Posts Tagged ‘Venice Commission’


Implementation legislation post Constitutional amendments

November 18, 2016

On 16th November members of the exceptionally sage Venice Commission quietly arrived in Kyiv.

Its reason for coming, to cast a critical and wise eye upon the statutory legislative proposals required to implement the changes to the Constitution of Ukraine regarding the judiciary that came into effect from 30th September 2016.

For those readers wondering why major legislative changes to the fundamental law of the land were not simultaneously accompanied by statutory implementation/enabling legislation (the processes, the how’s and the who’s etc) it should be noted that what occurs now passes for timeliness and planning.


The Constitution (in which ever version) for more than 2 decades has always guaranteed a right to trial by jury – however nobody has ever had a trial by jury because there has never been any statutory law passed defining what a jury actually is, how it is composed, the processes, the how’s and the who’s to form and dismiss one (or persons therein).  As such this long-standing constitutional right remains denied.  (The  argument put forth by legislators when asked why this constitutional right is withheld is that Ukrainian society is not ready for a jury system.)

Therefore, the statutory legislative events surrounding constitutional change that entered into force only a few weeks ago are occurring at lightening speed – and are timely insomuch as is timely for Ukraine.

The Venice Commission has now left.  No formal “Opinion” has yet been released by the conclave of wisdom that viewed, reviewed, pondered and prodded the draft text.  What changes, if any, were made during discussions is unknown.

Whatever the case, and without awaiting the formal Venice Commission “Opinion”, the draft statutory and enabling legislation will be submitted to the Verkhovna Rada next week.

It remains to be seen if the Verkhovna Rada will delay or prolong its internal procedures pending the release of the Venice Commission “Opinion” – or not – prior to putting the draft legislation to the vote.  Nevertheless there appears to be the probability that statutory implementation/enabling legislation may well appear to support constitutional amendments within months of those amendments coming into force – which must be approaching something of a record.

That said, even if that implementation/enabling statute swiftly comes to pass making the constitutional amendments to the judiciary more than otherwise semi-redundant prose, there remains the matter of actual implementation – something likely to be far less timely than the process thus far.


Facing the inevitable Constitutional Court ruling – Lustration

June 11, 2016

Numerous are the entries relating to the “Lustration Law” (On cleansing power), commencing from the date it was signed into law, knowingly flawed, by President Poroshenko in October 2014.

A glossary of the expected problems with the poorly crafted law, together with the anticipated Venice Commission “Opinion” suggestions, and forewarned Constitutional Court outcomes can be found here.

The time has come,” the Walrus said, “To talk of many things: Of shoes–and ships–and sealing-wax– Of cabbages–and kings–And why the sea is boiling hot–And whether pigs have wings.” – Well, that time to talk nonsense has perhaps not quite arrived just yet, but the time of reckoning for a legislative act that barely met the parameter of “OK” certainly has.

The Constitutional Court will finally issue a full verdict regarding the constitutionality – or more likely the lack of constitutionality – regarding the “Lustration Law” (or major parts thereof) in the next few days.

This has prompted robust statements from Justice Minister Petrenko that amendments (submitted on 26th March) to accommodate the Venice Commission “Opinion” will finally be forced through the Verkhovna Rada – and presumably therefore also meet the requirements of the Constitution of Ukraine (though no doubt new appeals (or attempts there at) will be forthcoming relating to these amendments by vested interests).

Speaker Paruby has stated that amendments will also be forced through the Verkhovna Rada to keep the law in statute and on-side with the Constitution – whether he is referring the the same Venice Commission related amendments as Justice Minister Petrenko is unclear.  (Perhaps there are other possible amendments to consider?)

Prosecutor General Lutsenko is stating that his former parliamentary colleagues should vote for a new “Lustration Law” – in which he implies the end of the panel of judges that may perhaps (indeed probably quite rightly) rule the current “Lustration Law” unconstitutional.

“If the Constitutional Court would go against the will of the Ukrainian people – it will be the beginning of the end of the panel of judges.”

As the judges are not responsible for the poor text of the legislation that rubs against the Constitution -but Mr Lutsenko and his parliamentary colleagues that drafted and voted it into statute at the time are – the inference within the Prosecutor General’s remarks regarding the future outcome for the judges are somewhat “unhelpful” if trying to portray an “independent” judiciary, or uphold the integrity and morality of the Prosecutor General that from such a statement may be perceived as interfering/influencing/pressuring the Court.

Is the Prosecutor General seriously stating that the Constitutional Court should rule a prima facie unconstitutional legislative act (or several parts therein) constitutional because not to do so would go against the will of the people?  Is it not the case that the legislative act should either meet the demands of the Constitution of Ukraine, or (perhaps dangerously) the Constitution of Ukraine be amended to facilitate that legislative act – the mechanics of which are both primarily the originating responsibility of the Verkhovna Rada – a body of which until only a few weeks ago Mr Lutsenko has been a member for decades.


