You're reading: Venice Commission exposes new court law

Editor's Note: The Venice Commission, also known as the The European Commission for Democracy through Law, late on Oct. 18 published its opinion on controversial The Law on Judges and Judge Status, adopted by parliament during a 5-hour evening session on July 7.

President Viktor Yanukovych, who signed the measure weeks later, said the new law demonstrated his resolve to clean up the nation’s notoriously corrupt judiciary. Opposition politicians and legal scholars, meanwhile, said new provisions in the law would further infringe on the rights of citizens to defend themselves in court and destroy Ukraine’s unified judicial system.

The weekly Zerkalo Nedeli newspaper on Oct. 16 quoted Maryna Stavnichuk, a commission member, as saying that the new law "was adopted in haste and is of low quality." Her colleagues on the commission appear to agree.

Below find the the published conclusion of the 37-page opinion, which praises only four aspects of the 157-page law, while recommending changes to 28 others.

As positive elements of the reform, the Venice Commission welcomes in particular:

1. The introduction of an automatic case-flow and case-assignment system (however it should be made sure that specialisation of judges cannot be used to circumvent this system).

2. The election of a judge after the probationary period for a lifetime position has been made standard and only in exceptional cases can judges not be appointed to a permanent position

3. The State Judicial Administration has been brought under the control of the judiciary but it should be ensured that the Head of this administration has to seek approval for his decisions in major cases.

4.The dissolution of military courts.


Recommendations for improvement of the Law include inter alia:

1. The new Supreme Court should deal with its ‘old’ case-load in chambers and, If needed, it should be possible to appoint specialised judges to the Supreme Court even before the total number of 20 judges is reached.

2. The Supreme Court should be allowed to exercise its jurisdiction to resolve conflicts between the high specialised courts also in matters of procedural law and the Court should be able to decide itself on the admissibility of cases involving a conflict in the interpretation of the law. It should also be made competent to resolve conflicts of jurisdiction between the three sorts of jurisdiction (civil and criminal, commercial and administrative).

3. Direct access to the Supreme Court should be provided in cases of violations of international obligations of Ukraine.

4. All types of awards to judges should be prohibited.

5. As long as the High Council of Justice is not a body composed according to European standards, it should not have the competence to appoint the court presidents and their deputies.

6. Submitting a candidate’s performance as a judge to scrutiny by the general public constitutes a threat to the candidate’s independence.

7. In disciplinary matters, the rights of defence need to be specified more clearly.

8. The reporting member of the High Qualifications Commission, whose position is nearly similar to that of a prosecutor, should be excluded from the deliberations and the vote.

9. The grounds for removal from office should be set out in a more precise and narrow way.

10. The meaning of Article 47.2 of the Law, providing that a judge shall not be obliged “to provide any explanations regarding the merits of cases under his/her consideration, except when required by law”, should be clarified.

11. It is recommended to provide for some strictly circumscribed exceptions to the system of immunity of judges from liability actions (Article 48.1).

12. Article 68.2 and 68.3 of the Law, allowing for the High Qualifications Commission to collect information about the candidates and to make inquiries to enterprises, institutions and organisations of all form of ownership, and allowing for organisations and citizens to submit any information they may have about a candidate, should be clarified. There should be a procedure regulating the collecting and receiving of this kind of information, and the candidate should be made aware of the information and have the right to contest it.

13. The whole judicial training, and not only the practical part of it, should be under the control of the judiciary (Article 69.1).

14. It is strongly recommended to circumscribe the role of the High Council of Justice in the process of initial appointment of judges in a much more transparent way. Taking into account the characteristics of the decision-making process before the High Qualifications Commission, the role of the High Council of Justice should moreover be of a marginal nature.

15. Article 74.2 of the Law should indicate the ”circumstances” that would allow the High Qualifications Commission to refuse to recommend a candidate.

16. Article 79.4 of the Law provides that the decision on electing a candidate to a permanent position shall be taken by a majority of the constitutional composition of the Verkhovna Rada. Article 79.6, further provides that in case a candidate does not receive the number of votes thus required, re-voting shall be conducted. It would be better if the Law would provide that the recommendation by the High Qualifications Commission to elect the candidate is followed unless a qualified majority of the Verkhovna Rada rejects it. In any event, the above-mentioned provisions need to be clarified.

17. It is recommended to amend Article 80 of the Law, by providing criteria for the promotion of judges and involving the High Qualifications Commission to a considerable extent in the promotion process.

18. Article 89 of the Law provides for an appeal against the decision of the High Qualifications Commission to the High Council of Justice and to the High Administrative Court. The text should clarify when one or another of these avenues lies open.

19. It is recommended to reassess whether it is wise and necessary to have on the High Qualifications Commission a member representing the Minister of Justice. Especially in disciplinary proceedings, the presence of such a member may cast doubts on the independence of the High Qualifications Commission and does not respect the separation of powers.

20. In Section VII of the Law a clearer distinction should be made between removal from office based on the judge’s culpable behaviour and removal from office based on circumstances in connection of which no condemnable behaviour needs to be attributed to the judge. Arguably, the different grounds should merit different types of proceedings.

21. Article 111.4 of the Law provides that the decision to remove a judge shall be taken by a majority of the constitutional composition of the Verkhovna Rada. Article 111.5 further provides that in case the number of votes thus required is not received, re-voting shall be conducted. The latter provision should be amended. Once it appears that there is no qualified majority to remove an accused person from office, that should be the end of the matter.

22. Article 125.1 of the Law provides that delegates to the Congress of Judges of Ukraine shall be elected “on the basis of equal representation of each judicial jurisdiction”. It is recommended to provide for a more proportionate representation, in order to bring the composition of the Congress in conformity with the principle of equality.

23. It results from Article 127.2 of the Law that the Council of Judges comprises an equal number of representatives from each of the three conferences of judges. It is recommended to provide for a more proportionate representation, in order to bring the composition of the Council in conformity with the principle of equality.

24. It is recommended to clarify the extent to which demands by the judiciary, presumably through its bodies of self-government, have to be met by the State authorities.

25. It is desirable that the State Judicial Administration is unmistakably declared a body of self-administration of the judiciary (see Article 145 of the Law).

26. In order to avoid that the exercise of the competences of the State Judicial Administration of Ukraine interfere with the principle of judicial independence, the Law should be amended so as to ensure that the overall direction of the administration of the courts lies within the judiciary.

27. The members of the High Qualifications Commission of Judges, apart from the representative of the Minister of Justice, including the six judges, should not be appointed on the basis of affiliation to a given political party.

28. It will be for the competent disciplinary body, i.e. the High Qualifications Commission or the High Council of Justice, to apply the legal grounds for disciplinary action (Article 83) in a reasonable way. For instance, the Law makes any failure to take action regarding the consideration of an application, a complaint or a case “within the term established by law” a ground for disciplinary action against the judge. This provision should be applied in a fair way, and not used inappropriately, to punish judges for other reasons than the ones officially disclosed.

The complete opinion of the Venice Commission on Ukraine’s court law is here.