Venice Commission warned of risks of changes to disciplinary procedures for Ukrainian judges

The European Commission for Democracy through Law (Venice Commission) and the Council of Europe Directorate for Human Rights and Rule of Law are preparing an assessment of draft laws concerning the judicial system and the status of judges in Ukraine.

Lidiya Izovitova, the President of the Ukrainian National Bar Association, the Bar Council of Ukraine, took part in consultations held yesterday, July 24.

She reported that the highest body of the bar self-government had approved a conclusion on draft laws Nos. 13165, 13165-1, and 13165-2, which was sent to all members of the Venice Commission and the Council of Europe Office in Ukraine.

In particular, L. Izovitova spoke about the introduction of the institution of temporary suspension of a judge from the administration of justice for up to four months in connection with disciplinary proceedings, with a categorical prohibition on appealing such a decision.

According to the Ukrainian National Bar Association, this creates three critical problems:

First, it violates the constitutional principles of independence of the judiciary, the right to a fair trial, and the right to legal assistance. The prohibition of appeal makes defense illusory.

Second, criminal procedure mechanisms are being unjustifiably transferred to disciplinary proceedings, where there are no a priori risks to society.

Third, it creates a basis for manipulation, where disciplinary complaints can be used to remove «inconvenient» judges, creating an atmosphere of fear among judges.

The Bar Council of Ukraine concluded that the changes are conceptually unjustified and systematically dangerous for independent justice.

The President of the UNBA, BCU also drew the attention of international experts to violations of international legal norms.

The proposed mechanism, as it prohibits appeals against decisions on the temporary suspension of judges, is contrary to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the right to a fair trial and an effective remedy.

The mechanism also does not comply with the 1985 UN Basic Principles on the Independence of the Judiciary, which prohibit external pressure on judges without appropriate procedural guarantees.

Therefore, the application of repressive measures against a judge before the fact of a violation has been established is contrary to the presumption of innocence and the principle of proportionality, concluded L. Izovitova. Such changes transform the legal system from an instrument of justice into a mechanism of control.

The President of the UNBA, BCU expressed her conviction that any changes to the legislation on the judiciary must be balanced, proportionate and strengthen the independence of the judiciary, rather than creating risks for interference in the administration of justice.