10/08/2023
Kyiv

ANKE EILERS,
the President of the Consultative Council of European Judges

I express my sincere respect and address you with the following.
According to the Statute of the Association of Judges of Ukraine, the Association of Judges protects judges and retired judges, represents their interests before international institutions and public authorities of Ukraine.
On August 8, 2023, judges of the High Administrative Court of Ukraine, the High Commercial Court of Ukraine and the High Specialized Court of Ukraine for Civil and Criminal Cases (further, the HSCU, the HECU, the HACU), representing more than 50 judges of these courts, addressed the Association of Judges of Ukraine with the statement that certain provisions of Draft Law # 5456-Д do not meet international standards of judicial independence, as it does not guarantee that judges of cassation courts will retain their status, and asked to help protect the interests of judges, as well as the possibility of addressing this issue to the international community.
In this regard, the Association of Judges of Ukraine considers it necessary to address the Advisory Council of European Judges.
The judicial system of Ukraine has been reformed several times within the last few years. As a result of the Constitutional reform of 2016, introduction of the three-branch judicial system (local courts; courts of appeal; the Supreme Court) has become one of the major Constitutional changes. According to the law, the higher specialized courts may operate, and the administrative courts are established.
Currently, there is no legal mechanism governing termination of the HSCU, the HECU, the HACU as the legal entities consistently with the principle of legal certainty established by the Constitution of Ukraine. There is still neither the Decree of the President of Ukraine nor the relevant law on termination (liquidation, reorganization, renaming etc.) of the higher specialized courts.
Uncertainty, vagueness and ambiguity of the legal regulations governing termination of the HSCU, the HECU, the HACU, including unlimited interpretation in the legal practice, entail arbitrariness, breach of the constitutional guarantees, violation of international standards and practices in the area of transfer of the specified court judges appointed for an unlimited term by virtue of the Constitution effective upon their appointment. And now, it has been six years since the 45 judges of the HSCU, the HECU, the HACU are prohibited from their professional activity while they are still the authorized judges, without being officially dismissed because they are not holding any offices in the specified court.
Unforeseen suspension of duties of the HSCU, the HECU, the HACU judges as a result of the court reformation contradicts the non-changeability principle and makes it impossible for a judge to work until the age of 65.
The national legislation governing status of the judges prescribes no transfer of a judge to the court of the same level and violates the international standards, including the recommendations of the Committee of Ministers in the Council of Europe, the Consultative Council of European Judges, the conclusions and standards of the Venice Commission, the Consultative Council of European Judges bureau, as well as restricts the effective constitutional guarantees of judicial authority independence, which may consequently jeopardize Sections 6 and 8 of the European Convention on Human Rights and Fundamental Freedoms.
To execute the Decision of the Constitutional Court of Ukraine dated 18.02.2020 recognizing the relevant legislative measures as being non-constitutional in relation to the Supreme Court of Ukraine due to violation of the non-changeability principle, the parliament tries to correct the errors again, and on 16.03.2023, the Bill # 5456-Д is issued. On 20.03.2023, the specified Bill is reviewed by Verkhovna Rada of Ukraine in the first reading.
However, the Bill # 5456-Д does not guarantee that the cassation court judges will retain their status.

In particular, the Bill includes the provisions detailed below:
– if the court system changes, the HSCU, the HECU, the HACU judges may be transferred to the lower courts (courts of appeal or local courts) without their consent (clause 2, paragraph 14-1), and may not be transferred to the higher specialized court without competition;
– the HSCU, the HECU, the HACU judges transferred to other courts and those intending to resign shall be equal to the judges of the higher specialized courts in terms of their status and social welfare services (clause 6, paragraph 14-1).
Under Section 125 of the Constitution of Ukraine as amended by the Law of Ukraine # 1401 of 02.06.2016, the specialized courts for certain categories of cases,
namely, the High court on intellectual property and the High anti-corruption court of Ukraine, have been established as part of the reformation and are operating as the courts of the first instance and the courts of appeal.
In the previous version of Section 125 of the Constitution of Ukraine, the higher specialized courts were the higher judicial authorities in the relevant area in the judicial system and exercised the powers of the cassation courts.

Hence, identification of these courts by name does not determine their instance and specialization constituting the basis of the judicial system (Part 1 of Section 17, Part 3 of Section 19 of the Law of Ukraine “On the judicial system and the status of the judges”).

