An opinion issued today by the Council of Europe’s constitutional law experts, “the Venice Commission”, states that the main obstacles to ensuring an independent judiciary in Ukraine lie in constitutional provisions.

Even though Ukraine is facing a particularly trying time, ensuring an independent judiciary is urgent and essential for a more democratic future, experts said during the Commission’s plenary session.

The Law on the Judicial System and the Status of Judges is rooted in the existing constitution, which prevents fundamental changes in the judicial system, said experts from the Venice Commission and the Council of Europe’s Directorate of Human Rights, who co-authored the opinion.

Experts said that the law was generally “coherent” and “well put together” and appeared to follow previous recommendations. Improvements cited include strengthening the role of the Supreme Court as guarantor of the unity of jurisprudence, an emphasis on the ceremonial role of the President in  judicial appointments and the introduction of a list of grounds for liability for “breach of oath”.

Yet, some serious problems need to be addressed both at constitutional and legislative level: the role of the Verkhovna Rada should be excluded in the appointment to permanent posts, dismissal of judges and lifting their immunities; the composition of the High Council of Justice should be modified to ensure that it mainly consists of judges elected by their peers; the power of the President to establish and liquidate courts should be removed from the constitution.

The qualification assessments of judges should provide appropriate safeguards and be harmonised with the lustration process in Ukraine, the opinion pointed out. “Despite the wish of the authorities to see incompetent and corrupt members of the judiciary removed from office, if this is to be achieved it has to be carried in a fair and proportionate manner, which does not compromise judicial independence,” the experts said.

Co-operation with the Ukrainian authorities to amend the “Lustration Law” was discussed and a new opinion on amendments to the law will be presented at the next plenary session in June.

Other adopted opinions include those on draft amendments to the Media Law in Montenegro, on the Revised Draft Law on the Public Prosecution Office of Montenegro, on the Revised Draft Law on Special Public Prosecutor’s Office of Montenegro, and on the Draft Law on the Prosecution Service of the Republic of Moldova.

The texts of all adopted opinions should be published on the Venice Commission’s website by Monday 23 March 2015.