The provisions of the draft law "On making amendments to certain laws of Ukraine on improving the procedure for appointing HCJ members and increasing the institutional capacity of the HCJ" contradict such elements of the rule of law as legal certainty and the prohibition of arbitrariness. This is emphasized in the HCJ's advisory opinion.
The norms of the draft law developed by the Ministry of Justice concerning the procedure of formation and activity of the Expert Commission for the Selection of Candidates for the Position of HCJ members (Commission) do not comply with the Constitution of Ukraine, conducting a competition for the preliminary selection of candidates for the position of HCJ member, one-time verification of current HCJ members for compliance with established ethical standards.
The draft law stipulates that the Commission will consist of three persons from among judges or retired judges, three persons appointed by the Public Integrity Council, three persons appointed by international and foreign organizations. It is planned that the Commission will hold a competition for the preliminary selection of candidates for the position of HCJ member separately for each subject of election (appointment). And also will conduct a one-time inspection of current members of the HCJ. The decision based on the results of the inspection on the non-compliance of the HCJ member with the ethical standards established for the judge will be subject to mandatory consideration by the subject of election (appointment) to resolve the issue of his/her dismissal.
In its opinion, the HCJ stressed the inadmissibility of creating a body that has no constitutional basis. After all, the Constitutional Court of Ukraine in its Decision of March 11, 2020 № 4-r/2020 concluded that the bodies (Integrity and Ethics Commission) established under a constitutional body, the law cannot give a control function over this constitutional body. The establishment of the Commission is not in line with the legislation of Ukraine and international standards.
In the norm of the draft law on delegation by the Minister of Justice of Ukraine of persons to the Commission (if the Council of Judges of Ukraine did not do so within the specified period), the HCJ sees an attempt by the executive body to interfere in the judiciary.
As the draft Law of Ukraine prepared by the Ministry of Justice of Ukraine "On making amendments to certain laws of Ukraine on improving the procedure for appointing HCJ members and increasing the institutional capacity of the HCJ» contradicts the norms of the Constitution of Ukraine, the High Council of Justice does not support it.
On September 11, 2020, on the initiative of the High Council of Justice, a Memorandum of Cooperation was signed between the HCJ and the Odessa I.I. Mechnikov National University. On behalf of the HCJ, the document was signed by the Deputy Chairman of the High Council of Justice Oleksii Malovatskyi, on behalf of the university - the rector of the Odessa I.I. Mechnikov National University Ihor Koval and Dean of the Faculty of Economics and Law Viacheslav Truba.
The Memorandum of cooperation provides a legal basis for the establishment and development of long-term relations between institutions in order to enhance professional cooperation and practical cooperation in the field of analysis of legislation relating to the judiciary, implementation of joint scientific and legal measures aimed at discussing topical issues of law enforcement and exchange of experience.
Within the framework of cooperation, the parties agreed on the passage of students, graduate students, doctoral students and research and teaching staff of educational, research and undergraduate practice in the High Council of Justice, assistance from the HCJ representatives in collecting materials by university staff and students for the preparation of scientific papers.
It is planned that members of the High Council of Justice will take part in the educational process of the Faculty of Economics and Law of the Odessa I.I. Mechnikov National University.
It is necessary to unite courts by districts within the framework of administrative-territorial reform, taking into account the workload of the relevant court in order to ensure equal opportunities for citizens to access justice. This is stated in the advisory opinion on the draft law "On making amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" regarding the territorial jurisdiction of local courts in Ukraine before the adoption of the law on changing the system of local courts in Ukraine in connection with the formation (liquidation) of areas” (No. 3025а).
The draft law is designed to align the number of courts in Ukraine with the number of newly created districts. It proposes to supplement the Law of Ukraine "On the Judiciary and the Status of Judges" with a provision according to which, prior to the adoption of a law that will change the court system, local courts continue to exercise their powers within the previously defined territorial jurisdiction (but not later than till January 1, 2022).
