Member of the Venice Commission Marina Stavniychuk writes that the Commission’s recommendations to Ukraine involve a total rethinking by Ukrainian constitutionalists of the principle of the division of power, the relations between the President, the legislative, executive and judicial branches of power.

17 March 2010 saw the publication of the Joint Opinion on the Draft Law on the Judicial System and the Status of Judges of Ukraine by the Venice Commission and the Directorate of Co-operation within the Directorate General of Human Rights and Legal Affairs of the Council of Europe.

Ms Stavniychuk believes that the recommendations made will demand radical changes in the organization of power not only at the level of changes in legislation, but also in carrying out constitutional reforms.

“Judicial reform should have several directions with the relevant priorities for each of them which need appropriate consolidation. The logic behind the main direction of judicial reform should lie mainly in the creation of the fundamental principles of the independence of the judicial system as a whole, and of judges in particular, as the basis for a fair court examination by an unbiased court. The main principles of the rule of law demand balance between the powers of the legislature, executive and judiciary, balance capable of ensuring the independent status of judicial proceedings with the functions of real unbiased control with regard to all legal relations in the country”.

The Venice Commission therefore recommends that judicial reform not be confined to the level of legislation, but that deeper constitutional reform be carried out.

“By this recommendation from the Venice Commission is in fact meant a whole rethinking by Ukrainian constitutionalists of the principle of the division of power, the relations between the President, the legislative, executive and judicial branches of power. We are talking of new principles for Ukraine, different from the previous foundations of organizing the power structure and eliminating inappropriate connections and influences: political, personal, etc”.

She points out that the recommendations are aimed first and foremost at affirming real independence of the judiciary.  The comments from the European experts therefore focus on certain key issues of judicial proceedings: excessive politicization of the process of appointing and dismissing judges, formations and the system of the judiciary, the issue of the status of judges, guarantees for their work and the closely linked question of judge self-government.

She notes that the Commission expresses particular reservations over the mechanisms for the Verkhovna Rada’s exercising of authority in the area of judicial proceedings.

“The role given the Verkhovna Rada in the procedure of electing judges to indefinite tenure and dismissing them is incompatible with an independent judiciary. In view of this the present legislative initiatives in this regard require radical overhauling. Courts should be independent of the legislature as a whole, as from executive power, by the way, aside from the duty they have to comply with the Constitution and laws passed by parliament.”

The article in full is published here: http://www.dt.ua/1000/1050/69113/