Judicial reform bills contain distorted international obligations - ex-NACP member
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Oleksandr Seryogin, a former member of the National Agency on Corruption Prevention (hereinafter - the NACP) and an associate professor at the Institute of International Relations, is convinced that the role of international experts in the formation of the judiciary is interpreted in the draft laws on judicial reform as distorting Ukraine’s international obligations.
He stated this during the second national discussion "Access to Justice: Realities and Prospects".
"We are ready to overfulfill the obligations, according to these bills, to solve the problems that will arise after over fulfillment. The destruction of the judicial selection system, which is the core of statehood and the judicial system, constitutes the end of statehood and a systemic problem. These bills are a distortion, an imitation of performance of international obligations ", - Oleksandr Seryogin considers.
The scientist referred to the text of the letter to the IMF Managing Director dated 02.06. 2020, signed by the President of Ukraine and other officials, stating that "Ukraine will ensure that the management and implementation of the selection process of judges and disciplinary mechanisms will be carried out by persons with a high level of competence, trust, and integrity." However, the implementation of this idea must comply with the Constitution. If international obligations contradict the Constitution of Ukraine, constitutional amendments are required to accede to such international obligations.
"In proposing these bills, we should not rewrite international obligations that have the highest legal force. Moreover, we should not rewrite such in a way that contradicts the Constitution. Speaking about the declaration system, if a body with the involvement of third parties is created, then, according to our legislation, this body performs state functions. Therefore, members of these bodies must submit declarations. However, this body was given an advisory status. At the same time, in the proposed bills, advisory functions are completely changed and the functions of state power are appropriated, which contradicts the Constitution,”- Oleksandr Seryohin stressed.
Similarly, he called that the bills are distorted because of the interpretation of the obligation to strengthen administrative procedures as a mechanism to ensure a high level of judicial review of cases in which the decisions of national authorities are challenged.
The former NACP member also criticized the idea of an expert commission for pre-selection of candidates for the High Council of Justice, which has state functions. In his opinion, this replaces the constitutional subjects of the High Council of Justice formation, prescribed in Article 131.
"There are constitutional entities that have the appropriate powers to form a body of judicial governance. To allow these subjects to choose from among the candidates already pre-elected by someone is, at least, a bold attack on their powers, " - Oleksandr Seryogin said.
This position was supported by the Head of the UNBA Committee on Free Legal Aid Oleksandr Drozdov, who referred to the Vienna Convention on the Law of Treaties. "Article 31 states that" international treaties are interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context, and in the light of its object and purpose." The one should not take from there those things which are not mentioned, and then apply them at the level of the national legislation,"- said Oleksandr Drozdov.
We recall that during the discussion on November 30 such themes as the role of professional communities in the development of legislation on the judiciary and the bar, the constitutional aspects of the participation of international experts in the formation of judicial governance were discussed. You can watch the full video of the event here.
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