To be clear, the Judges can hardly be said to be truly free of vested interests, for the “Lustration Law” did their caste few favours, yet that they become (perhaps temporarily) beneficiaries of poor Verkhovna Rada work is the responsibility of which entity?

There are numerous other lesser mortals from within the Verkhovna Rada also decrying the anticipated Constitutional Court outcome – yet that anticipated outcome has been predicted from the very day the law was signed into statute in 2014 – “I’ve thoroughly studied the draft Law “On Purification of Government” in the version that has been adopted by the Verkhovna Rada the last week. It is not flawless. It has a lot of problematic moments. A lot of innocent people will have to go through a humiliating procedure. I am not happy with that. I’d wish for the better. But in current circumstances, the Law will be signed”. 

“We will finally put this issue into legislative framework. It was the main reason for the adoption of the law. The country must purify itself and it must be carried out under clear procedure regulated by the law.” – President Poroshenko 4th October 2014.

It is perhaps no surprise that with regard to this law in particular, (for a reader can be sure that if a Ukrainian politician (and President) acknowledges flaws in a law when signing it, then it really is notably flawed) that this blog has always accompanied any mention of the “Lustration Law” with the phrase “Legislate in haste – repent, repeal and pay reparations at leisure!.” as there was always to be a time of reckoning – and that time is now upon us.


Lustration – A slow motion policy car crash?

March 22, 2016

On 5th October 2014, when President Poroshenko signed into law what was clearly a poorly crafted law – despite its rightful intention – an entry was published outlining the fact that such a poorly crafted law was extremely likely to result in something of a policy car crash.


“The perception is though, that it is better than nothing and allowing the existing situation to continue unchallenged and unchanged.  The law is certainly not so woefully poor that it has to be unreservedly thrown out – indeed throwing it out would anger a sizeable part of the Ukrainian constituency immediately prior to the RADA elections in a few weeks time.”


“Amendments will surely follow once he Constitutional Court and Venice Commission recommendations are forthcoming, hopefully transforming the “OK” into “good” legislation – but will any amendments be made in a timely way?”


“The issue with “OK” legislation for a subject as serious as lustration, is that ultimately European Court of Human Rights appeals may very well result – with rulings granting compensation and strong suggestions of reappointment to follow, thus inflicting Ukraine to needless costs and possibly reinfection a cleansed (or at least cleaner) system with the possible reinstatement of the corrupt it would have already once removed.”

On 20th November 2014 an entry was published outlining the very Constitutional challenges anticipated almost 2 months prior.

“Indeed, as foreseen, subjecting those learned (and corrupt) individuals to a law that was clearly never more than OK, and far from being good, is subject to legal challenge from th learned (and corrupt) judiciary within their own corrupted court system.  27 of 43 Supreme Court Judges have voted to send the Lustration Law to the Constitutional Court.  Those 27 voting in favour of challenging the Lustration Law (informally) headed by the Head of the Supreme Court, Judge Romaniuk – whom perhaps would struggle to justify his wealth if ever subjected to the Lustration Law, as would many of his colleagues.

Under challenge are Part 1 – Clause 6. Part 2 – Clause 2.  Part 2 – paragraph 13.  Part 3 and Article 3.  Thus whilst not striking down the entire Lustration Law, it would certainly seem to hollow it out somewhat.”

No reader will be surprised that there are, even with the most elastic interpretations of the Constitution and Lustration Law, clearly areas where they are simply unable to “rub along”.  Thus eventually the law, or parts there of, will be judged as unconstitutional.

As also predicted, and duly mentioned in an entry of 14th December 2014, the Venice Commission made its discomfort with the law known.

“The Venice Commission has now commented however.  It is suggesting what amounts to a complete revamping of the law and mechanisms surrounding it – unsurprisingly.

Firstly The Venice Commission recommends that body in charge of lustration should be a specially established independent commission – not the Justice Ministry.  It stresses that people’s right to a fair trial -including the right to a lawyer, equal rights of the parties, and the right to be heard in court – should be observed,  and that administrative decisions on lustration should be postponed during the trial until the final sentence is handed out.

Currently the law on lustration fails to contain some provisions dealing with such guarantees of rights.

It also suggests the provisions of the law containing the list of positions subject to lustration should be revised, and that lustration should only apply to those positions that could pose considerable danger to human rights and democracy, and that guilt should be proven in each specific case – it cannot be considered as proven based on an official’s affiliation with a specific category of public establishment alone.

All of which, again, was entirely predictable – so much so it was predicted at the time.

Legislate in haste – repent, repeal and pay reparations at leisure!”

Timeliness is not necessarily something associated with the Ukrainian legislature unless its vested and varied interests are threatened – and due to the prima facie conflict with the constitution, any threats posed by the poorly written Lustration Law for those at the top of the corrupt and nefarious tree may be seen as temporary pending appeals and ultimately successful (including reappointment and reparation) ECfHR rulings as the law currently stands.

With the Constitutional Court reaching its final (and probably unfavourable) conclusions upon the immediate horizon, notwithstanding several pointed comments from the Venice Commission since its “Opinion” has been roundly ignored (the last barbed comment only a few days ago), only now (21st March 2016) have necessary amendments been submitted to the Verkhovna Rada via Bill 2695 that seek to comply with the Venice Commission official Opinion/recommendations .

