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Timeliness – Judicial Reform (Supreme Council of Justice)

May 28, 2015

The current tenure of the Supreme Council of Justice in Ukraine is about to end.

It is a body, that amongst other things, advises upon the appointments, and release of judges within the “high specialised courts”, – such as the Supreme Court of Ukraine – and is also responsible for disciplining such highly placed “learned judiciary”.

It comprises of 20 members, split equally with half dealing with the appointment/release of judges, and half dealing with disciplinary issues.

Three of these members are the simultaneous occupants of other appointments and take their positions by virtue of holding these other roles.  Those roles being the Chairman of the Supreme Court, The Prosecutor General and the Justice Minister.

The remainder hold office for a 6 year period, with 3 appointed by the President, 3 by the Rada, 3 by The Congress of Judges, 3 by The Congress of Advocates, 3 by The Congress of Law Schools and Scientific Institutions, and 2 by the Conference of Prosecutors Employees.

It is those 17 whose tenure expires in the immediate future.  A new Supreme Council of Justice is expected to be nominated and sworn in during June.

So far, so good.

However, The Judicial Reform Council, tasked with the job of sorting out the judiciary and turning it into a judicial system fit to grace even the most consolidated of democratic and politics-free legal machinery in any European State, is still working on amendments to the judicial system and indeed to the system of appointing the Supreme Council of Justice, together with significant reform of its competencies with regard to appointment/release issues and disciplinary matters.  It appears to be a root and branch reform too – the High Qualification Commission of Judges also looks to be getting a major shake-up.  All such reform, hopefully heavily biased toward genuine judicial independence.

Indeed many draft amendments to existing legislation that would provide for the reforms identified and proposed by The Judicial Reform Council have been written – they just haven’t been submitted to the Rada, as many, if and when adopted, would also require the Constitution of Ukraine to be amended too.

Thus a repeat of the law removing MP/Judicial immunity would occur.  It was passed in the Rada, tossed to the Constitutional Court for its deliberation, tossed back to the Rada (where MPs immunity now sits gathering dust- again), before eventually going to the President for signature and publication – at which point any new/amended law and constitutional amendment enters into force.  As such MPs and judges still retain their immunity – 4 months after MPs voted to remove it.

Needless to say, any identified and recommended procedural appointment changes, and role expanding legislation, is not going to be in place before the next 6 year Supreme Council of Judges take up their positions.  They will undoubtedly assume office under the old – and seemingly unsuitable – legislation and appointment procedures.

With the tenure date of the Supreme Council of Justice known long in advance – indeed from the date of their appointment almost exactly 6 years ago – one perhaps will wonder why legislative amendments have not already been submitted, and the party whips not garnered a constitution-changing 300 MPs to vote the new legislative amendments through – thus having already thrown the matter to the Constitutional Court, awaiting its return in a timely fashion before expiry of the current, sitting Supreme Council of Justice.

As a result, in the absence of an emergency decree extending the current Supreme Council of Justice tenure for “x” months whilst laws are passed and bureaucratic niceties/requirements rightly followed, judicial reform, certainly with regard to the next Supreme Council of Justice, will begin to take effect regarding its composition and the process thereof, 6 years from now.

It’s going to take a very long time to reform the judicial system and the judiciary, if definitive tenure time lines are going to be missed (deliberately/negligently) by a few months, insuring the old system continues for another legislatively fixed tenure.

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