Scholars note that draft law No. 5068 provides the establishment of a new subject in the process of a competitive selection of candidates for election (appointment) as an HCJ member – Ethics Council and, respectively, the introduction of the procedure of election (appointment) to positions exclusively among candidates, who are recommended by the Ethics Council. “This threatens to narrow the content of the rights of constitutionally defined subjects of election (appointment) to positions of HCJ members”, – warn representatives of higher education institution.
After analyzing provisions regarding international experts within the composition of the Ethics Council, scholars of the Taras Shevchenko Kyiv National University emphasize that the draft law consolidates the dominance of representatives of international organizations in decision-making, after all, their vote in the Ethics Council will be more “legally valid” than vote of those appointed by the Council of Judges of Ukraine.
2. In a pandemic, the approval of the IJITS Regulation is urgent
The High Council of Justice on August 2, 2021, in the order of consultations with the Council of judges of Ukraine, held the first meeting regarding the discussion of the draft Regulation on the Integrated judicial information and telecommunication system. The Regulation on the IJITS is approved by the High Council of Justice by the submission of the State judicial administration of Ukraine and after consultations with the Council of Judges of Ukraine.
The High Council of Justice emphasized the importance of the approval of the relevant Regulation on the IJITS as soon as possible.
In the context of the COVID-19 pandemic, this issue is prior and urgent for the judiciary, after all, it is the fully-featured launch of electronic litigation that will not only speed up court proceedings but also help save money.
3. Three judges resigned
On August 3, 2021, the HCJ decided to dismiss due to the submission of an application for the resignation Rishko Hanna Ivanivna – from the position of the judge of the Vynohradivskyi district court of Zakarpattia region.
On August 5, 2021, the HCJ decided to dismiss due to the submission of applications for resignation:
Kuznetsova Iryna Leonidivna – from the position of the judge of the Central appellate commercial court;
Kaftanov Vitalii Volodymyrovych – from the position of the judge of the Irpin city court of Kyiv region.
After analyzing the draft law No. 5068, representatives of the university emphasized: “Based on the purpose of the Ethics Council, the goal of its formation concerns neither the selection of judges, nor the selection of prosecutors, nor their evaluation, consideration of cases regarding their disciplinary liability. Thus, the implementation of the institution in the justice system, which is not provided by the Constitution, is debatable”.
Experts draw attention that the High Council of Justice has constitutional status, that is, its status is much higher than the status of bodies and institutions provided by current legislation. “Establishment of control mechanisms for check of current members of the High Council of Justice contradicts the constitutional principle of the rule of law”, – legal scholars believe.
Representatives of the university came to conclusions:
- Ethics Council cannot have control powers regarding the High Council of Justice;
- current legislation already provides grounds for termination of powers of a member of the High Council of Justice (Article 25 of the Law of Ukraine “On the High Council of Justice”);
- currently, there is no court decision that indicates unethical or dishonest behavior of the current members of the High Council of Justice.
More details here.
More details here.
7. HCJ responded to interference in the activity of a judge of the Obolonskyi district court of Kyiv
Judge of the Obolonskyi district court of Kyiv notified the HCJ that the defendant in the civil case, which was in her proceedings, was dissatisfied with the actions of the judge and began to systematically threaten her.
The HCJ decided to address the Prosecutor General’s Office on the inspection, in accordance with the procedure established by the CPC of Ukraine, of the circumstances, given in the judge’s notification. Also, the HCJ decided to address the Court Security Service regarding the immediate taking of measures provided by law to ensure the personal safety of the judge and the protection of the premises of the Obolonskyi district court of Kyiv.
After analyzing the provisions of the draft law regarding the powers of the Ethics Council to establish the compliance of a candidate with the position of an HCJ member, scholars believe that this contradicts the main principles of rulemaking.
Legal scholars of the university note: “High Council of Justice is a constitutional body, the basic principles of formation of which should be enshrined exclusively in the Constitution of Ukraine and the Law of Ukraine “On the High Council of Justice”. And they also emphasize that the Ethics Council is not a legally defined body and cannot appropriate such functions, since part three of Article 131 of the Constitution of Ukraine states that “the procedure for election (appointment) to the positions of HCJ members is determined by law”.
Scholars of the Odesa I.I. Mechnykov national university came to conclusions that draft law No. 5068 does not comply with the norms of the Constitution of Ukraine, international standards, as well as the case-law of the European Court of Human Rights.
The petition was filed with the violation of the requirements specified by law, as copies of the petition and the materials attached to it were handed over by a prosecutor who was not authorized to hand over the petition to the judge on temporary suspension from administering justice in accordance to requirements of part four of Article 63 of the Law of Ukraine “On the High Council of Justice”.
10. HCJ will make a submission on appointing two candidates to positions of judges of commercial courts
On August 5, 2021, the High Council of Justice decided to make a submission to the President of Ukraine on appointing to positions in local courts:
BAZHANOVA Yuliia Andriivna – to the position of the judge of the Commercial Court of Dnipropetrovsk region;
ZARICHANSKA Zoiia Vitaliivna – to the position of the judge of the Commercial Court of Cherkasy region.
