|Dear Mr President, |
On 7 July 2010 the Verkhovna Rada, without waiting for the Venice Commission's Opinion, hurriedly passed the Law "On the Judicial System and Status of Judges". This was supposed to be the beginning of the long-awaited judicial reform.
However, despite a considerable number of positive innovations, some provisions of the new Law do not, in our opinion, comply with the Constitution, European standards and the interests of citizens, and will render meaningless future reform.
The following do not comply with the Constitution:
- The functions of the High Council of Justice have been broadened, in breach of Article 131 of the Constitution, to include appointing and dismissing the heads of courts, as well as examining complaints from judges who have been refused indefinite tenure.
- Retention of the President's power to transfer judges, including those with indefinite tenure, in spite of the procedure established by Article 123 of the Constitution.
- Unwarranted establishment of exceptions for appeals and cassation appeals against court rulings, ignoring the constitutional principles of court proceedings, stipulated in Article 129 of the Constitution.
- The Supreme Court, which in accordance with Article 125 of the Constitution has the status of highest court within the system of courts of general jurisdiction, is stripped of effective possibilities for standardizing case law in these courts. The law removes its right to pass the final ruling in a case and leaves it the right to examine cases only in the cases of divergent application of material law, not procedural law. And only when the application for a review is allowed by the relevant High Court whose ruling is appeal to the examination
- The retention and even extension, in violation of the constitutional principle of the division of powers, of the participation of the Prosecutor General and Minister of Justice in the work of plenums of high specialized courts and the Supreme Court.
The following are not in line with European standards
- The placing of special training of judges under the control of the Ministry of Education, through the institute (faculty) of training of professional judges being part of higher national educational institutes of fourth level accreditation.
- The fact that this institution which is dependent on the executive branch of power is to participate in the process of selection of judges;
- The failure to stipulate objective criteria and a competition for transferring judges, including selection as high court judges.
- The retention of an inquisition-style (not adversarial) procedure for bringing proceedings against judges, under which a member of the High Qualifying Commission of Judges or High Council of Justice is at once investigator, prosecutor and judge in relation to that particular judge.
The following are not in the interests of citizens
- The possibility of court examination of a case without the participation of a person who was not notified of the court hearing, for example, through the fault of the post office;
- Considerable reduction in time limits for lodging appeals or cassation appeals against a court ruling. In the absence of a system of accessible and effective legal aid, this will be a serious blow for people on low incomes.
- Major reduction in time periods for examination of cases at each level to one or two months, and in some categories of cases to 20, 15 or even 5 days. The need to observe these periods will lead to violations of the procedural rights of the parties and to superficial examinations.
- Removal of the right to ask for a judge to be removed where the circumstances which form the grounds for this become known after the examination has begun;
- Entry into force of the Law from 15 July 2010 which will give neither lawyers nor judges the opportunity to become familiar with the procedural innovations.
If you sign the Law "On the Judicial System and Status of Judges" in the version passed, citizens will receive a swift, but unfair justice system from dependent judges.
Since you have posed an entirely different aim for judicial reform - of ensuring just court proceedings and true independence of judges, we call on you to return the Law to the Verkhovna Rada with your proposals aimed at bringing its provisions into line with the Constitution, European standards and the interests of Ukraine's citizens.
You can add your voice to our appeal by writing to email@example.com
The risk to Ukraine's judicial system is great and time short. If you can help by supporting our appeal, and circulating it to others, we would be very grateful!
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