On 7 July 2010 260 members of Ukraine’s parliament voted to pass the Law “On the Judicial System and Status of Judges”.  The version is roughly that proposed by President Yanukovych within months of taking office, and contains extremely radical changes to the present system. Many of the new elements aroused serious concern so there was relief when the Government apparently concurred with Ukrainian and European specialists on the need to await the assessment of the Council of Europe’s Venice Commission. 

            Given the long and depressing saga of judicial reform in Ukraine, the ruling coalition acted with blitzkrieg speed in passing a second and final version of the draft law after apparently receiving some – unpublished – comments on the first and different reading of the law from the Venice Commission. This suggests no shortage of political will to bring in changes, however whether these can be called judicial reform is quite another matter.

            Since the law passed on 7 July contains all the likely threats to an independent judiciary and infringements of the Constitution criticized by Ukrainian specialists, the Co-Rapporteurs on Ukraine to the Parliamentary Assembly of the Council of Europe [PACE] and others, it is imperative that the President does not sign this law until the comments from the Venice Commission have been made public and questions answered.

            An independent judiciary is vital for Ukraine’s democratic development and economic prosperity. Quite brutally, nobody will wish to invest in a country whose judges are puppets to politicians.  Over the last month, the President ignored calls from the banking sphere, media and human rights groups to veto a disastrous bill on personal data protection.  The following explains in brief why the consequences if this new law comes into force are even more disturbing.

            The main areas of concern are focused on the means of educating, selecting and penalizing judges, and, connected with this, the increased power of two bodies with direct impact on such processes. 

Ihor Koliushko and Roman Kuybida from the Centre for Political and Legal Reform have analyzed the bill just passed. They point to worrying divergence from European standards in the new system of judge education.  There is little clarity regarding the new institutions which are now going to train judges, except that these are to be under the jurisdiction of the Ministry of Education.  This entirely contradicts European standards since the Ministry is part of the executive branch of power, and cannot be considered an independent body.  This change is all the more baffling since there is already an Academy of Judges (School of Judges in the new law) which fully complies with European guidelines in being autonomous and, in fact, already serves an educational function under the control of the judiciary.

It is disturbing also that these new specialized institutes for training judges are to have a say in the selection process of new judges, another innovation increasing not only scope for political influence, but also the likelihood of corruption.  The new law has not added something noticeably absent in the law it replaces, this being any guidelines at all on how judges to higher level courts are appointed.

In their Information Note, the PACE Co-Rapporteurs on Ukraine specifically mention the need for a Venice Commission Opinion regarding the Law on the Judicial System (as well as the law amending the legislation concerning the High Council of Justice.  “The speed with which this draft law was introduced and processed is raising some questions and doubts, especially as it contains a number of potentially politically charged provisions”.  They point specifically to the considerably reduced role of the Supreme Court, presently headed by somebody seen as a close supporter of Yulia Tymoshenko’s bloc and the sharply increased role of the High Council of Justice. The President’s recent appointment of Valery Khoroshkovsky, Head of the Security Service [SBU] and media owner to the High Council of Justice is singled out, especially given the “potential conflicts of interest as it is the State Security Service that is responsible for investigating any allegations against judges in Ukraine”.

It should be noted that Mr Khoroshkovsky has no legal background whatsoever, which is in clear breach of the requirements of the Law on the High Council of Justice, yet public calls on the President to revoke this strange appointment have been ignored.   The role given this body is also at variance with that stipulated in the Constitution.

If the new Law comes into force, two bodies will gain very great power over the appointment, dismissal and general career movement of judges in Ukraine. As the authors of the above-mentioned analysis put it, “the High Qualifying Commission of Judges has received broad powers for forming the judge corps and bringing disciplinary proceedings against judges. We cannot exclude the possibility that following the example of the High Council of Justice, a fierce battle for the position of each member of the Qualifying Commission will ensue. …  Clearly influence from the new regime on the formation of the High Qualifying Commission of Judges is inevitable”.

They suggest that it is reasonable to assume that there will be pressure regarding “the right judges” to appoint.

And where judges pass the “wrong” rulings, there is ample scope for disciplinary measures, which are again determined largely by the High Qualifying Commission of Judges and High Council of Justice.  There are other parts of the new law which bring in seriously reduced time frames for examination of court cases. For those of us who remember Dickens’ “Bleak House” or have had experience of protracted court cases, this can seem positive. In fact, the changes could jeopardize the right of appeal for many Ukrainians unable to afford a lawyer.  In a lot of cases the norms will simply be impossible to apply given judges’ workloads and serious financial constraints on the courts.  They should not, however, be dismissed as empty words. Should a judge provide “the wrong ruling”, those words can turn into a very effective weapon. 

The weapons against judges, and therefore against all Ukrainians and others interested in a real and independent justice system in Ukraine are manifold.   Ukrainian analytical and human rights organizations are presently calling on the President to veto the bill.  We hope that others will help impress upon the country’s leaders that any changes to the justice system must be in compliance with democratic standards of judicial independence.