Adoption of the Bill may undermine stability of the judicial system and make it impossible to implement the principles aimed at establishment of the non­ changeability standards and, accordingly, ensure independence of the judges.
The suggested Bill does not provide any guarantees detailed in Conclusion of CCJE-BU (2020)3 of 09.12.2020 about the reformation of Slovakia judicial system (upon request of the Member of Consultative Council of European Judges from Slovakia), in particular, upon changes of the judicial system, the judge may not be legitimately transferred to the court of the same instance; long-term unexcused non­ transfer infringes on the right of the judge to enjoy private and family life; the government does not cover the costs associated with the transfer.
The HSCU, the HECU, the HACU judges are the only ones who still receive the financial payments based on the Law # 2453 of 07.07.2010 that has been voided and become unenforceable in relation to other Ukrainian judges of any level affected by professional discrimination.
In view of the above,
we kindly ask you to determine at your earliest convenience whether the Bill # 5456-Д is in line with the European standards and provide the Conclusion exhibiting the legal analysis of the changes to be made to the Law of Ukraine “On the judicial system and the status of the judges.”

Addition:

Bill # 5456-Д
Sincerely yours,
V. M. KOROTUN
President of the All-Ukrainian Public Organization
‘Association of Judges of Ukraine’

The Bill
presented by D.V. Maslov and other
people’s deputies of Ukraine, members of the
Committee on Legal Policy and Justice

THE LAW OF UKRAINE
On introduction of changes to Part XII “Final and transitional provisions” of the Law of Ukraine “On the judicial system and the status of the judges” in connection with Resolution of the Constitutional Court of Ukraine # 2-p/2020 of February 18, 2020 on permanent administration of justice by the highest court in the judicial system of Ukraine

The Verkhovna Rada of Ukraine hereby decrees:

1. To make changes to Part XII “Final and transitional provisions” of the Law of Ukraine “On the judicial system and the status of the judges” (Information of the Verkhovna Rada of Ukraine 2016, # 31, page 545 as amended) as follows:
1) in paragraph 2, replace “in paragraphs 7, 23, 25, 36″ words and digits with “in paragraph 7″ the words and digits;
2) amend subparagraph 1 of paragraph 4 as follows:

“1) the Supreme Court of Ukraine, being the public authority, shall be renamed as the Supreme Court and continue operating as the highest court in the judicial system of Ukraine”;
3) include paragraphs 41 and 42 as follows:

“41. The judges of the Supreme Court of Ukraine appointed before the effective date of the Law of Ukraine “On introduction of changes to the Constitution of Ukraine (in the part of justice)”, shall continue exercising their duties as the judges of the Supreme Court in the relevant expert area, until they are removed from office or their authority is terminated on the grounds prescribed by the Constitution of Ukraine.

42. The officers of the apparatus of the Supreme Court of Ukraine whose authority is still in effect, shall be transferred, upon their personal request without the mandatory competition, to the equivalent positions in the apparatus of the Supreme Court following the procedure prescribed by the law”;

4) amend paragraph 5 as follows:

“5. The Supreme Court acts on the material and technical basis of the Supreme Court of Ukraine, the Higher specialized court of Ukraine for civil and criminal cases, the Higher economic court of Ukraine, the Higher administrative court of Ukraine”;

5) exclude “the Supreme Court of Ukraine” words in paragraph 7;

6) amend paragraph 71 as follows:

“71. The judges specified in paragraph 41 of the said Part (except those who have proved to be eligible for their positions before effective date of the Law of Ukraine “On introduction of changes to Part XII “Final and transitional provisions” of the Law of Ukraine “On the judicial system and the status of the judges” in connection with Resolution of the Constitutional Court of Ukraine # 2-p/2020 of February 18, 2020 on permanent administration of justice by the highest court in the judicial system of Ukraine”), shall be assessed by the High Qualifications Commission of Judges of

Ukraine in order to determine their eligibility for the relevant positions based on the criteria of competence, professional ethics and fairness following the procedure prescribed by the specified Law and with due regard to the particulars detailed in the specified paragraph.
The qualification of the judges shall be assessed by decision of the High Qualifications Commission of Judges of Ukraine on qualification assessment. The qualification assessment by competence criteria is only available in the form of an interview.

The Public Integrity Council helps the High Qualifications Commission of Judges of Ukraine to determine whether the judges meet the professional ethics and fairness requirements”;
7) exclude “the Supreme Court of Ukraine” words in paragraph 14;

8) amend paragraphs 141 – 142 as follows:

“141. A judge of the Higher specialized court of Ukraine for civil and criminal cases, the Higher economic court of Ukraine, the Higher administrative court of Ukraine may be transferred to the court of appeal or a local court following the procedure prescribed by Sections 53 and 82 of the specified Law, without competition and with due regard to the particulars detailed in the specified paragraph.

The judge as mentioned above shall be transferred upon review of his or her application by the Supreme Council of Justice within 30 days following the effective date of the Law of Ukraine “On introduction of changes to Part XII “Final and transitional provisions” of the Law of Ukraine “On the judicial system and the status of the judges” in connection with Resolution of the Constitutional Court of Ukraine # 2-p/2020 of February 18, 2020 on permanent administration of justice by the highest court in the judicial system of Ukraine”, regardless of the vacancies available in the court.