After the adoption by the Parliament of the Resolution "On the formation and liquidation of districts" there was a change in the administrative-territorial structure - from 490 districts 136 new districts were formed. The new system requires a change in the existing network of courts.
In its opinion the HCJ states that today it needs to address the issue of territorial jurisdiction as a matter of priority, as the new system at the district level has complicated the work of courts due to the uncertainty of territorial jurisdiction in criminal proceedings and civil cases, as well as cases of administrative jurisdiction subject to local general courts as courts of first instance.
The High Council of Justice in general supported the draft law, but drew attention to the need for clear legal definition of its provisions.
During the meeting on September 11, 2020, a bilateral document on cooperation was signed by the Deputy Chairman of the High Council of Justice Oleksii Malovatskyi and the President of the National University “Odesa Law Academy” Serhii Kivalov.
Partnership between institutions provides the activation of professional interaction and practical cooperation in priority areas of mutual interest, in particular:
- organization and holding of various training events aimed at discussing topical issues of law enforcement and exchange of experience;
- analysis of legislation concerning the judiciary;
- internship at the High Council of Justice by students, scientific and scientific-pedagogical staff of the university;
- assistance in finding and collecting the necessary material for writing scientific articles;
- participation of members of the High Council of Justice in the educational process of the university, etc
On September 14, 2020 an online meeting was held in the High Council of Justice with members and experts of the Venice Commission who are involved in the preparation of an opinion on compliance with European standards of the Presidential draft law No. 3711 “On making amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” and some laws of Ukraine on the activity of the Supreme Court and judicial governance bodies”.
The Chairman of the High Council of Justice Andrii Ovsiienko drew the attention of the Commission's representatives to the fact that draft law No. 3711 is not in fact a reformist one. First of all, it is aimed at solving the problems that arose as a result of the adoption in October 2019 of the Law of Ukraine No. 193-ІХ. The key one, according to Andrii Ovsiienko, is the violation of one of the main principles of the state body's activity - its continuous performance of its functions. «Having terminated the powers of the members of the High Qualification Commission of Judges of Ukraine and determined a new procedure for its formation, the law did not ensure the uninterrupted functioning of the HQCJU. Thousands of judges who have not completed the qualification assessment procedure remain hostages to this situation. At present, competitive selection is not possible for positions in courts of first instance, and especially for positions in courts of appeal, which are currently in a critical situation» – explained Andrii Ovsiienko.
Another important issue to be addressed by the draft law No. 3711 is the regulation of the Supreme Court of Ukraine, its status as a legal entity and a body of state power and, accordingly, the regulation of the status of judges of the SCU.
Andrii Ovsiienko emphasized that the draft law No. 3711 is aimed at bringing the provisions of the legislation of Ukraine in line with the decisions of the Constitutional Court of Ukraine from February 18, 2020 No. 2-r/2020 and from March 11, 2020 No. 4-r/2020, as well as to improve the procedure for the formation and operation of judicial governance bodies.
Responding to questions from representatives of the Venice Commission on the legislative initiative of the Ministry of Justice of Ukraine "On making amendments to certain laws of Ukraine on improving the appointment of HCJ members and increasing HCJ institutional capacity", the HCJ Deputy Chairman Oleksii Malovatskyi said that the High Council of Justice had recently issued an advisory opinion regarding it. The main idea of this legislative initiative is to restore the provision contained in the Law of Ukraine № 193-IX and which the Constitutional Court declared unconstitutional, said Oleksii Malovatskyi. It is a question of creation within the HCJ of the Commission on integrity and ethics which in the draft law of the Ministry of Justice is offered, having endowed with practically the same powers, and to name it the Expert commission on selection of candidates for a position of the HCJ member. Its main function is to control the members of the HCJ and HQCJU.
