The CCJE Opinion on the Evolution of the Councils for the Judiciary and Their Role in Independent and Impartial Judicial Systems Has Been Presented

On November 29, 2021, there was held a round table organized by the Supreme Court together with the Council of Europe Project and entitled “Support for Judicial Institutions and Processes to Strengthen Access to Justice in Ukraine”. During the event, an Opinion of the Consultative Council of European Judges No. 24 “On the Evolution of the Councils for the Judiciary and Their Role in Independent and Impartial Judicial Systems” was presented.

Valentyna Danishevska, the President of the Supreme Court, thanked the CoE Project for the prompt translation of the Opinion and the opportunity to discuss its main provisions in the expert community. 

"We are guided by the values and standards of the Council of Europe, carefully study the CCJE opinions and use them in the development of the judiciary and when considering disputes related to judicial careers. Soon, the competition commission for the election of HQCJ members and the Ethics Council of the High Council of Justice are starting their work, and Opinion No. 24 is very important for the organization of their work,” the President of the Supreme Court is convinced.

Valentyna Danishevska noted that in 2016 the judiciary had gained a fairly high level of formal independence - the Constitution and laws of Ukraine provide for the judiciary to independently resolve many issues related to the functioning of the judicial system.

"In practice, however, over the last two years, we have observed dangerous phenomena that affect the independence of the judiciary, making it somewhat unbalanced. The independence of the judiciary is the greatest value we must cherish in order for the judiciary to be fair and impartial,” the SC President stressed.

Vsevolod Kniaziev, Secretary of the Grand Chamber of the Supreme Court, thanked the Council of Europe for the work done and stated that the presentation of Opinion No. 24 was timely, as it had taken place at a time when Ukraine's judiciary was undergoing complicated processes, concerning, in particular, the activities of the High Council of Justice.

“Having read the Opinion, I have noticed that most of the provisions contained therein have already been implemented in the legislation of Ukraine in the regulations on the basis of which the judiciary operates. At the same time, there is a need for further legislative work aimed at ensuring that Ukrainian legislation corresponds to the values ​​laid down in the document," Vsevolod Kniaziev said.

The Head of the Council of Europe Office in Ukraine, Representative of the Secretary General of the Council of Europe on the coordination of cooperation programmes of the Council of Europe Steen Nørlov noted that the recommendations contained in the CCJE opinions could be applied in the CoE countries in reforming the judiciary and harmonizing its activities with the standards of the Council of Europe.

“Protecting independence and impartiality is a core principle of the CCJE, but national justice systems play a key role in upholding the rule of law. Opinion No. 24 emphasizes that the judiciary and other branches of government, civil society and the media should cooperate to enhance professionalism, transparency and ethics within the judiciary, so that laws become a culture of respect for the independence of judges,” said Steen Nørlov.

Artashes Melikyan, Head of the CCJE Secretariat, emphasized that the CCJE opinions were a kind of legal framework for judges which allowed them to effectively consider cases at the national level in compliance with international standards.

“Accordingly, CCJE plays an important deliberative role, being a body that summarizes the best practices of the Council of Europe and converts them into so-called soft standards. In addition, references to the CCJE opinions are quite often contained in the judgments of national courts and ECtHR, as well as in the reports and conclusions of the Venice Commission”, - reported Artashes Melikyan.

Duro Sessa, an international expert of the Council of Europe and Judge of the Supreme Court of the Republic of Croatia, noted that Opinion No. 24 confirmed and complemented the positions set out in Opinion No. 10 on the Judicial Council at the service of society. He also said that the next CCJE opinion would address one of the most pressing issues today - the freedom of speech of judges.

Analyzing the provisions of Opinion No. 24, Duro Sessa focused on the legitimacy and accountability of judicial councils, outlined their tasks and requirements for staffing.

"Every judicial council and the judiciary it represents must gain the public's trust and support through excellent, transparent work and accountability. In addition, each council should be empowered with sufficient powers to protect the independence of the judiciary so that judges are free to make decisions on cases without undue external or internal influence,” emphasized Duro Sessa.

Viktor Horodovenko, the Judge of the Constitutional Court of Ukraine, member of the CCJE, said that previous year when the Council of Europe Office in Ukraine had presented the third edition of the documents of the Consultative Council of European Judges, more than 33 thousand decisions of the courts of general jurisdiction of Ukraine had contained references to the CCJE opinions. This year, the figure has almost doubled - as of today, the general courts have applied the CCJE opinions in 60,323 decisions.

Oleksii Malovatskyi, Acting Chair of the High Council of Justice, noted that there were ongoing discussions about the HCJ's right to appeal to the Constitutional Court of Ukraine with constitutional submissions.

"This issue has been repeatedly raised before the Verkhovna Rada of Ukraine and it is very relevant, because the HCJ sees much more problems that exist in the Ukrainian legislation and concern the independence of the High Council of Justice," said the Acting Chair of the HCJ.

Oleksii Malovatskyi also drew attention to the issue of electing members of the High Council of Justice under the quota of the parliament, the term of office and the responsibilities of HCJ members.  

Bogdan Monich, Head of the Council of Judges of Ukraine (the CJU), noted that a number of laws, which were aimed at introducing the next phase of judicial reform, had been adopted in Ukraine. Both at the stage of their adoption and at the stage of their implementation, the CJU, as well as the entire judicial community, emphasized the problematic issues that exist in these legislative acts.

“In Opinion No. 24 we see that quite a few of those reservations expressed by the judiciary are relevant. The CJU insists on the need to amend the legal acts in order to reduce the risks of declaring certain provisions of the law as unconstitutional and in order not to call into question the judicial reform that is currently being implemented," Bogdan Monich stressed.