candidates (25 years is too young). 5-year probation period for judges is too long, it, should be less. It would be useful to introduce a jury trial system in Ukraine (at least three years of transition period is needed). Constitution should guarantee professional immunity and irremovability for judges. The current Constitution appears somewhat confusing with regard to specialization. In the same provision, it affirms the principle of specialization and the prohibition of special courts. The instance principle should not be applied to specialized courts. The Higher Specialized Court for Review of Criminal and Civil Cases is not in line with the Constitution and other legislation, since there is no specialized first instance and appellate courts to review these two types of cases. Session 2: Judicial Reform and the Constitution of Ukraine The modernization of the judiciary is an on-going process and in this respect, the Constitutional Court of Ukraine can play a leading role. Legal Science should be more active in the process of strengthening the rule of law in Ukraine. Many problems of the judicial reform in Ukraine stem from scientists are not active enough in asking for the implementation of international standards. The functions of the Constitutional Court of Ukraine and Supreme Court of Ukraine have to be harmonized. The Supreme Court should not seek the Constitutional Court s interpretation, but deal with such issues on its own. Individual Constitutional complaints are not possible at the moment, maybe in the future. The law on the Judiciary and the Status of Judges has some provisions which are not in compliance with the Constitution, including the language of trial, the High Specialized Court for Review of Criminal and Civil Cases, and the scope of authority of the Supreme Court of Ukraine. Currently, the reform, following the adoption of the Law on the Judiciary and the Status of Judges, has had some positive repercussions when looking at individual courts: random case assignment, the status of chief judge (no pressure on judges) 2
and transparency (registry of court decisions). For the society in general, the reform has a more negative impact than a positive one: social cases are stacked in appellate courts, public trust in the judiciary is decreasing, and court decisions are not enforced. The judicial reform cannot be effective without the reform of the public prosecution institutions, the bar and the police. Judicial self-governance is essential, but at the moment there are too many bodies and commissions with no practical content. The composition of High Council of Justice is not in compliance with international standards. Session 3: Issues Related to the Formation of the Court System in Ukraine in the Context of the Law of Ukraine On the Judiciary and Status of Judges Concern that the Law on the Judiciary and the Status of Judges decreases judicial independence. A specific concern is the High Qualifications Commission of Judges, which became a quasi- court with a great deal of authority on disciplinary cases against judges. The results of the judicial reform are: old issues are not solved and new issues appeared. It is not good to have fixed short-terms for processing court cases, it is more important to have good quality court decisions, which solve conflicts and protect citizens rights. Judges can do nothing with respect to the enforcement of court decisions other than promote legislative changes. There is pilot program for the administrative judiciary on the enforcement of court decisions: the public authority who loses a case against a citizen must report to the court on the enforcement of the court decision. There is no consensus regarding the role and functions of the Supreme Court. It is necessary to develop and sustain the judicial self-governance. Session 4: Judicial Power and Human Rights in the Constitution of Ukraine The Constitution of Ukraine does not have enough provisions that ensure human rights with regard to pre-trial detention, the right to refuse to be a witness and with regard to the prohibition of torture (Articles 29, 30, 28, 63). Criminal procedure should be fair with regard to the defendant. Every criminal process should lead to establishing material truth, ie to prove the crime without reasonable doubt. Determination of guilt should be a result of open case review, where the prosecutor and defense lawyer have equal rights and the judge makes a decision totally independently from the prosecutor. Criminal procedural rules should guarantee the effective defense to counteract the prosecutor, even during pre-trial investigation. Right to defense lawyer to effectively review the reliability of evidence collected during pre-trial investigation. To extend relevant procedural safeguards of the trial to the pre-trial phase. 3