The submitted draft proposes to quite significantly alter the composition, independence and powers of any lustration body, clearly identify and reduce those positions (and therefore people) able to be subjected to any lustration process.  (This long after many that would now be excluded from the process should the law be amended, having already been lustrated and who are probably now forming an orderly but very long queue at the ECfHR unless they somehow “settle” domestically.)

It is perhaps fortunate – or more than unsatisfactory depending upon a readers point of view – that the lustration process in Ukraine, since the law was passed, like so many policies has not enjoyed systemic and consistent implementation.  Therefore the damage done – or not done – is far from what it was designed to be.  Repercussions have domestically been, and perhaps at the ECfHR will therefore be, somewhat more limited than they should have been/could be.

It remains to be seen just how snugly draft Bill 2695 will meet the “Opinion” of the Venice Commission, (and by default how many unnecessary ECfHR claims will be prevented in the future), or indeed whether the draft Bill will manage to gather the necessary 226 votes to amend all the laws that will require changing – which include the laws “On the cleansing of power” (Lustration Law), “On the recovery of confidence in the judiciary”, “On prevention of corruption”, “On elections of People’s Deputies of Ukraine”, “On elections of President of Ukraine” and “The Code of Administrative Offences.”

At its most fundamental, the conflicting issue is one of “collective justice” which an aggressive lustration would require to “cleanse en masse” post-soviet endemically corrupted institutions swiftly, verses that of “individual justice” that “Europeans” expect from due process – notwithstanding the constitutional issues.

Perhaps the Ukrainian constituency has now replaced the initial (and rightful) rage that demanded more or less unchecked “collective justice” across the swathes of corrupt practitioners within cancerous State institutions in the aftermath of 2014, to that of stoic and unfaltering determination to deal with the problem in a far more “European” way over the long haul.  As Ukraine has clearly still not got to grips with fundamental requirement of upholding the rule of law in a consistent and equitable manner, and until it does there is no solid foundation for any reform or any legislation that emerges from the Verkhovna Rada be it good, bad or counterproductive, a long haul it is certainly going to be.

The question is whether the “Lustration Law” of October 2014 is a policy car crash that has now truly hit the wall with consequences that should have been foreseen but weren’t, or whether those consequences were foreseen with very clear eyes, and the damage caused in the resulting car crash was deemed entirely acceptable in buying sufficient time to partially cleanse the system and partially placate a then raging society?

Whatever the answer, there remains the need for a policy of institutional and political cleansing that meets the expectations of the domestic constituency (first and foremost) and also external supporters of Ukraine – and the current leadership remains far from achieving that.

Nevertheless, the legacy of “Legislate in haste – repent, amend, repeal and pay reparations at leisure”  appears to require facing very soon indeed.


Revoking citizenship for terrorism – Ukraine

March 16, 2016

In the aftermath of the latest terrorist outrage in Paris, the French politicians decided that the removal of citizenship for those involved in and convicted of terrorist offences should be a legal option.

The UK too has raised this issue several times in the House of Commons historically.

Some time ago in Ukraine, a petition to deprive citizenship for terrorism gathered the necessary 25,000 (and more) signatures to warrant consideration by the President.

(Yes 25,000 signatures within a country of 45 million is a low bar on a national scale, however it is also quite a high bar if the issue is peculiarly local and sees no remedy from the local and/or regional government.)

For the French such a measure would require amendments to their constitution.  A quick glance at the Constitution of Ukraine would suggest the same requirement to make amendments.  Less of a problem for the UK that has no written constitution to amend.


Wisely, the French sent their proposed constitutional amendments to the Venice Commission for their considered and official “opinion”.  That official “opinion” has now been published.

Within that “Opinion” particular emphasis is placed upon any such removal/revoking/stripping of citizenship being subject to both due process and proportionality – quite rightly.

“In the opinion of the Commission, the introduction of a citizenship revocation scheme and the rights attached thereto, common to all the French, origin or naturalized mononational or bi- or multinational n ‘ is not in itself contrary to international standards. It nevertheless recommends clarifying in the Constitution that the forfeiture is an “additional punishment”, applying therefore a criminal judge individualized and proportionate manner, after a fair trial.”

This naturally has ramifications for any Ukrainian decision to deprive/revoke/remove citizenship for terrorism too – particularly when considering it is an “Anti-Terrorist Operation (ATO)” that legally defines the war in the occupied Donbas.

Reading between the lines, President Poroshenko clearly has no desire to provide for such a legal option and therefore the presidential response to the Ukrainian petition was to encourage the government to study international experience upon such issues.  Such advice however, may be little more than kicking the can down the road if traction is found among 300 or more MPs – for Ukraine is a parliamentary/presidential democracy and not the other way around (despite appearances).

Just how far the presidential boot has kicked the citizenship removing/revoking terrorist can down the road may very well depend upon the speed of actions and their outcomes within the French parliament following this Venice Commission “Opinion”.

