Elections to the High Council of Justice (HCJ) as an important stage of the judicial reform are directly related to the constitutional reform. Board member of the NGO “Center of Policy and Legal Reform,” expert of the constitutional reform group of the Reanimation Package of Reforms Yuliya Kyrychenko has told TheReformsGuide project about what exactly is going on with amendments to the main law of the country and how this affects justice, anti-corruption measures and decentralization. The expert has specified the key aspects that should help to understand whether there are any changes within this reform.
Reformation of courts, creation of the High Council of Justice
The expert believes that the amendments relating to the administration of justice are the most successful part of the constitutional reform. In particular, in judicial reform, legislative framework of which (the Law of Ukraine “On the Judicial System and Status of Judges”) was adopted on June 6, 2016. “These constitutional amendments allowed to reform the judicial system, remove political dependence within the process of appointment of judges, and most importantly, gave an opportunity to renew judges through the renewal of the Supreme court of Ukraine and higher courts composition,” the expert said.
Also, the institutions involved in the justice system are being reformed now: the High Council of Justice has been created. Today, this constitutional body is responsible for the functioning of the independent judiciary system, the appointment of judges and their dismissal.
Slowdown of the Constitutional Court creation
The process of reforming the Constitutional Court of Ukraine is being delayed. Thus, the constitutional litigation is extremely inefficient. The new Draft Law “On the Constitutional Court of Ukraine” is under consideration in the Parliament. The law had to be adopted by Sept. 30, 2016; however, it has undergone only the first reading.
«Complete separation of the Constitutional Court from the system of general jurisdiction courts is considered to be a right step of the reform. Although the Constitutional Court is named so, it is a political institution that monitors the implementation of the Constitution by the central authorities. And, accordingly, it isn’t court in a classic sense giving the Constitutional Court some chances to reduce political influence on the institution,” the expert said.
Moreover, a new civil right is being introduced allowing people to appeal directly to the Constitutional Court for the protection of their constitutional rights if that violation occurred as a result of unconstitutional law activities. Before, only a small group of at least 45 people’s deputies, the President of Ukraine, the Ukrainian Parliament Commissioner for Human Rights, the Supreme Court on the appeal of lower-level courts have had this right.
According to the expert, the fact that the new Draft Law “On the Constitutional Court” has not been adopted as a whole has a positive aspect because it is imperfect. “In a certain way, the new version of the document restricts the constitutional complaint institute, which was introduced by the constitutional reform in 2016, depriving legal entities of public law to appeal to the Constitutional Court. It also concerns appeals of local government bodies’ representatives, which is surprising, taking into consideration the declared state policy on decentralization,” the expert noted.
In the same way, the opportunities aimed at protection of the constitutional rights of individuals are being narrowed. In particular, the Draft Law “On the Constitutional Court” contains the warning that a person has to prove the unconstitutionality of a provision, to prove a violation of constitutional law during the consideration of his/her case in general jurisdiction courts.
Also, the expert notes that the authors of the Draft Law talk openly about the desire to narrow the constitutional complaint institute, being concerned about a growing number of complaints, which will be very difficult for the Constitutional Court to cope with. According to the expert, these fears are premature. Moreover, the introduction of the constitutional complaint will cause the changes related to the form of the Constitutional Court functioning: the panel, the senate, and the Grand Chamber. Thus, it will help the Court to manage the growing number of cases.
Absence of decentralization support in the Constitution
Absence of constitutional changes in terms of decentralization is a separate issue of the constitutional reform at the moment. “As far as we can see there is decentralization, and amalgamation of communities is real. But without constitutional changes, these communities are delegitimized,” Yuliya Kyrychenko emphasized, “In fact, we can get a dual power at the local level. The first still exists because of the validity of the Constitution unaltered in the corresponding paragraphs, and the second one occurs naturally as the decentralization is necessary for the survival of the country.”
According to the expert, the necessary changes to the Constitution haven’t been adopted due to the artificial accession of the conflict in the East to this issue.
In addition to the above key aspects of the constitutional reform, the expert drew attention to the absence of changes in terms of the main element of this reform – the government form reform, distribution of authority in the power triangle Parliament-President-Government. “After the Revolution of dignity, this reform had been precisely requested, but it became irrelevant after the new presidential and parliamentary elections, and thus, it is deliberately concealed,” the expert said.
Text written by Dmytro Zinchuk for The Reforms Guide