Reform without justice?

After discussing scandalous changes to the Constitution regarding decentralization, which require 300 votes to be finally passed (here there is a problem), MPs opened the next stage. Parliament has put on the session’s agenda and referred to the Constitutional Court a bill on making changes to the Fundamental Law, as far as the system of justice is concerned.

Non-independence of the judicial branch of power is one of Ukraine’s main problems. An illustrious example of the absence of qualitative changes in this field for many years is a high-profile Gongadze-Podolsky case. Despite changes of politicians in power and major upheavals in this country, the judicial system continues to serve those who ordered this and other crimes and follow instructions “from above.” When were the “mines” laid under the judicial branch?

“If we look back at our history, beginning from the gaining of independence, we will see that the judicial system was developing in rather easy-to-grasp and logical directions in the early 1990s,” law expert Mykola Siry comments to The Day. “In my view, that was even a positive development. But progress ground to a halt somewhere in the late 1990s. Other sentiments began to dominate. If you compare the periods of different presidents’ rule, the Kuchma period is characterized by the aspiration to establish control over the judicial system.”

Although parliament voted for new legislative initiatives after the Euromaidan, there have been very few, if any, changes in the judicial system. It still sticks to old practices. How can these be reversed? Experts say it is first of all necessary to introduce changes into The Fundamental Law.

INSCRIPTION READS: "DECISION IN THE NAME OF UKRAINE" / Photo by Ruslan KANIUKA, The Day

“The situation is funny in that, in terms of the text, Poroshenko’s draft judicial reform is in fact 99 percent identical to similar proposals of Viktor Yanukovych in 2013,” UKROP party leader Hennadii Korban writes in his Facebook page. “The two presidents’ goals are also identical – firstly, to show European experts their ‘democratic spirit’ and ‘progressiveness,’ and, secondly, to use the very fact of bill proposal as a bargaining chip in bidding for control over the judicial system.”

Tellingly, the Venice Commission arrived at the final conclusion as far back as October 23, approving in general the law drawn up by a Constitutional Court task force. The commission had also reacted very quickly to the Constitutional changes regarding decentralization. Experts say this may be linked with the Minsk process and certain deals between the Ukrainian leadership and its Western partners.

“I HAVE LITTLE FAITH IN THE JUDICIARY REFORM MEETING THE PUBLIC’S EXPECTATIONS”

Viktor MUSIIAKA, co-author of the Ukrainian Constitution, a renowned legal expert:

“Of course, now is the time for change, because our judicial system has long been in need of reshaping. Accordingly, we need constitutional principles for it. The draft amendments which the president submitted to the parliament have already been sent to the Constitutional Court (CC), but there is a caveat here. The CC once decided that the parliament needs 226 votes in favor to send amendment bills to the Court. However, it is unconstitutional because the Fundamental Law allows 150 MPs and the president to submit the relevant bills, so the speaker of the Verkhovna Rada should send constitutional amendment bills to the CC automatically. What are they to do if parliament fails to gather 226 votes?

“If we talk about the essence of the amendments on offer, there are a number of issues that should be corrected. Otherwise, it may harm the whole idea. There are a lot of them throughout the text, but I will note the key ones only. For example, Article 124 Part 6 states that Ukraine may recognize the jurisdiction of the International Criminal Court (ICC) based on the Rome Statute. There was also much talk past year of the need to prosecute many individuals under the ICC jurisdiction. However, even though we signed the charter 15 years ago, it has not yet been ratified. Therefore, this wording seems unacceptable. In addition, this provision is to become effective three years after the amendments to the Constitution come into force. This is a travesty unworthy of this constitutional matter. We need to state that Ukraine recognizes the jurisdiction of the ICC, and specify in the transitional provisions that this norm comes into force after the ratification of the Rome Statute.

“We remember the role of the CC in the constitutional coup of 2010. What we are offered now, however, are constitutional amendments which make the CC effectively totally independent. Under them, CC judges take their oath of office at a session of the CC itself. When it comes to bringing to justice a CC judge, the decision granting the prosecution the right to proceed is taken also by the CC itself. Thus, the judges who voted for the constitutional coup will have to bring to justice their colleagues.

“The draft amendments have been supplemented with a great-looking provision granting any citizen the right to lodge a constitutional complaint. However, its mechanism is terribly inappropriate, as the draft states slyly: ‘if all other domestic remedies have been exhausted.’ It looks like government institutions can be seen as such remedies, it sounds confusing, and the end result is that people will have the right to appeal against an unconstitutional law, but they will be unable to exercise that right.

“Regarding the judicial selection. To reduce political influence on the judicial selection, it is proposed that the parliament did not take part in the permanent appointment of judges at all. They should be appointed by the president for an indefinite period of time on the proposal of the High Council of Judiciary (HCJ, now called the High Council of Justice). Everything seems normal, but there is no provision for the situation where the president may delay this process by refusing to issue decrees. For example, we have such a situation now, with more than 800 judges who receive salaries but have not been appointed.”

“Also, it is planned, as recommended by the European institutions, that judges should be in the majority in the HCJ. So, judges from the old system will continue to select the judiciary. I would have stipulated in the transitional provisions that the membership of the HCJ must be renewed every two years as long as we do not trust it completely.

“The greatest danger is hidden in the transitional provisions. For example, they stipulate that the establishment, reorganization, and liquidation of courts is done by the president on the basis of law which he or she is to submit to the legislature after consultation with the HCJ, instead of the HCJ doing it on its own. However, the HCJ should be the only judiciary body responsible for selecting the judiciary. And most importantly, the transitional provisions read: ‘the establishment, reorganization, and liquidation of courts are to be done exclusively by the president for two years after the introduction of the new Constitution.’ It effectively means that the president will establish, reorganize, and liquidate courts without the HCJ’s input until the final changes of administrative-territorial structure take place. How then can one talk about the judicial independence and the lack of political influence on the judiciary?

“Unfortunately, none of those directly involved in the process wants to consider any suggestions and changes that would really affect the formation and functioning of the judiciary. Preparation of constitutional amendments regarding decentralization was done in a similar manner. Some truly needed changes were not made.

“All this should have been taken into account before the bill was sent to CC. After all, I have little faith that any changes will be made after the constitutional amendments’ consideration in the CC. Therefore, I have little faith in the judiciary reform meeting the public’s expectations.”