It is an issue to keep an eye on from a Ukrainian perspective – as well as from the perspective of international law, regional treaties, and human rights instruments.


Avakov proposes a 3 month cessation of the courts – Ukraine

January 5, 2016

Interior Minister Arsen Avakov wrote the following on his Facebook page:


Судам никто не верит. И дело не в законах, по которым судят. Дело в судьях!

Судьи в Украине сейчас в общественном сознании – воплощение всего чего угодно, только не законности и справедливости! В сегодняшней ситуации любое решения суда, судебные процедуры – общество подвергает сомнению. И есть за что! Дела по выпущенному беркутовцу Садовнику, Ефремову, Лукаш, Мельнику, пьяного судьи Оберемко, процедуры по Корбану, выпущенным под залог взяточикам за сумму в 1/3 от полученной взятки… Уверен, Вы мне продолжите этот список на сотни страниц.. Доверие к судейскому корпусу – ноль!

И что предпринимать?! Никакая реформа МВД и Полиции (мы ее правильно, хоть и болезненно, но проводим и проведем!) – не поможет изменить РЕАЛЬНОЕ положение вещей в правоохранительной сфере. Без радикального изменения в системе прокуратуры и судов, изменения уровня доверия людей к прокуратуре и СУДАМ – ничего не выйдет!

Все недавние законы и проекты изменений в законы по судьям, по моему мнению – увы, полумеры – которые не поменяют ничего! В том числе и последний конституционный проект.

Считаю, что необходимо вернуться к радикальному проекту, на котором настаивал в свое время «Народный фронт», но не получил тогда поддержки. Речь тогда шла о полной(!) замене судейского корпуса. Полной перезагрузке – с новым набором, профессиональным конкурсом и реальной ВНЕШНЕЙ аттестацией нынешнего судейского корпуса. Предлагалось выстраивать новые суды параллельно, пока старые будут работать.

Я же сторонник еще более жесткого процесса. Никто, уж извините, не помрет – и все поймут и согласятся, если в стране не будет функционировать судебное правосудие в течении трех месяцев формирования новых судов! Если люди будут понимать, что происходит процесс реальных изменений и очищения – согласятся потерпеть! Принять все необходимые законодательные акты на переходный период – от продления процессуальных сроков до порядка рассмотрения дел и – амба – локаут! – перезагрузка на три месяца. Все ушли на конкурс – придет новый суд!

И не надо мне говорить, что это утопично, сложно, затратно.. Если есть воля к РЕАЛЬНЫМ изменениям – получить новое качество правоохранительной системы – только так и нужно действовать! И все наши партнеры иностранные и поймут и помогут. И люди поддержат! И инвесторы поверят и придут- ведь это вопрос не только справедливости и законности – это вопрос и экономики!

По иному заниматься изменениями судов – это пустой процесс – это как варить суп из топора – вода кипит, топор покрывается пузырьками, но толку нет – это процесс для простаков, которых хотят надуть..

Считаю – надо решаться на радикальную реформу судов – и это процесс и задача для всех для нас на 2016 год, наряду с завершением ключевого этапа реформы МВД и реальным, а не бутафорским процессом изменений в прокуратуре.

Время примерок и прикидок – прошло. Надо действовать решительно и резко. Пока еще открыто окно возможностей!

Arsen Avokov

Arsen Avokov

It is a statement that proclaims, in his view, that all new laws and proposed constitutional changes that relate to changes in the judicial system, the appointment, sacking, attempts to de-politicise, and removal of carte blanche constitutionally granted immunity for judges are “half measures that will not change anything.”

His proposal, to pass all necessary temporary legislation valid for a 3 month period whereby the judiciary of Ukraine simply stops working whilst all existing judges are vetted, and the judicial corps purified of the corrupt and incompetent.  A radical approach required to garner any success.

Prima facie, who would not/could not be in favour of such a swift and thorough vetting and purification?  A thorough cleansing of the Ukrainian judiciary is long overdue.  But the rule of law demands that the “means” as well as the “ends” are weighed in equal measure and are both legitimate and lawful.

Thus there are issues to consider – many of them legal both internationally regarding the obligations Ukraine has made within signed and ratified instruments, and also domestically with regard the constitution – and other domestic law.

Therefore whatever temporary legislation Mr Avakov is thinking of will need to take into account all such matters.  First and foremost perhaps, is the pending constitutional amendments that indeed address and remove the carte blanche immunity the judiciary are currently offered, and which have a fairly high degree of support from the Venice Commission as given in their official “Opinion”.

The constitution cannot simply be brushed aside without consequences both domestically and at the European Court of Human Rights when hundreds more claims are submitted by a botched purge upon the judiciary.  Is not President Poroshenko sworn to uphold and defend the constitution as a major role of the office he holds too?

Ergo, at the very least, the constitutional amendments relating to the judiciary and making them far more accessible to accountability without their current absolute immunity is surely a prerequisite to any temporary 3 month legislation that would then be (at least far more) constitutional than simply ignoring it now – and with far less legal blow-back as a result.