For more than a year, more than 300 candidates to the position of judge have been in a state of uncertainty due to incomplete competition procedures. This was stated by the Chairman of the High Council of Justice Andrii Ovsiienko in an interview with the Interfax-Ukraine News Agency, answering questions about the relevance of the draft law No. 3711, the adoption of which will allow to form the High Qualification Commission of Judges of Ukraine and unblock the process of filling the courts with staff.
«The competition to fill more than three hundred judicial vacancies remained unfinished. Candidates passed nine months of training at the National School of Judges of Ukraine, the state spent millions of hryvnias from the budget to pay them scholarships. Candidates have passed all competitive selection procedures, including exams. However, due to the termination of the powers of the HQCJU, the competition entries of candidates for judges were not checked. At that stage, the procedure for their selection stopped. Meanwhile, this staff could fill the judiciary», – noted Andrii Ovsiienko.
As it is known, in November last year came into force the Law of Ukraine № 193-IX "On the Judiciary and the Status of Judges" and some laws on the activity of judicial governance bodies. This Law terminated the powers of the members of the HQCJU without a transitional period, as a result of which all procedures initiated and conducted by the Commission were terminated. In particular, the qualification assessment of judges, appointments to positions, competitions for filling vacant positions were blocked.
It should be reminded, in March 2020 the Constitutional Court of Ukraine by its Decision (№ 4-р/2020) declared unconstitutional certain provisions of the Law of Ukraine No. 193-IX, which amended the Law of Ukraine "On the Judiciary and the Status of Judges" and some laws on the activity of judicial governance bodies. The draft law No. 3711 should correct the shortcomings caused by previous amendments and bring the legislation in line with the Constitution and the CJU Decision.
The HCJ Chairman expressed hope that the draft law No. 3711 will be adopted in the near future and HQCJU will begin its work.
The High Council of Justice, in accordance with the decision of 8 September 2020 №2585/0/15-20, announces the beginning of the procedure for seconding judges to another court of the same level and specialization for administering justice, namely to:
- Chervonozavodskyi district court of Kharkiv – 5 judges;
- Zolochivskyi district court of Kharkiv region – 1 judge.
The development of mediation in Ukraine will help unload the courts, ensure better access of citizens to justice, solve the problem of violation of terms of consideration of cases and, accordingly, reduce the number of complaints against judges to the High Council of Justice. This was stated by a member of the High Council of Justice Larysa Shvetsova, speaking at the presentation of the gap-analysis of the implementation of the institute of mediation in Ukraine.
The Deputy Chairman of the High Council of Justice Oleksii Malovatskyi participated in an online discussion «And where are the judges? Staff shortages in the period of reforms», organized by the Ukrainian Advocates’ Association.
Currently, every third judge position is vacant, and about 30% of judges have the right to resign, which endangers the observance of reasonable time limits for the consideration of cases and the provision of the right of citizens to access to justice.
During his speech, the Deputy Chairman of the HCJ once again outlined comprehensive steps to address the problem of staff shortages, among which, first of all:
- launch of the High Qualification Commission of Judges of Ukraine and resumption of qualification assessment procedures;
- determination of the maximum workload of judges;
- quality procedural legislation;
- implementation of judicial precedent in the legal system of Ukraine.
Effective selection of judges is also a priority step. To ensure quick access to the profession of judge, it is proposed to optimize competition procedures and implement the possibility of introducing independent evaluation centers for judges in appellate districts.
More details in the video: https://bit.ly/3mpjspm
From January to August 2020, the High Council of Justice decided to dismiss 186 judges. On general circumstances 164 judges were dismissed: 163 – in connection with the submission of applications for resignation; 1 – in connection with the submission of application for voluntary dismissal.
On special circumstances 22 judges were dismissed: 19 – for significant disciplinary misconduct, 3 – due to their recognition by the results of the qualification assessment as not corresponding to the position held.
Additionally, we inform that as of September 11, 2020, the actual number of judges in the courts of Ukraine is 5,385 judges with a defined number of 7,295 judges. 4820 judges have the power to administer justice. The number of vacant positions of judges is 1910.