Session 5: Constitutional Status of a Judge and Conditions for the Formation of the Judicial Corps in Ukraine The law on the Judiciary and the Status of Judges (2010) established the new rule for the judicial appointment, in which the High Qualifications Commission of Judges plays the key role. The Venice Commission considers that the HQC provisions do not comply with international standards. The judicial appointment framework includes open announcement, anonymous testing and specialized training, organized by the National School of Judges of Ukraine and conducted by one of four universities: Lviv National University, Kyiv National University, Kharkiv Law Academy and Odessa Law Academy. It is up to the HQC to decide where candidate judges should receive specialized training. Problematic questions of judicial appointment: National School of Judges has not yet been established and the High Council of Justice conducts its own testing which repeats what the HQC does. The High Council of Justice should not conduct any tests. Although the integrity of judges is an essential feature that should be taken into account when selecting candidates, checking the integrity through examination in practice is almost impossible. As a rule, and unless the contrary is evident, candidates for a judicial position should be deemed having integrity. However, a background check of the candidates is possible. The USAID Ukraine Rule of Law Project, which is constantly working on improving the judicial selection, introduced some tools for checking integrity (professional references in Judicial Vacancy Application Form). The Constitution should guarantee the protection of judges and their independence (Article 126 should be amended, it is not sufficient). Constitution should safeguard the organizational structure of the judiciary and recognize the right to natural judges, pre-established by law. 5-year period for the first appointment makes judicial independence vulnerable. Judges depend on Parliament and the President; this should not be so. The composition of the High Council of Justice does not comply with international standards. The judiciary is vulnerable because laws come from Parliament and funds come from State Budget (Cabinet of Ministers). This is why the Constitution should guarantee: - self-administration for the judiciary - sufficient funding - effective self-governance - independence - transparent procedures of judicial selection - professional immunity for decisions taken - fair disciplinary processes - sufficient salary The participants of Conference recommended to: 4
- expand Section II of the Constitution with the right for fair trial, the right to jury trial, to enhance guarantees in the Article 29, and provide for guarantees against double jeopardy. - remove the right of the President to create courts. - remove from paragraph 2, point 1 of the Article 121, the right of prosecutor to act on behalf of citizens - amend Article121 with principles for prosecutorial activity, including legality, neutrality, and impartiality. - amend Section 8 of the Constitution to read Judiciary. - expand Article 125 with a statement that the creation and closure of courts, as well as the number of courts and judges should be established by law. - limit judicial immunity to activities in the judicial office (Article 126, Part 3) - Increase the maximum age to keep the position of judge to 70 years. - Remove the prohibition for judges to become members of trade unions. - The probation period should be not more than 2 years. - Revise Article 131 with regard to the status, composition and authority of the High Council of Justice. - Review the provisions regarding the status and scope of the Constitutional Court of Ukraine. Session 6: Role, Functions and Status of Prosecutor s Office in the Constitution of Ukraine Article 121 of the Constitution of Ukraine is mostly in compliance with European standards; however, the Law on the Prosecutor s Office has many provisions that are not in compliance with these standards With regard to the presentation of citizens interests in courts, citizens should use their rights themselves without the Prosecutors Offices; the Law should clarify when citizens interests can be presented by Prosecutors Offices (ie, if a person is not able to protect him/ herself). Prosecutor s Office should have more authority to control police action. Prosecutor s Office should have less authority in criminal processes when dealing with human rights. Corruption index of the Council of Europe shows the following trend: the more discretion the Prosecutor s Office has, the more corrupt the country is. It is the role of the Prosecutor s Office to strengthen the rule of law. The role, responsibility and status of prosecutorial authority in Ukraine is a matter of public interest and has to be resolve in Parliament, according to international commitment. The junior members of the Prosecutor s Office have in practice no means to refuse to comply with unlawful instructions from their superiors. The judges fear abuses from the Prosecutor s Office. Judges act in practice under pressure of the Prosecutor s Office for fear of being themselves prosecuted. The provision giving the General Public Prosecutor the exclusive power to charge and indict judges, instead of being a safeguard for the independence of judges against false accusations, it is in practice used as a means of exerting direct pressure upon the judiciary. 5