But is 3 months to purify the entirety of the judicial system long enough?  What is the desired outcome – to remove the worst of the worst, or retain the best of the rest?

Mr Avakov’s own ministry has seen a process that took far longer than 3 months to draw in applicants, go through vetting and interviewing of the new Patrol Police – discounting their 10 week “boot camp” training.

How many months did it take for the anti-corruption appointees to apply, get vetted, be interviewed by public panels and eventually be selected etc?

These things took time and included the public to gain the trust of society in the appointment system – and thus far have worked reasonably well in garnering and retaining public trust.

Who will be judge and jury over the reappointment/retention or dismissal of the current judiciary?  Will it not require the same lengthy and public involvement in the process if it is to project the perception similar to that of the Patrol Police and anti-corruption appointees?  Are not judges to be subjected to such scrutiny when they are equally as important to the system of rule of law?

Perhaps Mr Avakov envisages a far swifter system of reappointment/dismissal per the vast majority of the police that occurred (discounting the Patrol Police) whereby a very solid majority were retained?  Is that the “purification” to which Mr Avakov alludes?  If so, what level of previous corruption will be tolerated in keeping a judge, as it was in keeping a police officer, and who will decide?

Furthermore policing did not stop whilst it was being overhauled – and yet the judicial system should?

What say the Ministry of Justice?

More sensibly, some judges in every region would simply have to continue working even if the majority of others were suspended during any vetting/reappointment/dismissal protocols that eventually are arrived at.

The police will still need a judge to grant search and seizure warrants in every region of Ukraine.  A judge will still be required to extend or end the detention of those on remand.  Likewise a judge will be required to remand in custody those deemed a risk to society and/or flight risk during the 3 month (probably far longer if it is to mean anything) suspension of the Ukrainian judicial system as he proposed.

As supportive of any radical overhaul of the judiciary as we may all perhaps be, the judicial review of the rights of those temporarily held in custody prior to any finding of guilt cannot be sacrificed without significant repercussions from the Europeans, Council of Europe etc.

Thus the simple suspension of the Ukrainian justice system for a 3 month purification purge is not so simple.  There will have to be at the very least a minimum continuance to insure adherence to human rights obligations and property rights regarding warrants for search and seizure.  There are other emergency issues that require a judge – emergency care orders for children at risk that go beyond any proscribed police parameters etc – but the point has been sufficiently made.

The above in mind, and accepting that the cessation of the Ukrainian judicial system for 3 months (or more) is simply not practical, nor without significant legal ramification domestically and beyond – but supportive of a swift, deep and comprehensive purification of the judiciary – it would perhaps be wise to identify certain judges in each region that are expected to pass any future reappointment processes with ease, to act as the few required to insure Ukraine meets the obligations it has made with regards to the most basic human rights and also allows for the functioning of the Interior Minster Avakov’s law enforcement bodies.

Another issue to consider is the backlog created by an absolute stop for 3 months (probably longer) of the entire judicial system.

Not only does everything stop with regard to existing cases and appeals, but new cases will continue to accrue too.  This before any cases currently allocated to a dismissed judge also having to be reallocated and the case heard anew.  Realistically, a 3 month suspension of the Ukrainian justice system will equate to a backlog that will take a year or more to clear.  The public should be made aware that such an outcome is extremely likely – for they will be far more accepting of delays as long as the benefits manifest.

There are perhaps other ways to tackle the issue rather than a complete cessation of the entire Ukrainian justice system that would allow for the required thoroughness, public scrutiny, and thus improved confidence in the outcomes?  A method whereby a complete cessation can be avoided and the urgent and necessary cases still dealt with?

Is it viable to roll out the purification similarly to how the new Patrol Police was rolled out across the oblasts?  For example, could Odessa be “purified” but whilst that occurs could judges from Vinnytsia hear the urgent pending cases in Odessa – and that then be reversed once Odessa has been “purified” and the judiciary of Vinnytsia put under scrutiny?  Is it feasible to “purify” 50% of the oblasts at once, providing judicial cover from the other 50% – and then reverse the process and purify the remaining 50%?

Furthermore, and to be blunt, the new laws and constitutional amendments pooh-poohed by the Interior Minister in his FB entry as “half measures that will not change anything” would still be seen as half measures after any radical purification he advocates?  He would lobby for their repeal – or do they have, and will they retain, some merit after his proposed purification?

How will any purification and the dismissal of numerous judges thereafter, attract replacement judges if the salaries remain woeful?  Can the fines levied by the courts against wrong-doers be used to self-finance a revamped justice system whereby fines paid to the State are then reinvested in the justice system – either in full or in part (officially or unofficially)?  Would that increase the temptation of the judiciary to simply fine (heavily) offenders to sponsor their own pay rises?

Is there anything in the (as yet unpublished) 2016 budget that provides for judicial salary increases of a scale that would make corruption far less attractive when combined with lengthy custodial sentences for those caught in nefarious deeds after judicial immunity is tackled?