When discussing the issue of trusting the courts, it is necessary to use numbers and facts. This was emphasized by the Deputy Chairman of the High Council of Justice Oleksii Malovatskyi during an online discussion «And where are the judges? Staff shortages in the period of reforms», organized by the Ukrainian Advocates’ Association.
He noted that the percentage of violations committed by judges during the proceedings is paltry: «According to our information, in 2019 courts of first and appellate instances received 3.9 million cases. 3.8 million cases were considered. The HCJ received about 6,000 complaints against judges. Compare – almost four million cases and six thousand complaints about biased approach, prejudgment of judges, wrong dispute resolution. Of these six thousand complaints, about 80% were improperly filed, filed with violation of the established procedure, which served as a basis for their return to the complainant. Of the remaining complaints received in 2019 and by which we initiated proceedings, the grounds for disciplinary liability were in 60 cases. 60 HCJ decisions on bringing judge to liability – only one percent of the total number of complaints against judges. Therefore, allegations of distrust to the judiciary are ungrounded».
The High Council of Justice according to decisions from September 15, 2020 No. 2627/0/15-20, 2628/0/15-20, 2629/0/15-20, 2630/0/15-20, 2631/0/15-20, 2632/0/15-20 announces the beginning of the procedure for seconding judges to another court of the same level and specialization for administering justice, namely to:
Volodymyr-Volynskyi city court of Volyn region – 4 judges;
Zhashkivskyi district court of Cherkasy region – 2 judges;
Zhovtnevyi district court of Zaporizhzhia – 4 judges;
Kalynivskyi district court of Vinnytsia region – 1 judge;
Leninskyi district court of Kirovohrad – 5 judges;
Stanychno-Luhanskyi district court of Luhansk region – 5 judges.
On September 17, 2020, the High Council of Justice considered the materials on the dismissal of judges on general grounds, namely in connection with the submission of resignations.
The HCJ decided to dismiss in connection with the resignation Tetervak Nadiia Andriivna from the position of the judge of the Ivankivskyi district court of Kyiv region and Neshyk Raiisa Illivna from the position of the judge of the Vinnytsia appellate court.
The HCJ decided to reject in resignation Tymchenko Olha Vasylivna from the position of the judge of the Novotroiitskyi district court of Kherson region due to the lack of length of service required for resignation.
On September 17, 2020 the High Council of Justice decided to make a submission to the President of Ukraine on appointing to positions in local courts:
- DUNAIEVSKA Daria Leonidivna – to the position of the judge of the Shevchenkivskyi district court of Kyiv;
- ZASTOROZHNIKOVA Kateryna Serhiivna – to the position of the judge of the Solomianskyi district court of Kyiv;
- KOLISNYK Larysa Oleksandrivna – to the position of the judge of the Kanivskyi city district court of Cherkasy region.
Online broadcast of the session at the link: https://bit.ly/2FHWAk0.
The High Council of Justice during the first eight months of 2020 decided to make submissions to the President of Ukraine on appointing to positions 440 judges to local general courts, two judges – to local economic courts, one judge – to local appellate court.
From the statement of the problem of chronic underfunding of the judicial system it is necessary to proceed to its solution. This was emphasized by the Chairman of the High Council of Justice Andrii Ovsiienko during the meeting of the Verkhovna Rada Committee on Legal Policy, which took place on September 16, 2020 in the format of a video conference.
According to the SJA of Ukraine, as of today the total deficit of funding for the judiciary is 2 billion 292.9 million hryvnias.
In order to pay salaries to the staff, some courts were forced to register accounts payable at the State Treasury. (this amount is about 60 million hryvnias).
Andrii Ovsiienko stressed that even during the formation of the state budget for 2020, the HCJ repeatedly stressed that it lays a critical limit on the financing of the judiciary. The High Council of Justice drew attention to this when submitting proposals to the draft Law of Ukraine "On the State Budget of Ukraine for 2020".
