Five fatal flaws

The experts of the Human Rights Agenda platform insist on the immediate elimination of threats enshrined in the constitutional reform.

The dangers imply the delay in ratification of the Rome Statute of the International Criminal Court, the establishment of the Bar monopoly, the absence of a constitutional complaint mechanism, the existence of political influence on judges and the absence of the prosecution reform. According to the experts, these deficiencies can negate all the benefits of changes to the Fundamental Law.

FORGETTING ABOUT THE HAGUE

In December last year, President Petro Poroshenko submitted the bill proposing to postpone the ratification of the Rome Statute of the International Criminal Court (ICC) for three years. His entourage was hesitant to articulate their arguments saying that Ukraine, in this case, would be the first to join the court amid the war, that the membership in three years would protect the Ukrainian military and the like. We can only guess the real reasons why the Head of the State is so afraid of the court in The Hague.

However, the ICC has already received the second one-time declaration from Ukraine on acceptance of jurisdiction and has begun to study the situation in Crimea and Donbas. Therefore, the Ukrainian human rights activists do not accept the arguments of the Presidential Administration. Moreover, not ratifying the Rome Statute now, Ukraine refuses the rights arising from membership in this court, President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment Mykola Hnatovsky says.

For example, today Ukraine has no right to submit for consideration of the court any situations occurring in the country on its own initiative, the Ukrainians cannot work in the office of the ICC prosecutor and cannot be judges.

Oleksandra Matviychuk, the coordinator of the Euromaidan SOS public initiative, believes that the membership in the ICC is, perhaps, the only opportunity for handing over the investigation into crimes in the occupied territories to the international justice in cases where Ukraine cannot administer the justice impartially itself.

The human rights activist also stresses that the proposed constitutional amendments do not allow Ukraine to create a hybrid court involving the international judges and investigators who would prosecute those responsible for international crimes and corruption separately from the ICC. “The Constitution of Ukraine states that only a citizen of Ukraine shall be a judge, and there is no usual prescription ‘unless otherwise provided by law’ in such cases,” Oleksandra Matviychuk says, adding that Ukraine, if ratifying the Rome Statute, would send a signal to the world that we really want to become a part of the international community, which does not tolerate impunity and combats it.

Commissioner of the International Commission against Impunity in Guatemala, Carlos Castresana points to the danger of delay in administering justice. “It took ten years to establish the justice system in Guatemala after the internal war. However, it was not very effective and was soaked with the opponents of this process. Those, who committed war crimes over ten years, began to lead the criminal gangs, and it just emphasizes how important it is to act without wasting time,” he sums up.

CONSTITUTIONAL COMPLAINT

The human rights activists are disappointed with the constitutional amendments, which offer very limited protection for the citizens from the legal acts that violate their constitutional rights.

According to Volodymyr Yavorsky, the member of the Board of the Ukrainian Helsinki Human Rights Union (UHHRU), the constitutional amendments provide for submission of a constitutional complaint in case if an unconstitutional law is applied, i.e. when people are already hurt and all possible legal remedies are used.

“However, the problem is that there are no national protection mechanisms in Ukraine if the law violates the Constitution. A person will not be able to go to court with a demand to repeal the law that violates the Constitution because this dispute is not subject to examination in any court,” he stressed.

Volodymyr Yavorsky suggests stipulating the provision that the Constitutional Court shall consider the constitutionality of laws and the laws on ratification of the international treaties and that any person shall have the right to go to the court with a complaint if a law violates human rights. This provision is applied almost in all the European countries, he explains. Yavorsky also suggests mentioning in the Constitution that the Supreme Court shall have the right to recognize unconstitutional all other regulations – presidential decrees, orders of the Cabinet of Ministers, or have the right to interpret the constitutionality of the laws.

INVIOLABLE PROSECUTOR’S OFFICE

The human rights activists also insist on removal of the references to the prosecutor’s office in the constitutional amendments.

Over the past 20 years, the very mentioning of the prosecutor’s office in the Constitution has hindered the reform of this body, UHHRU’s executive director Arkadiy Bushchenko says. “The prosecutor’s office has not been regarded as part of the executive branch. It has some sort of special status that has complicated the control over the activities of this body, unlike other bodies of executive power. The prosecution authorities are not required to disclose their regulations and to register them with the Justice Ministry. In turn, the Ministry of Justice has no authority to monitor the compliance of these regulations with the Constitution and the laws of Ukraine,” Arkadiy Bushchenko notes.