Clearly there can be no complete cessation of the Ukrainian judicial system as Mr Avakov states, but also as he states, there is a need for the State to aggressively and swiftly address the issue of a Ukrainian judiciary which all to often fails to deliver justice to the Ukrainian constituency on a daily basis – and across innumerable cases that never receive any publicity.

Perhaps a little more thought is required to accomplish what without doubt is necessary with regard to required outcomes in a far more timely manner, whilst also meeting the bare minimum of the State’s obligations domestically and internationally whilst doing so – for a solution (if slightly imperfect) there will be that will provide for both swift “purification” and continuing to meet legal obligations.

What is actually missing is the will to find it and then implement it.


Back to the judiciary – or more to the precisely an increasingly feckless Verkhovna Rada

October 31, 2015

On 26th July 2015, an entry relating to the generally positive Venice Commission “Opinion” toward judiciary reforming constitutional amendments was published.

That full opinion can be found here and is well worth reading in its entirety.

However, to summarise the positives – The removal of the power of the Verkhovna Rada to appoint the judges; the abolition of probationary periods for junior judges, the abolition of the “breach of oath” as a ground for dismissal of the judges, the reform of the Public Prosecutor’s Office, the guarantees for its independence (notably the removal of the power of the Verkhovna Rada to express no confidence in the Prosecutor General) and the removal of its non-prosecutorial supervisory powers.

Likewise with the negatives – While the ceremonial role of the President to appoint judges seems well justified, this is not the case for his power to dismiss judges, which should be removed from the text, and in addition, not only the President, but also the Verkhovna Rada should have a role in the election/ appointment of a limited number of members of the High Judicial Council.

On the whole however, not too bad at all – clearly the Verkhovna Rada had some help with their homework prior to submitting it to the Venice Commission, for their usual standard of legislative crafting is, to be charitable, poor.

Of course the whole judicial reform issue since that 26th July entry has gone precisely nowhere – no differently from removal of MPs immunity first voted for on 5th February, having long since received the nod from the Constitutional Court for a final vote.

Thus far, meaningful political reform to the Ukrainian political system is notable by its absence, and reforming the nation is dependent upon reforming the political system first.

Absolute immunity (and impunity) remains in place despite the 5th February vote and Constitutional Court nod of assent.  No reforms to the internal workings of a bureaucratically constipated (and thus corrupted) Verkhovna Rada have been made.  Electoral law amendments have not been passed despite Ukraine having long since received the Venice Commission advice it requested.  The election laws employed for the local elections vindicated the external advice given and that was subsequently then ignored, and the OSCE called once again for the pending legislative electoral changes to be made post haste.  The new law on changes to funding of political parties and candidates barely got over the legislative line with 229 votes in favour (226 required) and has a delayed implementation date of 1st July 2016.  Thus the local elections last week, and any early Verkhovna Rada elections rumoured for Spring 2016 remain unaffected by this new law – assuming it is not amended into impotency prior to it coming into effect.

There is no need to go on about the failure to reform the political mechanics, though it is possible to do so.

With regard to the political party scene, then the entire gene pool remains without any ideological DNA.  Some may point east, others west in their direction – but a compass point is not an ideology.  Even the few new parties that have appeared from the local elections with a chance of entering the national legislature if early Verkhovna Rada elections manifest, are also devoid of ideology.  The Renaissance Party is Ihor Kolomoisky’s Russian-leaning alter-ego to his Ukrop Ukrainian nationalist party – both of which will do his bidding.  Our Land is a creation designed to split the Opposition Block vote further by the ruling party.  It has no other purpose.  All other existing parties remain nothing more than vehicles for their leaders and/or financiers, and without them the parties are quite meaningless and define political nihilism entirely devoid of political ideology and values.  The leader’s whim of the day, dictates the party action.  No party is bigger then, or can control, its leader/financier.

Whether any anticipated Verkhovna Rada elections would produce a better or worse legislature remains to be seen.  The voters can only vote for those that appear upon party lists or who stand for single mandate first past the post seats.  As long as the political parties continue to fill their party lists with the same quantities of nefarious and odious candidates, and via the same old grubby methods, voters can only vote for those who are listed.

When the political parties continue to give voters a choice of party lists that are little more than a choice between a nefarious and odious poke in the eye with a fork, or a nefarious and odious poke in the eye with a pointed stick, the result remains a nefarious and odious poke in the eye.  The choice of death or cake is absent.

Nevertheless, quite clearly the Verkhonva Rada has become constipated when it comes to delivering the political structural and power changing legislation required that will facilitate reform in Ukraine.  Whilst the Prosecutor General, Mr Shokin, is deliberately obstructing reforms, the Verkhovna Rada is no better.

Although it was, and remains, very unlikely that President Poroshenko and Prime Minister Yatseniuk are the two leaders that will reform Ukraine as far as implementing deep and comprehensive reform is concerned, they are certainly capable of creating the legislative mechanisms for reform so that others who follow them and who will have the will to do so, can.