If the judge of the Higher specialized court of Ukraine for civil and criminal cases, the Higher economic court of Ukraine, the Higher administrative court of Ukraine submits no request for transfer to the certain court by his or her choice, the Supreme Council of Justice shall transfer such judge as abovementioned to any other court of appeal that offers a vacancy, without consent of the judge.

The Supreme Council of Justice makes decisions regarding the transfers without recommendations of the High Qualifications Commission of Judges of Ukraine.

The judges mentioned in this paragraph (except the ones who have proved to be eligible for their positions before effective date of the Law of Ukraine “On introduction of changes to Part XII “Final and transitional provisions” of the Law of Ukraine “On the judicial system and the status of the judges” in connection with Resolution of the Constitutional Court of Ukraine # 2-p/2020 of February 18, 2020 on permanent administration of justice by the highest court in the judicial system of Ukraine”), shall be assessed for eligibility for the relevant positions based on the criteria of competence, professional ethics and fairness following the procedure prescribed by the specified Law.

The judges of the Higher specialized court of Ukraine for civil and criminal cases, the Higher economic court of Ukraine, the Higher administrative court of Ukraine transferred to other courts, as well as the resigning judges shall be equal to the judges of the higher specialized courts in terms of their status and social welfare services.

“142. Upon resignation, the judges of the Higher specialized court of Ukraine for civil and criminal cases, the Higher economic court of Ukraine, the Higher administrative court of Ukraine,

regardless of their positions at the time of resignation, shall be granted the lifelong monthly financial support in the amounts and following the procedure prescribed by the specified Law, considering the amount of the judges’ remuneration estimated based on the basic salary of the judges in the higher specialized courts.

The judges of the Higher specialized court of Ukraine for civil and criminal cases, the Higher economic court of Ukraine, the Higher administrative court of Ukraine granted the lifelong monthly financial support under the Law of Ukraine “On the judicial system and the status of the judges” (Information of the Verkhovna Rada of Ukraine 2010, # 41-45, page 529 as amended) are eligible for the lifelong monthly financial support payable in the amount and following the procedure prescribed by Part three of Section 142 of the specified Law, considering the amount of the judge s’ remuneration estimated based on the basic salary of the judges in the higher specialized courts”;

9) in clause one of paragraph 20, replace “determined by the specified Law” with “prescribed by the Law”;
10) in clause one of paragraph 24, exclude “except as mentioned in provision 23 of the same Part” words and digits;

11) remove provision 25;

12) exclude “the Supreme Court of Ukraine” words in subparagraph one of paragraph 45.

2. The Law shall take effect on the day following the publication day.

3. The provisions of this Law shall extend to the legal relations arising in connection with renaming of the Supreme Court of Ukraine as the Supreme Court, as well as liquidation of the Higher specialized court of Ukraine for civil and criminal cases, the Higher economic court of Ukraine, the Higher administrative court of Ukraine.
4. To exercise the provisions of paragraph 41 of Part XII “Final and transitional provisions” of the Law of Ukraine “On the judicial system and the status of the judges”, the judges of the Supreme Court of Ukraine elected before the effective date of the Law of Ukraine “On amendment of the Constitution of Ukraine (in the area of justice)” and included into the staff of the Supreme Court of Ukraine on the effective date of the specified Law, shall, within 20 days following the effective date of the specified Law, submit their requests for enrollment into the staff of the Supreme Court to the Head of the Supreme Court.

Within three days following acceptance of the respective requests, the Head of the Supreme Court shall enroll the judges into the staff of the Supreme Court in the cassation court of the jurisdiction equivalent to the jurisdiction of the judicial chamber of the Supreme Court of Ukraine where the judges have been administering justice.

5. In fulfillment of the provisions of paragraph 71 of Part XII “Final and transitional provisions” of the Law of Ukraine “On the judicial system and the status of the judges”, the High Qualifications Commission of Judges of Ukraine shall complete the relevant assessment within six months following the effective date of the Law, and if the latter is incompetent, within six months following establishment of the competent Commission.

6. In case the Supreme Court, being the controller of the budgetary funds, has to make additional payments from the State Budget of Ukraine in connection with implementation of the certain provisions detailed in the specified Law, the Cabinet of Ministers of Ukraine shall increase the amount of funds allocated to the respective controller of the budgetary funds prescribed by the Law of Ukraine on the State Budget of Ukraine for the relevant calendar year by submitting the

Law of Ukraine on amendment of the Law of Ukraine on the State Budget of Ukraine for the relevant calendar to the Verkhovna Rada of Ukraine for review.

THE UNIFIED AUTOMATED SYSTEM OF THE
VERKHOVNA RADA OF UKRAINE
Signatory: Maslov Denys Viacheslavovych
Certificate:
3FAA9288358EC003040000005D153100E534B400

Expiry date: 08.03.2025 0:00:00

The apparatus of the Verkhovna Rada of Ukraine
04-26/03-2023/52779 of 15.03.2023

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