High Representative of the European  Union for Foreign Affairs and Security Policy

Secretary General of the Council of Europe

Secretary General OSCE

President of the Venice Commission

EU Ambassador to Ukraine

Ambassador of the USA to Ukraine

 

Dear Sir or Madam,

The status of Ukraine as a member of the Council of Europe as well as the conclusion of the Association agreement between the European Union and its member states on the one part and Ukraine on the other inevitably encourages the Ukrainian authorities to endeavor to strengthen judiciary, improve its efficiency as well as safeguard its independence and impartiality, and combat corruption (Article 14 of the Agreement).

The strengthening of cooperation with the European institutions, which provide the assistance for the systemic reform of judiciary, constitutes an important aspect. Ukrainian authorities should pay attention to European recommendations concerning the wide implementation of the European standards into national legislation of Ukraine.

The Ukrainian authorities totally ignore even the possibility of such cooperation. Besides, all draft laws regarding the functioning of judiciary are adopted hasty and with many procedural infringements. Ukrainian Parliament does not conduct professional and public discussions on drafts laws or preliminary examinations as well as does not file draft laws to the European Commission “For Democracy through Law” (the Venice Commission) for its assessment.

Such negligent practice resulted in the adoption of legal acts which are inconsistent with the European standards and seriously intrude the activity of judges as well as have infringe rights and freedoms of the significant part of Ukrainian citizens.

But at the same time the Ukrainian authorities admit the fact of the adoption of laws which are inconsistent with the European standards. If they do seek assistance with correction of such legal acts, they do it post factum when the act is already in force.

The adoption of the Law of Ukraine “On government cleansing” (lustration law) is a striking example. The Venice Commission has been asked by the Monitoring Committee of the Parliamentary Assembly in October 2014 to assess the Lustration law of Ukraine. The Venice Commission has pointed many violations of the European standards and encouraged the Ukrainian authorities to agree that the Lustration law requires further improvement in order to meet the applicable international standards. The Ukrainian authorities have sought the assistance of the Venice Commission (i.i. 104, 105 Conclusion CDL-AD (2014) 044 dated 16 December 2014).

It is absolutely incomprehensible why the Ukrainian authorities do not pass important draft laws for the examination to the Venice Commission before adoption. Such assistance of the Venice commission may result in exclusion of possible deficiencies and infringements, and it is the only way to secure the professional elaboration of the draft law and its consistency with the Rule of Law and the protection of Human rights.

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 necessity for filing draft laws or any new constitutional amendments as well as draft laws reforming the important spheres of the civil society for the appraisal by the experts of the Council of Europe, such as Venice Commission, is defined in subparagraph 2.4.3 of the paragraph 2.4 of Parliamentary Assembly Recommendation 1722 (2005).

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.

Ukraine has already rejected strict recommendations of the European institutions that resulted in negative experience with the adoption of the Law of Ukraine “On cleansing government”. Nevertheless, the Ukrainian authorities continue to ignore the necessity of the prior cooperation with the Venice Commission while holding the reform through the legislative amendments concerning judiciary, the status of judges and the trial procedure.

The draft law on the securing the right for fair trial that contains provisions concerning the adoption of the new version of the Law of Ukraine “On Judicial system and the status of judges” as well as amendments to other laws of Ukraine was passed to the Parliament by the President of Ukraine P. Poroshenko on 26 December 2014.

The Venice Commission has neither analyzed nor examined this draft law prior to its passing to the Parliament.

Moreover, on the website of the Venice Commission it was mentioned that the later has obtained for the preparation of the opinion the draft law “On the judicial system and the status of judges” that was elaborated by the Ministry of Justice of Ukraine.

But the draft law that was passed to the Parliament by the President of Ukraine significantly differs in content from the draft law elaborated and delivered to the Venice Commission on behalf of the Minister of Justice of Ukraine.

Thus, this is the evidence that the Ukrainian authorities totally ignore the demands of the European institutions to cooperate with the Venice Commission and also mislead the later filing the draft law for the analyses even if such draft is not going to be adopted or passed to the Parliament in this version.

Furthermore, the session of the specialized Ukrainian Parliamentary committee on the topic was held on the 27 December 2014. Within this session it was discussed that in coming days the Ukrainian authorities are willing to adopt the draft law. They will adopt the draft without any opinions of the European experts, as well as with no professional discussion by the members of the Parliament and with no analyses of the draft law by the judges, administrative staff of the courts, scholars and the rest members of the civil society, without getting any opinions and suggestions on possible ways of improvement of Ukrainian judicial system.

As I may say, such hurry with the adoption of the fundamental legislative act determining the structure and functioning of the Ukrainian judicial system is totally inappropriate and may lead to serious negative consequences and infringements of the international standards. Such negligent actions may result in consequences similar to the ones with the adoption of the Law of Ukraine “On government cleansing”.

Such hasty adoption of the draft Law of Ukraine “On judicial system and the status of judges” by the Ukrainian authorities is especially obscure taking into consideration the absence of any activities with the elaboration and deliberation of the constitutional amendments concerning the judiciary. Only the amendments to the Constitution of Ukraine will facilitate to provide the needed prerequisites for the truly European reform of the domestic judiciary.

Moreover in the item 119 of the Opinion CDL-AD (2010) 003 dated 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 subparagraph 7.3.5 of the paragraph 7.3 of the Parliamentary Assembly of the Council of Europe Resolution 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”.

Subparagraph 6.5 of the paragraph 6 and the paragraph 13 of the Parliamentary Assembly of the Council of Europe Resolution no. 1862 (2012) 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.”

In the item 5 of the European Union Foreign Affairs Council Conclusion on Ukraine dated 23 June 2014 it is pointed out that the European Union encourages the Ukrainian authorities to continue their reform efforts, including as regards constitutional and decentralisation reforms, the reform of the judiciary, and urge to activate these efforts.

Taking into consideration the all abovementioned and Your kind dedication to the creation of the fair and impartial trial in Ukraine, I would sincerely ask You to pay Your attention to negative acts of Ukrainian authorities as to the adoption of laws that are inconsistent with the European standards and without any cooperation of the Venice Commission.

I would be grateful if You assess such activity and point to Ukrainian authorities to the inappropriateness of the above described conducts that undermine the Ukrainian image in the eyes of the European community.

 

Sincerely Yours,

Head of the Law reforms Institute

Andrey Portnov