Returning to the judicial and prosecutor reforms, the issue is raised here once more, not due to its continuing untimeliness, nor the expected stalling at the final hurdle/vote, but due to the fact there are a number of imminent judicial issues.  The question is whether they be delayed for however long it takes to deliver the Constitution changing laws, or whether timeliness demands these judicial issues be dealt with under existing legislation?

There are currently 253 motions sat gathering dust within the Verkhovna Rada to dismiss judges.  There are also 547 judges that have applied for their permanent appointment.  This notwithstanding an entirely inadequate lustration of the judiciary which so far seems mostly to have occurred by way of agreed retirements (and retained pensions) rather than any prosecutions and jailing – but then nobody of any importance really gets prosecuted by the current Prosecutor General (whom the President refuses to replace) – thus nobody of any importance goes to jail.

But what to do with all of these pressing judicial personnel issues when the plan is to transparently appoint a new judiciary based upon quality under public scrutiny, and also at some point to at least feign the lustration of the judiciary?

There is already a lot of critical legislation vying for parliamentary time in November (the 2016 budget and proposed major new tax reforms are two amongst others that will demand a lot of parliamentary time) and in December too (the probable time for any “decentralisation” vote immediately before the New Year break when MPs can scatter and avoid any public ire).

party whipThe absence of will by the majority of parliamentarians to force real political machinery reform legislation to the vote is clear, as is the inability of the Party Whips to be confident of garnering the necessary votes to pass anything meaningful.

Eventually however, even if it means western economic aid suspended until this legislation is passed, the amendments will pass.

Unfortunately even when the constitutional changes are made we can anticipate further problems, as there will be a need for new legislation to progress and support the constitutional changes and enable effective implementation – and that legislation will probably be as protracted in its passing as that mentioned above.  After all, Ukraine has a constitution that, since its creation decades ago, provides for a right to trial by jury – yet there has never been a trial by jury as there has never been any subsequent subordinate legislation passed defining what a jury is, what a jury does, nor the composition of a jury, how it is selected, and for what offences it it convened and which it isn’t.


Setting the stage for the next “Normandy Format” meeting

August 20, 2015

Today Berlin will host an informal meeting of legal experts from the “Normandy Four” – also in attendance will be the Venice Commission – the aim is to explain to The Kremlin that the collective interpretation is that the proposed amendments to the Ukrainian Constitution regarding “decentralisation” fall squarely within the terms of the Minsk II agreement – despite the said amendments falling far short of what the Kremlin hoped to achieve via its Donbas adventure and the interpretation of Minsk II that the Kremlin has tried to force upon the “Normandy Four”.


The Kremlin of course already knows that the proposed Ukrainian Constitutional amendments fall within the Minsk II agreement.  The entire point of the dramatically increased violence in the Donbas, and immense Kremlin diplomatic effort to have Germany and France pressure Kyiv into more concessions without any Kremlin reciprocity reflects an evermore frustrated Kremlin.

At the very least it has resulted in Germany calling the “Normandy Four” Berlin meeting on 24th August.

Taking into account the understanding of our Normandy Four partners that amendments to the Constitution suggested by Ukraine are in line with the Minsk agreements, the goal of the meeting is to explain legal aspects of the constitutional amendments to Russia.

As the people are the only source of power and holder of sovereignty in Ukraine.  The people execute their power directly and via representative agencies, and the decision on any amendments to the Constitution is made by the Verkhovna Rada. According to the Constitution, the right to establish and amend the constitutional order in Ukraine belongs only to the people and can’t be usurped by the state, its agencies or officials. Moreover – by a foreign state.

We’ll talk solely in the legal sphere on constitutional amendments, preliminary approved by the parliament and their being in line with the logic of the Minsk agreements, and thus the way to peace. But no one in Ukraine will adjust the Constitution to Russia’s wrongful understanding of the agreements.” – was the statement regarding today’s Berlin legal conclave.

(The Ukrainian representatives will be Serhiy Holovaty and Roman Bezsmertny.)

Fairly robust rhetoric designed, in short, to inform the Kremlin that there is no further room to try and frame interpretations their way, or that will further undermine what has already been conceded by way of concessions in previously weak negotiations.

This statement made simultaneously with a statement from NATO – a key paragraph being – “Russia has a special responsibility to find a political solution. Any attempt by the Russian-backed separatists to take over more of Ukraine’s territory would be unacceptable to the international community.

This infers more costs to the Kremlin for any further loss of territory.

The problem with this statement is that since Minsk II was signed Ukraine has continuously lost territory – a village here, a few kilometers of terrain there, the occasional town etc.  This should have been unacceptable to the international community already, but this continuous territorial creep has garnered no response.

Therefore so far, the “unacceptable” has in fact been acceptable – and de facto accepted.  The rhetoric empty.

Nevertheless it is seemingly designed to reinforce the aforementioned Berlin pre-messaging/framing – and perhaps post-Berlin outcomes.  The message being that the current Kremlin sponsored up-tick in violence will not gain further concessions, and Kremlin sponsored territorial punishment will not go without costs when no further meaningful concessions are forthcoming.

