On June 2, 2016, the Parliament of Ukraine finally adopted important amendments to the Constitution of Ukraine in the sphere of justice and jurisprudence, which had been proposed by the President of Ukraine. The amendments aim at implementing a major judicial reform in the country, which shall include purging its courts from corrupt judges appointed under previous governments. The changes shall come into force three months after their official publication (in September 2016).
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Below please find a summary of the most important constitutional changes.
1. Organization of the judicial system
Supreme Court of Ukraine
The role of the Supreme Court of Ukraine is substantially strengthened: it shall be the highest court in the judicial system. The highest specialized cassation courts are no longer mandatory, but those may be set up by a parliamentary law.
Supreme Council of Justice
Further, the amendments provide for the establishment a new constitutional body – a Supreme Council of Justice – instead of the existing Supreme Judicial Council. The majority of its 21 members (11) shall consist of judges. Its functions shall include, in particular:
nomination of candidates to judges’ positions;
dismissal of judges (which currently falls into the competence of the Parliament and President), their temporary suspension from duty;
giving consent to the detention (arrest) of a judge (which is currently in the competence of the Parliament).
Establishment of courts
The authority to set up, reorganize and liquidate courts is transferred from the President to the Parliament (starting from 2017) and is done by virtue of a parliamentary law.
Appointment of judges
The authority to appoint judges will be reserved exclusively to the President of Ukraine upon nomination from the Supreme Council of Justice. The Parliament will no longer participate in this process.
Except for the Constitutional Court, all judges will be appointed for an indefinite term (until they reach the age limit of 65 years), whereas under the existing Constitution, the initial tenure of office is limited to five years subject to re-election.
Importantly, a competitive procedure shall precede an appointment of a judge (not required now).
2. Status of judges
New eligibility requirements
The new provisions have toughened the requirements to a candidate for office of a judge. The minimum age has been increased from 25 to 30 years, whereas professional legal experience – from three to five years (from 10 to 15 years – for judges of the Constitutional Court). The other new mandatory personal criteria of the candidate are honesty (high morale) and professional competence.
All incumbent judges appointed (elected) prior to the enactment of the constitutional amendments on the judicial reform shall undergo a test of professional adequacy according to a procedure to be stipulated by a special parliamentary law. Judges who fail to prove their adequacy based on competence, professional ethic, and honesty (high morale), as well as those who refuse to undergo the test, shall be dismissed. This provision is intended to clean the existing court system from corrupt judges.
The immunity of judges shall be limited only to decisions they adopt, except for a criminal or disciplinary offence.
A judge may be detained without consent of the Supreme Council of Justice if caught in the act of committing a grave criminal offence or immediately after having committed it. Currently, consent of the Parliament is required for any detainment of the judge.
Reasons for dismissal
The amendments strike out one of the highly criticized reasons for dismissal of judges, namely, the breach of oath. It was widely misused to get rid of judges who did not prove their loyalty to public officials. Instead, a judge shall be dismissed for a substantial disciplinary offence, gross or systematic neglect of his official duties, which is incompatible with his status as a judge or proves his professional inadequacy. The other new ground to dismiss a judge called to combat corruption in the judicial system is the failure to prove the legal origin of his property.
The legal institute of jurors shall be unified and absorb the so called “people’s assessors”. It should be noted that the jury trial has not been put into practice since the adoption of the Constitution in 1996.
3. Jurisdiction of courts
The constitutional amendments redefine the jurisdiction of courts and limit it to legal disputes and criminal charges. Other matters are subject to the courts’ jurisdiction only if explicitly provided by law. In contrast, under the effective Constitution courts are competent to consider any legal relationship.
Foundations of administering justice
While administering justice, a judge shall abide by the rule (supremacy) of law in general, not just follow provisions of positive law (as the case is now).
The amendments also implement one of the essential procedural guarantees of article 6 of the European Convention for the Protection of Human Rights, i.e. a reasonable term for the consideration of a court case.
Parliamentary laws may prescribe a mandatory pretrial settlement procedure of certain disputes, which is voluntary under the effective legislation.
Cassation no longer guaranteed
Importantly, the guarantee of cassation review (i.e., on the matter of law) of court decisions is abolished. With the changes, such review will only be available if provided for by a parliamentary law (procedural code).
The Constitutional Court will no longer be entitled to provide for official interpretation of parliamentary laws. Its interpretational authority will be limited to the Constitution only. At the same time, the Court’s jurisdiction will encompass the constitutionality of questions put on referendum.
In addition, individuals shall have the right to lodge a constitutional complaint with the Constitutional Court if a parliamentary law is, in their view, breaching the Constitution, whereupon the Court may declare such law unconstitutional (currently, individuals may submit only requests for interpretation of the Constitution). An individual may exercise this right provided all other available legal remedies (an ordinary court procedure) have been exhausted. A special parliamentary law shall govern the procedure for exercising this right. This novelty corresponds to the practice of many European countries providing for a constitutional complaint as the last resort of individuals to protect their rights. However, the question remains whether legal entities may exercise this right alongside individuals.
Finally, the Constitutional Court will be able to determine the moment from which an unconstitutional legal act becomes ineffective, which cannot have a retrospective effect, though.
International Criminal Court
The amendments also lay the foundation for the recognition of the jurisdiction of the International Criminal Court according to the Rome Statute. A decade ago, the Constitutional Court ruled out this option due to inconsistency with the Constitution.
4. Public prosecution
Functions of the public prosecutor’s office
Under the judicial reform, the role and functions of the public prosecutor’s office shall be substantially revised. Alongside the traditional prosecution of indictment in court, a prosecutor’s functions shall include:
organization of and administering pretrial investigation;
supervision of investigative and search activities carried out by law enforcement agencies;
representation of the interests of state in court only in exceptional cases determined by law.
With the amendments, the public prosecutor’s office will no longer be entitled to represent individuals in court, to supervise the execution of court decisions (the latter is delegated to courts themselves) and of restrictive measures applied to individuals, as well as to supervise the compliance with human rights and freedoms by state bodies.
Status of the General Prosecutor
The constitutional changes strengthen the independence of the General Prosecutor of Ukraine: the Parliament may no longer impeach him (by vote of no confidence); he can be dismissed by the President only on grounds set out by law (not just at his own discretion). Finally, the tenure of office has been increased from five to six years.
5. The Bar
Exclusive right for court representation
The constitutional amendment with the most far-reaching impact on the legal practice concerns the status of the Bar. Only qualified advocates admitted to the Bar will be entitled to represent clients (both individuals and legal entities) in court. As of now, any legal professional (not only licensed advocates) may undertake such representation, except for criminal cases.
However, a parliamentary law may set exceptions from this new exclusive right of advocates. The exceptions may concern only labor, social, election, and minor legal disputes.
The exclusive representation right of advocates will become effective gradually after a transitional period: starting 2017 – for the Supreme Court and courts of cassation; 2018 – courts of appeal; 2019 – first instance courts.