On October 26, the Venice Commission (hereinafter – VC) in Strasbourg promulgated long-awaited Conclusion of Ukraine on changes to the Constitution in terms of justice (full text-English version, Ukrainian version )reflected an analysis of the amendments to its content in the context of the recommendations made in the Previous conclusion, and the basis for additional recommendations.
The discussions in the Constitutional Commission submitted for consideration by the VC documents were provisions on the procedure for reforming the judicial branch of government related to the definition of its membership of: the dismissal of all judges (about 8000) and a set of new or complete re-certification of all judges for the purpose of determining their professionalism, ethical and moral qualities.
Given the explanations of the Ukrainian authorities, the VC and the Directorate General of human rights and rule of law of Council of Europe, p. 36 of the Opinion pointed out the obvious necessity of the choice between the dismissal of all judges and giving them the right to re-submit their candidacy for the position of judge or assess them according to the procedure prescribed by law. The Venice Commission and the Directorate-General expressed the view that exceptional measures may be needed to eradicate corruption, but "the dismissal of all judges appointed during a particular period of time, will not be the proper issue identified by the authorities". According to their position, even the qualification testing specified in section 6 Transitional provisions, should be considered as entirely exceptional and subjected to extremely strict safeguards for the protection of judges, which correspond to the posts they occupy.
As you can see, the VC does not support the position of total dismissal of all judges, as this may lead to the implementation of justice within our state. It doesn't meet European standards and the rules of law (except, perhaps, exceptional procedures, such as constitutional “dyskontuitet”. However the last is not applied in Ukraine). Unlike well-known procedures of reorganization, when the representative of Themis automatically could save post, in this case, the VC considers it necessary to permit interested judges to resign themselves to resign or go through a transparent competition for the new position.
"I think Ukraine got a chance for a real judicial reform. For the first time representatives of our country who worked on the development and implementation of judicial reform, were unanimous in the need for fundamental things: limiting the influence of any political institutions to the court, the introduction of European standards of justice, an effective renewal of the judiciary.We have achieved important social results. Now it is solely a representative body of state authority in making the relevant legislative changes," said the lawyer, member of the NGO "Community Development" Solomiya Starosolska.