Whether such messaging will be duly noted remains to be seen.  Russian “humanitarian conveys” will be much more frequent with the increased speed at which ammunition is being expended by its troops and proxies in the Donbas.

A “hot” to “very hot” front line may well be ahead for the remainder of the year.

There are key political dates within Ukraine between now and year end which will be both presaged and latterly punished by the Kremlin when it does not get desired outcomes.  Front line “heat” will be accompanied by yet hotter political, diplomatic and economic pressure as important political dates come and go.

Few should be surprised that the 1st January EU-Ukraine DCFTA implementation date will also be accompanied by something approaching a synchronised (almost) complete ban of Ukrainian imports by the Kremlin – and a Donbas “winter offensive” of sorts – to express its displeasure.

Kyiv needs to hold its political and diplomatic nerve – and the Ukrainian military hold the line.  The rest of the year will be characterised as much – if not more so – by a battle of governance as it will be a seemingly ever “hot” front line.

Nevertheless, in attempting to preset the stage/pre-frame the 24th August Berlin meeting in a way that implies limited scope for yet further pocketed concessions for the Kremlin, a very very “hot” front line can be expected this weekend.


The Venice Commission on Constitutional/Judicial reforms – Ukraine

July 26, 2015

Probably one of the most underrated acts of the current president, cabinet of ministers, and sitting Rada, was the accommodation of almost all Venice Commission “recommendations” with regard to the constitutional amendments that facilitate “decentralisation“.

Time will now tell whether the Constitutional Court will have issues with the proposed “decentralisation” amendments, and if they deem all satisfactory, whether the 300 (plus) votes required for a constitution changing majority can be reached within the Rada ranks when the matter is placed before them once more, as stated here previously.

However, the constructive attitude of the Ukrainian political class was not unnoticed.

“I very much welcome that the Constitutional Commission of Ukraine approved on Friday draft amendments to the Constitution regarding decentralisation. The text approved integrates most of the recommendations made by the Venice Commission and I would like to thank the President of the Constitutional Commission and Speaker of the Verkhovna Rada, Mr Volodymyr Groysman, for the excellent co-operation with the Venice Commission and congratulate him on the results of this co-operation.

Decentralisation is one of the key reforms required for the democratic development of the country in line with the aspirations of the people expressed during the revolution of dignity. The speedy adoption of the text by the Verkhovna Rada is now very important with a view to the local elections, which will take place in October, and the continuing negotiations in the framework of the Minsk process.

The Venice Commission stands ready to provide its assistance for further reforms, in particular the constitutional amendments concerning the judiciary.” – Gianni Buquicchio

Very good – or at least good, for whilst the Venice Commission may well have known the detail of proposed constitutional amendments designed to achieve “decentralisation”, the constituents of Ukraine were almost entirely in the dark, notwithstanding very broad brush-stroke remarks in the media that could have meant almost anything.

2751_venice_commisionSadly, the same blanket lack of knowledge relating to proposed constitutional amendments in the public realm exists when it comes to providing a pathway for judicial and prosecutors reforms.

However, the Venice Commission has released some preliminary opinions upon the matter, per the proposed constitutional amendments it has been sent.  Thus there is some insight into the proposed constitutional changes.

The major issues can be summarised as follows:

“The proposed amendments are a generally positive text which deserves to be supported. The amendments are well drafted.  Their adoption would be an important step forward towards the establishment of a truly independent judicial system in Ukraine.  The Venice Commission welcomes in particular:

– The removal of the power of the Verkhovna Rada to appoint the judges;
– The abolition of probationary periods for junior judges;
– The abolition of the “breach of oath” as a ground for dismissal of the judges;
– The reform of the Public Prosecutor’s Office, the guarantees for its independence (notably the removal of the power of the Verkhovna Rada to express no confidence in the Prosecutor General) and the removal of its non-prosecutorial supervisory powers.

The text, however, still presents some shortcomings, especially with respect to the powers of the main State organs in this field.  If not corrected, these shortcomings might create a new danger of politicisation of the judiciary and perpetuate the problems of the current system.  In this respect, the Venice Commission formulates the following main recommendations:
– While the ceremonial role of the President to appoint judges seems well justified, this is not the case for his power to dismiss judges, which should be removed from the text;
– In addition, not only the President, but also the Verkhovna Rada should have a role in the election/ appointment of a limited number of members of the High Judicial Council.”

Do read the entire text of the Venice Commission preliminary “opinion”.  There is some nuanced wordsmithery in connection to a number of much smaller issues – but issues nonetheless – that should also be accommodated by the Ukrainian leadership.

Hopefully the same political will found to accommodate the Venice Commission recommendations for the “decentralisation” amendments, will again be found with regard to the Venice Commission recommendations (both major and minor) to come relating to the judiciary and prosecutors.

Unfortunately, it seems unlikely that the Ukrainian leadership will enlighten the electorate with details of proposed constitutional amendments (and their ramifications), and thus only the reasonably constant monitoring of the Venice Commission website is likely to provide clues to the detailed proposals made.

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