Statement of Human Rights Agenda Platform regarding amendments to the constitutional justice fundamentals

Recently, the President of Ukraine called on the Verkhovna Rada of Ukraine to approve the draft of amendments to the Constitution in the part of Justice, Reg. No. 3524 (hereinafter – the Draft) in the coming weeks.

Human rights organizations welcomed the resolve of the Ukrainian authorities on judicial reform. That is why we would like to draw particular attention both of the President and people’s deputies to the fact that the quality of the proposed amendments to the Constitution is more important than the pace of reform. We believe that this Draft creates such a serious threat to justice, that its adoption may cause the reverse effect and generally undermine the purpose for which these amendments are accepted.

So, the Draft contains an unacceptably large number of blanket provisions that actually converts the future provisions of the Constitution to “pig in a poke”.  In practice, this will allow the Parliament and the Government to decide independently and on their own what one or another provision of the Constitution means. These threats cannot be neutralized by the adoption of the package of “good implementing laws”, which has to be voted for along with these amendments. Because the very next day a package of “bad laws” can be voted for on their replacement. And, given the longtime tradition of the Parliament in a matter of hours to approve major government decisions in favor of political interests, this approach does not help protect against dramatic changes in fundamental principles even when the Basic Law of the State already modified in the part of the Justice is in effect. Therefore, the main purpose of the Constitution is to protect the Ukrainian people from the tyranny of the Parliament and Government, will not be achieved through this Draft. In addition, voting amendments to the Constitution “packaged” with ordinary bills is a direct violation of procedures.

It is worth to emphasize the most important shortcomings of the Project that undermine the right to a fair trial. Human rights organizations emphasize that writing amendments to the Constitution solely for reasons of “good governance” and forgetting about human rights can build a dictatorship, which is quite often brilliantly provided by the same “good governance”.

The draft amendments to the Constitution should make provision for clear guarantees of the right to a fair trial, focusing on the needs of the whole Ukrainian society. In particular:

1. Cancel part 1 of the Final and Transitional Provisions of the Draft in the part which adjourns the enactment of the part 6 of article 124 of the Draft and for three years closes for Ukraine an opportunity to ratify the Rome Statute and to join the International Criminal Court.
2. Delete the second sentence of article 151-1 of the Draft, which puts insurmountable barriers for an ordinary person in the view of submitting a constitutional complaint to the Constitutional Court of Ukraine, and give people a real opportunity to defend themselves from dictatorial laws regardless of the politicians.
3. Exclude from the article 133-2 of the Draft a regulation on representation in court exclusively by lawyers that converts Ukraine into the first country in the world that at the constitutional level set the monopoly of a shop corporation, thereby limiting its own citizens in their right to access to justice.
4. Exclude from the Draft any references to the General Prosecutor’s Office, thereby depriving it of its “sacred status”, which during all years of independence was impeding its cardinal reforming at the level of laws and served the cause of the opaque backroom bidding for the post of Attorney General;
5. Deprive the Higher Council of Justice of the authority to prosecute judges to disciplinary responsibility, which is used as a tool of pressure on judges via representatives of the Parliament, the Prosecutor’s Office, the President, etc., for this purpose make the respective amendments to the article 131 of the Draft of Amendments to the Constitution.

We want to especially emphasize that any amendments to the Constitution in the part of justice must embody the idea of the independence of the judiciary from the other branches of Government. In the rule-of-law state Court is not so much a state body as an above-the-state one. Although it is part of the state apparatus, its function is to protect the individual from unlawful assault of the state. So often it has to judge the state maintaining its impartiality. Equally dangerous to justice is both pressure from the Government and that from the street side. Therefore, the Court could not be an instrument for the implementation of the political sentiments of the authorities or the population — it has to work solely on the basis of provisions of the law.

Thus, the amendments to the Constitution in part of the justice in the Draft contain significant flaws and bear considerable risks that cannot be justified even by provided in its body positive novels.

Human rights organizations are addressing the Parliament with a request to consider the proposed above. For this purpose, gather the proper number of signatures under the amendments to the Draft, register them as a Bill, and send them to the Constitutional Court of Ukraine for consideration and after its receipt to adopt it in general.

Events in the Parliament around the election of Attorney General conclusively demonstrated that the one and only condition for carrying out quick and drastic reform was and remains the political will only. We hope that the authorities will be able to find an adequate and balanced response to the existing public demand as for building an independent judicial branch of Government.

In case of any questions please contact Iryna Dymuch: 050 34 11 388, human.rights.agenda.ua@gmail.com

The Human Rights Agenda Platform is an informal coalition of Human Rights organizations performing monitoring analysis and working on the necessary changes in legislation bring them in line with basic human rights and freedoms. Members of the Platform include: Kharkiv Human Rights Group, Center for Civil Liberties, Amnesty International Ukraine, Center of Information on Human Rights, Center for Law Enforcement Studies, Human Rights Blg in Kyiv, Center “Social Action”, Euromaidan SOS. 

The statement is supported by the member of the working group of the Human Rights Agenda on the ratification of the Rome Statute Civic Alternative.