The Venice Commission has recommended removing a provision introduced by Ukrainian President Volodymyr Zelensky as an amendment to the legal framework governing the Supreme Court of Ukraine.
"The provision reducing the number of judges of the Supreme Court to 100 effectively amounts to a second vetting and should be removed. A vetting of all Supreme Court judges when there are doubts about the integrity of a few of them is clearly not proportionate," the Venice Commission said in its conclusions made public on December 9. "The goal of reducing the number of judges may be pursued at a later stage, once the Supreme Court has cleared its current backlog of cases and access filters have become effective for new cases. The reduction of the number of judges could probably be achieved by means of natural reduction (retirements) or voluntary transfers."
The recommendations concern the amendments to the legal framework in Ukraine governing the Supreme Court and judicial self-governing bodies. They focus on then draft Law No. 1008 on amendments to certain laws of Ukraine regarding activities of the bodies of judicial governance, which was adopted by the Verkhovna Rada on October 16, 2019, as Law No. 193-IX. This law amends several key points of the Law on the Judiciary and the Status of Judges of 2016 and of the Law on the High Council of Justice of 2017.
Law No. 193-IX, among other things, provides for rebooting the new Supreme Court by re-selecting judges and halving their number (from 200 to 100), disbanding the High Qualification Commission of Judges and creating a new one, expanding the powers of the High Council of Justice.
The Venice Commission, having analyzed these legislative changes, recalled that "Ukraine has undergone profound judicial reforms in recent years, and the implementation of some of them is still unfinished." "The reform of the process of the selection of judges and the new composition of the Supreme Court of Ukraine, which began its work in January 2018, has been a marked improvement over the system that existed before. In this situation, convincing justifications have to be presented for yet another reform," it said.
As for the changes proposed by President Zelensky, the Venice Commission said: "A major problem with these changes is, however, that they come too early, in the middle of a very important period of first testing all the judges of first and second instance."
Venice Commission experts are highly critical of a reduction in the number of Supreme Court judges.
"The reduction of the number of judges will trigger an even higher backlog of cases and jeopardize the functioning of the Supreme Court. Due to its current heavy caseload (some 70,000 cases), the Supreme Court will not be able to provide properly reasoned judgments within a reasonable time, contrary to Article 6 ECHR [of the European Convention on Human Rights]," it said.
"The Supreme Court was comprehensively reformed based on legislation adopted by the previous Verkhovna Rada. Doing so again, following elections, sends a message both to the judges and to the general public that it depends on the will of the respective majority in parliament whether judges of the highest court may stay in office or not. This is an obvious threat to their independence and to the role of judiciary in the light of Article 6 ECHR," it added.
The Venice Commission therefore recommends that the focus of reform should be the first and second instance courts. "New judges who passed the re-evaluation procedure should be appointed speedily to fill the high number of vacancies," it said.