Andrii Ovsiienko informed that the HCJ has repeatedly appealed to the Cabinet of Ministers of Ukraine, the Ministry of Finance of Ukraine, the Prime Minister with a request to initiate regular changes to the 2020 state budget to meet the needs of local and appellate courts.
Andrii Ovsiienko stressed that the problems caused by insufficient funding need to be solved quickly. According to him, accounts payable to employees of judicial institutions are unacceptable.
«The creation of the High Council of Justice as it stands is based on European best practices», – noted the Chairman of the High Council of Justice Andrii Ovsiienko, speaking in front of the participants of the webinar «Regulation of work and appointments in judicial bodies - differences in approaches in EU countries», organized by the National School of Judges of Ukraine together with the European Union Advisory Mission.
Representing the composition and structure of the HCJ to foreign colleagues, Andrii Ovsiienko said that the Law of Ukraine "On the High Council of Justice", which entered into force on January 5, 2017, created a qualitatively new body of judicial governance with broad powers. It is called to take care not only of all issues of judicial career, but also of solving problematic aspects in the activity of the judicial system as a whole, to ensure cooperation between all state bodies in the field of justice, to protect the independence of the judiciary and to maintain the high authority of the judiciary in Ukraine.
«As a result, a body free of political influence was created, which, being independent of the legislature and the executive powers, is responsible for the career of judges, which is a guarantee of both the independence of the judiciary in general and the independence of each individual judge in particular», – noted the Chairman of the High Council of Justice.
During January-August 2020, the High Council of Justice received 6,831 complaints regarding judge's disciplinary misconduct (for the same period in 2019 - 6453 complaints).
During this period, the Disciplinary Chambers and HCJ members completed the consideration of 9,545 disciplinary complaints, including those received in previous years. In 2019, for the same period, 9527 complaints were considered.
By the results of the consideration of disciplinary complaints, the Disciplinary Chambers adopted 1,300 decisions, of which:
151 decisions on returning a disciplinary complaint by rulings of the Disciplinary Chambers (for the same period in 2019 – 93);
672 decisions on refusal in opening a disciplinary case or leave the application without consideration (for the same period in 2019 – 492);
327 decisions on opening a disciplinary case (for the same period in 2019 – 185);
82 decisions on bringing judges to disciplinary liability (for the same period in 2019 – 105);
68 decisions on refusal in bringing judges to disciplinary liability and closing of disciplinary proceeding (for the same period in 2019 – 108).
During January-August 2020, the High Council of Justice received 231 reports of interference in the professional activities of judges regarding administering justice, of actions that violate the guarantees of the independence of judges or undermine the authority of justice. During the same period in 2019, the HCJ received 298 such reports.
Based on the results of consideration of 157 reports of judges on interference, the Council approved 131 conclusions of HCJ members on the lack of grounds for taking measures to ensure the independence of judges and the authority of justice.
Based on the results of the examination of 55 reports of judges, the HCJ members adopted 38 decisions on taking measures to ensure the independence of judges and the authority of justice.
The High Council of Justice receives appeals from courts regarding the need to implement the Decision of the Constitutional Court of Ukraine from August 28, 2020 No. 10-р/2020.
The Constitutional Court of Ukraine declared unconstitutional certain provisions of mentioned resolution and laws, pointing out that the restriction of the relevant payments is permissible under martial law or state of emergency. At the same time, in the opinion of the CCU, such restrictions should be introduced proportionally, with a clear timeframe and in strict accordance with the Constitution and laws of Ukraine. Such a restriction may also apply to judges, but after its expiration the funds lost in this connection must be compensated by appropriate payments, as the judge's remuneration is an integral part of the status of a judge defined by the Constitution of Ukraine.
As the provisions of Law № 294-IX, Law № 553-IX are declared unconstitutional, they become invalid from the date of the Constitutional Court's decision, and from August 28, 2020 restrictions on the payment of judges' fees cannot be applied.
