Director of Human Rights in the Council of Europe’s Directorate General Human Rights and Rule of Law
Special Advisor of the Secretary General (SASG) for Ukraine
Christos Giakoumopoulos

 

Dear Mr. Giakoumopoulos!

The official website of the President of Ukraine (please see the link below: http://www.president.gov.ua/news/31947.html) contains information on Your positive assessment of Mr. Poroshenko’s initiative concerning judicial system reform in full compliance with the position, guidelines as well as standards of the Council.
At the same time I would like to point out that such position is inconsistent with the standards of European institutions, which were promoted in Ukraine over years. These European standards are about reforming judicial system in full compliance herewith through primary changes in the Constitution of Ukraine.
Particularly, in the the section 119 of the Joint Opinion of the Venice Commission CDL-AD (2010) 003 as of 16 March 2010 it is stipulated that “the Commission recommends to confine judicial reform not to the legislative level but to undertake a profound constitutional reform, aiming to lay down the solid foundation for a modern and efficient judiciary in full compliance with European standards”.
The subsection 7.3.3 section 7.3 of the Parliamentary Assembly of the Council of Europe Resolution No. 1755 (2010) contains opinion of the Assembly which considers that “without constitutional amendments it will not be possible to reform the judiciary in line with European standards and values”.
In the subsection 6.5 of the section 6 and in the section 13 of the Parliamentary Assembly of the Council of Europe Resolution No. 1755 (2010) contains opinion of the Assembly which considers that “it will not be possible to implement the reforms necessary for Ukraine to meet its commitments to the Council of Europe without first reforming the current constitution”.
Besides the conclusion made concerning full compliance of the amendments introduced by the President of Ukraine with the European standards and guidelines, seems unclear. It is not known if there is an official conclusion of the European institutions containing analyses of the draft amendments subject to international judicial standards.
Moreover the abovementioned draft was not even analyzed by the experts of the European Commission “For Democracy through Law” (the Venice Commission). Although that particular authority was mentioned in the conclusion while assessing the compliance of the draft amendments to European standards.
In confirmation of all abovementioned, the provisions of the item 6 of the Resolution No. 1755 (2010) of the Parliamentary Assembly of the Council of Europe stipulate that close cooperation with the European Commission for Democracy through Law (Venice Commission) is crucial to ensure that the legislative reform packages that are currently being developed are fully in compliance with the European standards and values. Therefore such cooperation encourages the authorities and leadership of Ukraine to ensure that the Venice Commission should be asked for an opinion on the final versions of draft laws before they are adopted in a final reading.
The item 10 of the Parliamentary Resolution dated 25 November 2010, contains indication to the need of Ukrainian authorities to turn to Venice Commission for the obtaining opinions on the final versions of the draft laws.
The European Parliament also indicated in item “d” of the Resolution dated 24 May 2012 that the judicial reform aimed at procuring of the fair, impartial and independent trial should be implemented in close cooperation with the Venice Commission.
Taking into account Your kind dedication to the establishment of fair and impartial trial in Ukraine as well as following guidelines and conclusions of the European institutions, I suppose that the information published on the website of the President of Ukraine may not correspond to Your true statements and viewpoints and represents a deliberate misrepresentation of information.
Considering all abovementioned I would sincerely ask You to clarify if the position of the European institutions on reforming Ukrainian judicial system through primary conducting constitutional reform remains the same. Besides I would be grateful if You tell me if there are official conclusions on compliance of the draft law presented by Mr. Poroshenko with international judicial standards. If there are such official conclusions, would You please let me have a look at them.

 

Sincerely Yours,
Andrey Portnov.