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Venice Commission says recent legal amendments on judiciary in Ukraine threaten stability and independence of the system

CoE: The Council of Europe’s constitutional legal expert’s body, the Venice Commission, has adopted an opinion on the amendments to the legal framework of Ukraine with respect to the Supreme Court and judicial governance bodies, which introduce a number of radical changes to the judiciary system, some of which are deeply worrying. The Law No. 193 notably provides new rules on the structure and role of the High Council of Judges (HCJ) and on the composition and status of High Qualification Commission of Judges (HQCJ); halves the number of the Supreme Court judges and introduces strict disciplinary measures for judges and the members of the HCJ and the HQCJ. 

The Venice Commission welcomes the fact that the two judicial governance bodies have been brought closer, and that the project to subject the heads of the HQCJ and of the State Judicial Administration acting between 2013 and 2019 to the Law on Purification of Government (lustration) was abandoned. It also takes good note that the government majority seems to be open to further changes in the judicial system to remove shortcomings of the new law, which was adopted in a very speedy procedure, without sufficiently considering the views of all relevant stakeholders.

The stability and independence of the judicial system go hand in hand. The Venice Commission recalls that the reform of the process of selection of judges and the new composition of the Supreme Court of Ukraine which began its work in January 2018, was a “marked improvement over the system that existed before”. All the judges of the Supreme Court were appointed recently following a comprehensive process of performance evaluation and assessment of their integrity. Initiating yet another reform, following elections, that leads to major changes in the composition of the Supreme Court, “sends a message both to the judges and to the general public that it depends on the will of the respective majority in the parliament whether judges of the highest court may stay in the office or not”. “This is an obvious threat to their independence”, the Venice Commission states.

A reform of the Supreme Court can be undertaken once its huge case-load has been reduced including through the reform of the first and second instance courts, which should be the key focus of the reform. With the dissolution of the HQCJ on 7 November 2019, the procedure of appointments for first and second instance courts came to a complete stop, which is regrettable. More than 2,000 vacancies need to be filled urgently in these courts, some of which do not work at all due to the absence of judges. New judges who passed the re-evaluation procedure should be appointed urgently to fill these vacancies, the Venice Commission says.

The provision reducing the number of judges of the Supreme Court to 100, for which no adequate justification was provided, effectively amounts to second vetting and should be removed. A vetting of all Supreme Court judges when there are doubts about the integrity of a few of them is clearly not proportionate. Besides, the reduction of the number of judges now will trigger an even higher backlog of cases and jeopardise the functioning of the Supreme Court. The goal of reducing the number of judges may be pursued at a later stage, once the current caseload has been cleared and access filters become effective for new cases. A reduction of the number of judges could probably be achieved by means of natural reduction (retirements) or voluntary transfers.

Finally, the disciplinary procedure should be simplified: an appeal against disciplinary decisions of the High Council of Judges should lie directly with the Supreme Court and no longer with the unreformed Kyiv City Administrative Court and the administrative court of appeal. On the other hand, some of the deadlines in disciplinary proceedings shortened by Law No. 193 should be re-established.