The High Council of Justice appealed to the main administrators of the State Budget of Ukraine regarding the financial support of the courts (State Judicial Administration of Ukraine, Supreme Court, High Anti-Corruption Court), as well as to the Council of Judges of Ukraine and the National School of Judges of Ukraine with a request to inform the position on ensuring the implementation of the Decision of the Constitutional Court of Ukraine of August 28, 2020 № 10-r/2020 regarding the compensation payment to judges.
The provisions of the draft Anti-Corruption Strategy for 2020-2024 developed by the National Agency for the Corruption Prevention, concerning the regulation of the judiciary and the status of judges, cannot be used as a basis for changing the legislation, as they contradict the current constitutional regulation of public relations. This conclusion can be drawn from the decision of the High Council of Justice on approving the position of the HCJ on the results of summarizing the proposals of courts, bodies and institutions of the justice system regarding the draft strategy.
Read more here.
Public authorities and their officials should refrain from information and political campaigns, statements and actions that could affect the independence of the judiciary and undermine the authority of the judiciary as a whole. This was emphasized in the HCJ's public address on the statements of Olha Stefanishyna, the Vice Prime Minister for European and Euro-Atlantic Integration of Ukraine. As it is known, in an interview with RBC-Ukraine, the official assessed the judicial system of Ukraine, noting the "lack of confidence in judges and their decisions."
The High Council of Justice emphasizes that respect the authority of the courts is a requirement of European standards for democratic states, an integral condition of public trust in the judiciary, and in a broader sense - trust in the rule of law and the state in general.
Assessing the level of trust in the judiciary, the Vice Prime Minister referred to the fact that most court decisions of the first instance "go on appeal". In this connection, the HCJ draws attention to the fact that the annulment of the decision should be perceived as a normal result of the appeal procedure, and not as the fault of the judge of the first instance (Opinion No. 6 of the CCJE to the attention of the Committee of Ministers of the Council of Europe on fair trial within a reasonable time and judge’s role in trials taking into account alternative means of dispute settlement from November 24, 2004). Participants in the case, which is the subject of the trial, and other persons have the right to an appellate review of the case and in cases specified by law - to cassation appeal of a court decision (Article 14 of the Law of Ukraine “On the Judiciary and the Status of Judges”). Therefore, the exercise of such a right by a person is not a factor of trust in the judiciary.
The High Council of Justice considers inadmissible political comments of public figures and representatives of executive bodies, who in their speeches, in the absence of objective and specific information on the level of trust in the judiciary and the impact of judicial reforms on it, form a misconception in society about the activities of judges and the judiciary in general.
«The level of trust in the judiciary is affected, inter alia, by unsubstantiated statements by politicians and statesmen that threaten the authority of the judiciary», – it is said in the public address of the High Council of Justice and emphasizes that representatives of other branches of power should refrain from any action or statement which may be perceived as a tool to put pressure on the judiciary or to call into question their ability to carry out their duties effectively.
Decision of the High Council of Justice from September 17, 2020, No. 2657/0/15-20: https://hcj.gov.ua/doc/doc/4227
Public statements of the Supreme Court, commenting on the materials of criminal proceedings against judges of the Circuit Administrative Court of Kyiv, regarding whom decisions of the High Council of Justice were made, are an assessment given in a manner not provided by current legislation. Such statements do not affect the content or legal consequences of the decisions made by the High Council of Justice and introduce inappropriate politicization of the processes in the judiciary. Audio recordings, regarding which statements were made, were published by the National Anti-Corruption Bureau of Ukraine two months ago. Therefore, giving them assessment today seems strange on the part of Supreme Court judges.
The Supreme Court reviews such decisions in the manner prescribed by applicable procedural law. A judge may not make public statements, comment in the media on the materials or the course of cases pending before the court, and question court decisions that have entered into force. The judge has no right to disclose information that became known to him in connection with the case.
The High Council of Justice looks forward to the official publication of the full text of the decision of the Plenum of the Supreme Court, which was circulated in the press today, for further comments.