11. Procedure of secondment judges to two courts has begun
The High Council of Justice, according to the decisions of August 3, 2021, No. 1752/0/15-2 and No. 1753/0/15-21 announces the beginning of the procedure for seconding judges to another court of the same level and specialization for administering justice, namely to:
Kozivskyi district court of Ternopil region – 1 judge;
Rivne circuit administrative court – 3 judges.
Judges who expressed the wish to be seconded to mentioned courts must submit to the High Council of Justice within ten days (from the date of the announcement of the beginning of the procedure for seconding judges) necessary documents. The list of mentioned documents is here.
12. HCJ seconded a judge for administering justice to the Second appellate administrative court
The High Council of Justice on August 5, 2021, decided to second for administering justice judge of the Lviv appellate administrative court Bohachenko Serhii Ivanovych to the Second appellate administrative court from August 20, 2021, for the period of one year.
13. High Council of Justice is forced to terminate disciplinary proceedings
In order to prevent violations of current legislation, the High Council of Justice terminates the distribution of disciplinary complaints between members of the Council, and also complaints regarding decisions on bringing judge or prosecutor to disciplinary liability. The High Council of Justice made a corresponding decision.
On August 5, 2021, the Law of Ukraine of July 14, 2021, No. 1635-ІХ “On making amendments to certain legal acts of Ukraine regarding the procedure of election (appointment) to positions of members of the High Council of Justice and the activity of disciplinary inspectors of the High Council of Justice” came into force. The mentioned Law makes impossible the performance of powers by the Disciplinary Chambers of the HCJ regarding consideration of disciplinary cases, as the powers of the Council to conduct disciplinary proceedings against a judge are exercised by disciplinary inspectors’ service of the High Council of Justice, disciplinary inspector of the High Council of Justice is a participant of a disciplinary case.
Annual report “On ensuring judicial independence in Ukraine” contains an overview of the main problematic issues regarding the state of legal regulation in the field of justice, ensuring guarantees of judicial independence, and an analysis of cases of interference in the activity of judges regarding the administration of justice covers current issues of judicial independence and serves as an indicator of the current state of judicial independence.
Besides, the Annual report covers current issues of the judiciary of Ukraine. Thus, it states that among the priority problems that need to be urgently addressed is the lack of judges, who administer justice, shortage of staff in the courts and lack of material support.
Judge notified the HCJ that a lawyer appealed to the court with the petition, the content of which is reduced to a promise to provide money for acquittal of the accused in the criminal proceedings during the appellate proceedings.
The HCJ decided to address the Prosecutor General’s Office on providing information regarding disclosure and investigation of a crime in criminal proceedings, entered in the Unified register of pre-trial investigations by the signs of a criminal offense, provided by part one of Article 376 of the Criminal Code of Ukraine (interference in the activities of the judiciary), and to address the Qualification and disciplinary commission of the bar of Kharkiv region regarding bringing a lawyer to prescribed by law liability for actions that may show signs of interference in the activities of the judge of the Kharkiv appellate court.
More details here.
16. The term for granting judges’ consent for seconding to two courts has been extended
The High Council of Justice, according to the decisions of August 5, 2021, No. 1806/0/15-21 and No. 1807/0/15-21 extended till August 16, 2021, the term for granting judges’ consent for seconding to:
First appellate administrative court – 5 judges;
Oleksandriiskyi city district court of Kirovohrad region – 2 judges.
Judges who expressed the wish to be seconded to mentioned courts must submit to the High Council of Justice necessary documents by August 16. 2021. The list of mentioned documents is here.
17. Procedure of secondment judges to three more courts has begun
The High Council of Justice, according to the decisions of August 5, 2021, No. 1803/0/15-21, No. 1804/0/15-21, No. 1805/0/15-21 announces the beginning of the procedure for seconding judges to another court of the same level and specialization for administering justice, namely to:
Mezhyhirskyi district court of Zakarpattia region – 1 judge;
Umanskyi city district court of Cherkasy region – 2 judges;
Babushkinskyi district court of Dnipropetrovsk – 5 judges.
Judges who expressed the wish to be seconded to mentioned courts must submit to the High Council of Justice within ten days (from the date of the announcement of the beginning of the procedure for seconding judges) necessary documents. The list of mentioned documents is here.
The judge of the Vovchanskyi district court of Kharkiv region notified the HCJ about the interference in her activity as a judge regarding administering justice.
According to the judge, the Vovchanskyi district court of Kharkiv region received the petition from a lawyer on satisfying the claim. During the opening of the envelope, court staff found $ 400, which, in their opinion, looked like fake ones. Also, the lawyer noted in his petition that in case of a judgment in favor of the claimant, the judge will be awarded $ 4,000.
The HCJ decided to address the Prosecutor General’s Office on providing information regarding disclosure and investigation of a crime in criminal proceedings, entered in the Unified register of pre-trial investigations by the signs of a criminal offense, provided by part one of Article 376 of the Criminal Code of Ukraine, by facts, stated by the judge.
Besides, the HCJ decided to address the Qualification and disciplinary commission of the bar of Kharkiv region regarding bringing a lawyer to prescribed by law liability for actions that may show signs of interference in the activities of the judge of the Vovchanskyi district court of Kharkiv region.