Appeal to the Government of Ukraine, by NGO Representatives and Legal Activists: Regarding Restoration of Confidence in the Judicial System
Distrust of Ukrainian courts – the judicial system as a whole and of each judge in particular – is a sensitive topic for everyone in Ukraine. Despite the numerous events that have taken place during recent months, aimed at reforming the judiciary and restoring confidence in the court system, the level of trust continues to be low. Instead of the promised progress, we are seeing the return of the old methods of control over the judiciary.
State authorities should increase their efforts to convince the public of their intention to guarantee every person in Ukraine the right to a free and fair trial.
1. The Law ‘On Restoring Confidence in the Judicial System’ has started modernizing the judiciary. However, the mechanisms proposed by this law have proved inadequate: people who previously held the positions of chairpersons in courts are returning; judges who were dismissed for violations of human rights cases will be reinstated; procedures for convening and holding the Congress of Judges need to guarantee fair and transparent and decisions.
Bill number 4829, on Amendments to Legislative Acts of Ukraine (concerning improvement of measures to restore confidence in the judiciary), has been registered in the Verkhovna Rada: this sets out that former chairpersons of courts be prohibited from holding these positions for at least three years; transparent mechanisms for convening and forming the Congress of Judges; clear procedures for convening congresses at law schools for the election of members of the High Council of Justice and the Highly-Qualified Commission of Judges; necessary changes in the system for disciplining judges – arising from decisions of the European Court of Human Rights in the case ‘Alexander Volkov against Ukraine’. We call for a quick adoption of this bill.
2. Reluctance by former heads of the judicial system to give up control is preventing the effective implementation of the Law ‘On Restoring Confidence in the Judicial System’. The above-mentioned former members of the High Council of Justice and the Highly-Qualified Commission of Judges have discredited Ukrainian courts. Persons who held positions in these bodies have been removed in accordance with the Law ‘On Restoring Confidence in the Judicial System’, without the right to ever hold office in the future. Today, they are tending to return, using a variety of excuses.
The Verkhovna Rada has registered a number of bills (including numbers 4515, 4771) which aim to lift restrictions imposed on the former members of the High Council of Justice, the Highly-Qualified Commission of Judges and the chairpersons of the courts. At the same time, all these bills are subject to the Committee of the Verkhovna Rada of Ukraine [on the Rule of Law and Justice]: still chaired by Deputy [MP] Serhiy Kivalov.
In our opinion Serhiy Kivalov, Chairman of this Committee, does not meet the professional and moral qualities required of the Head of the Committee on the Rule of Law and Justice. His work as a Deputy, as a state official and as a public figure shows disregard by Mr. Kivalov for the norms of the Constitution, the principles of human dignity and rule of law as the fundamental principle of the Constitution of Ukraine.
In particular, in the case of the European Court of Human Rights case ‘Alexander Volkov against Ukraine’, Serhiy Kivalov was the personification of undue influence on the judiciary: as a member of the High Council of Justice, as Chairman of the Verkhovna Rada of Ukraine [Committee] on the Rule of Law and Justice, and directly as a Deputy of Ukraine – and, during his tenure, his office dismissed judge Alexander Volkov.
In addition, more than 300 newly elected judges are now expected to take the judge’s oath. The Chairman of the Verkhovna Rada Committee on the Rule of Law and Justice is expected to be present at the taking of the oath. We believe that, given the expectations of society about reform of the judicial system, expecting the newly elected judges to take the oath before Serhiy Kivalov – who represents a threat to the independence of the justice system – is unacceptable.
Thus, in our opinion, the continued presence of Serhiy Kivalov in positions in government and in Ukraine’s mission to the Venice Commission not only discredits Ukraine in the eyes of the European community and undermines the authority of both the Venice Commission and national government institutions in the eyes of Ukrainian citizens, but poses a threat to the interests of the Ukrainian state.
3. Organizations that will impact the fate of Ukrainian courts and Ukrainian judges, as well as the independence and effectiveness of the judicial system, are being created. The Congress of Judges of Ukraine, scheduled for June 19 and 20, will choose 55 people who will affect the fate of the judicial system: 6 judges of the Constitutional Court of Ukraine, 3 members of the High Council of Justice, 6 members of the Highly-Qualified Commission of Judges of Ukraine and 40 members of the Council of Judges of Ukraine. We hope that this congress of judges will take into consideration the moral and professional qualities of candidates for these positions; and will be transparent in their nomination and election.
Following the statement above, we call for the following:
1. That the Verkhovna Rada of Ukraine – heads of parliamentary factions within the coalition, and Rada Deputies of Ukraine:
Consider and adopt Bill 4829, in order to prevent the return of both the previous heads of the judiciary and their methods;
Prevent the adoption of laws that allow for the return to leadership of the judiciary persons removed by the Law ‘On Restoring Confidence in the Judicial System’;
Initiate the recall of Serhiy Kivalov as Chairman of the Verkhovna Rada Committee on Justice and the Rule of Law;
2. That the President of Ukraine:
Apply to the Commission for Democracy through Law (Venice Commission) with a proposal to consider the removal of Serhiy Kivalov (a member of the Venice Commission of Ukraine) and Volodymyr Pylypenko (an alternate member of the Commission of Ukraine) from performing their professional duties;
3. That the Cabinet of Ministers through the Ministry of Justice of Ukraine:
Apply to the courts, to ban the Ukrainian public organization ‘Council of Representatives of Higher Legal Educational and Scientific Institutions’;
4. That the Council of Judges of Ukraine and the Congress of Judges of Ukraine:
Ensure transparency of the Congress of Judges, including full media access and live broadcasting;
Ensure a transparent procedure for the nomination of candidates for all positions, and hold candidates to the highest ethical and professional standards;
Provide a transparent voting procedure and vote counting.
June 13, 2014
1. Hanna Hopko, Reanimation Package of Reforms
2. Oksana Syroyedov, Ukrainian Legal Foundation
3. Roman Kuibida, Center for Political and Legal Reforms
4. Svitlana Kononchuk, UNTSPD
5. Vitaliy Shabunin, Center for Combating Corruption;
6. Iryna Bekeshkina, Democratic Initiatives Fund – named after Ilka Kucheriv
7. Viktor Taran, Center for Political Studies and Analysis
8. Svitlana Mishura, Attorney
9. Larysa Denysenko, Attorney
Translated by Nata Vaska, edited by Jon Barrow