MONOPOLY OF THE BAR

Ukraine is the world’s first state which stipulates the monopoly of the Bar at the level of the Fundamental Law. And it is a huge mistake, Arkadiy Bushchenko says.

It is proposed that the parties’ interests in the courts shall be represented only by the public attorneys, whose number in the labor market is about 10%, according to rough estimates, Arkadiy Bushchenko notes.

“If the constitutional amendments take effect, the government bodies will have no lawyers, representing the authorities in a huge number of cases in the administrative courts. They will need to become either public attorneys and to be in staff of the relevant authorities, or the authorities will have to hire public attorneys at market prices. I guess that the Bar will start to set its own prices very quickly,” Volodymyr Yavorsky says.

Arkadiy Bushchenko explains that the current legal profession acts now as a private corporation. Such corporations are characterized by closed nature, no accountability to society and the freedom to decide its internal issues as they want to. And it is with these principles of work the legal profession obtains the right to deprive public attorneys of licenses.

Oleksandra Matviychuk points to the experience of Belarus, where the Bar is controlled by the authorities: “This country has ‘hurled out’ of the profession all those who defended the people participating in peaceful assemblies and expressing an alternative point of view.”

JUSTICE REFORM

The Human Rights Agenda platform does not support the replacement of the judiciary. The experts describe such a proposal as radical and suggest stipulating in the constitutional amendments the dismissal of all judges of higher courts and their transfer to the lower level courts. Meanwhile, the judges for the higher courts can be chosen under the new procedure.

The human rights activists also believe that the current constitutional amendments modify the influence on the judiciary on part of the executive power. “We are very concerned by the fact that the vague grounds for disciplinary responsibility of judges leave open the possibility of political influence on the courts,” Arkadiy Bushchenko says.

Moreover, the constitutional amendments do not provide for the objective criteria for recertification of judges. The judges, therefore, will depend on a person who certifies them and leaves them on their posts.

TO BE OR NOT TO BE?

The experts believe that it is necessary to eliminate the threats immediately, despite the fact that the Constitutional Court has approved these changes. The human rights activists see a significant danger of the constitutional amendments in a large number of additions “will be defined in the law.”

“In our opinion, it is a great risk to say that the judicial reform consists in what we will define in the law later, taking into account the political situation, the experience of making laws for three seconds, which later have 400 amendments,” Oleksandra Matviychuk notes.

Mykhailo Zhernakov, the expert of the Reanimation Package of Reforms, agrees with most of the criticism of the Human Rights Agenda, but advocates adopting the constitutional amendments without further delay and correcting the majority of the mentioned drawbacks at the level of the law.

“We cannot stipulate in the Constitution all the procedures and criteria for judicial update. We will have to adjust some things with the law. Therefore, our official position is that the constitutional amendments cannot be voted on in the second reading without a package of bills, which clarify those things,” Mykhailo Zhernakov underlines.

However, Arkadiy Bushchenko emphasizes that while passing such a Constitution, we hope that we will have a smart power in the future. Oleksandra Matviychuk does not believe in smart power tomorrow. She once again emphasizes that it is essential to stipulate a human right to a fair trial in the constitutional reform.

“Talks about a new judicial reform arise in Ukraine every ten years. It usually happens after very unpleasant shocks for our country. The right to a fair trial is one of the fundamental human rights. If we secure it, we will be able to solve many other problems: that of freedom of peaceful assembly, freedom of expression, protection against discrimination, etc.,” Oleksandra Matviychuk says.

NOTE

The Human Rights Agenda platform is the informal coalition of the human rights organizations working in the field of monitoring, analysis and elaboration of legislation in accordance with the basic principles of human rights and fundamental freedoms.

The participants of the platform are the Ukrainian Helsinki Human Rights Union, the Kharkiv Human Rights Group, the Center for Civil Liberties, the Amnesty International in Ukraine, the Human Rights Information Centre, the Center for Law Enforcement Investigations, the Human Rights House in Kyiv, the Social Action centre, the Without Borders project, the Euromaidan SOS initiative.

Den (Day) newspaper