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Working group members:S. Holovatyi, M. Koziubra,R. Kuybida, Yu. Kyrychenko, V. Musiyaka, M.Zhernakov

COMPARATIVE CHART[*] (EXTRACT)

TO THE DRAFT LAW OF UKRAINE ON AMENDING THE CONSTITUTION OF UKRAINE ON IMPLEMENTING THE INDEPENDENT JUDICIARY PURSUANT TO THE EUROPEAN STANDARDS

Current edition of the Constitution of Ukraine / Suggested edition
Title VIIІ / Title VIIІ
JUSTICE / THE JUDICIARY
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Article 125.InUkraine, the system of courts of general jurisdiction shall be formed in accordance with the territorial principle and the principle of specialisation. / Article 125. The judicial system of Ukraine comprises the general and the administrative courts.
The Supreme Court of Ukraine shall be the highest judicial body in the system of courts of general jurisdiction. / The Supreme Court of Ukraine shall be the highest court in the system of general courts.
The respective high courts shall be the highest judicial bodies of specialised courts. / The Supreme Administrative Court of Ukraine shall be the highest court in the system of administrative courts.
Specialized courts may be established, according to law, within the system of general courts.
The network of general courts, the network of administrative courts, their territorial jurisdiction and the number of judges shall be established by law.
To ensure the uniformity of case law in the general and administrative courts, the Supreme Court of Ukraine and the Supreme Administrative Court of Ukraine may resolve jointly according to the procedure established by law.
Courts of appeal and local courts shall operate in accordance with law. / In[the administrative and territorial unit according to Title ІХ]justice may be administered by lay courts (lay judges) in cases and according to the procedure established by law.
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Article 126.Justice shall be administered by professional judges. In cases determined by law justice may be administered also by public assessors and jurors.
The office of a professional judge can be held by a citizen of Ukraine who shall:
1)have higher legal education;
2)have not less than seven years of professional experience in law (as advocate, notary, public prosecutor) or scientific and professing experience in law;
3)have passed the examinationin the national language;
4)have successfully completed special training;
5)have been admitted by competition as determined by law.
For the judges of administrative and specialized courts additional requirements may be established by law.
Judges shall be irremovable.
Professional judges may not belong to political parties or trade unions, or take part in any political activity, hold a representative mandate, hold any other paid offices, perform other remunerated work except for research, teaching,
or creative activities. / Judges may not belong to political parties or trade unions, or take part in any political activity, hold a representative mandate, hold any other paid offices, perform other remunerated work except for scientific, professing,
or creative activities.
A citizen of Ukraine having attained at least twenty five years of age, having a higher legal education, three years of work experience in the legal profession, having resided in Ukraine for at least ten years, and having command of the state language may be recommended for the office of a judge by the Qualification Commission of Judges.
Persons having a professional training in issues of jurisdiction of specialised courts may become judges of such courts. Such judges shall administer justice only as members of a judicial chamber.
Additional requirements to certain categories of judges in terms of experience, age, and their professional level shall be established by law. / Requirements for lay judges, terms and conditions of their activities, as well as procedure for appointment and dismissal shall be determined by law. Specifics of the lay judge status and the procedure of justice administration by a lay judge shall be determined by the law.
Protection of the professional interests of judges shall be provided in compliance with a procedure established by law.
Article 128.The first appointment as a professional judge to the office for a five-year term shall be made by the President of Ukraine. All other judges, except for the judges of the Constitutional Court of Ukraine, shall be elected by the Verkhovna Rada of Ukraine for unlimited term in compliance with a procedure established by law. / Article 127. The judge shall be appointed for unlimited term by the Decree of the President of Ukraine based on the decision of the High Council of Justice not later than in ten days after the receipt of the latter’s decision by the President of Ukraine.
The High Council of Justice shall appoint a judge to the position in a respective court by competition results.
The judge’s mandate shall commence since taking the oath at the High Council of Justice.
Judges can be transferred bythe High Council of Justice only upon their consent.
The Chairman of the Supreme Court of Ukraine shall be elected to his office and dismissed from such office by the Plenary Assembly of the Supreme Courtof Ukraine by secret ballot in compliance with a procedure established by law. / A chief judge and deputy chief judge shall be elected and dismissed by the meeting of judges of the respective court by secret ballot for the term and in compliance with the procedure established by law.
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Article 131.The High Council of Justice shall operate in Ukraine with the following issues being under its authority: / Article 131. The High Council of Justice shall operate in Ukraine, which shall:
1) submit a proposals for the appointment of judges to office or for their dismissal from office; / 1) take the decision on the appointment of a judge and submit it to the President of Ukraine;
2) appoint a judge to the position in the respective court;
3) transfer a judge from one court and another;
2) adopt decisions on the violation by judges and prosecutors of the incompatibility requirements; / 4) suspend a judge in cases stipulated by part 3 of Art. 128 of the Constitution of Ukraine;
5) terminate judge’s powers in cases stipulated by part 4 of Art. 128 of the Constitution of Ukraine;
6) dismiss a judge in cases stipulated by part 5 of Art. 128 of the Constitution of Ukraine;
7) give its consent to taking a judge into custody;
3) execute disciplinary proceedings regarding judges of the Supreme Court of Ukraine and judges of high specialised courts, and the consideration of complaints regarding decisions on bringing judges of courts of appeal and local courts, and prosecutors to disciplinary liability. / 8) consider appeals against the decision of the disciplinary commission of judges on the disciplinary responsibility of a judge and approve final decision on this matter;
9) consider and solve the matters of organisational and financial support of courts according to the law;
10) take actions to ensure the judicial independence;
11) consider appeals against the decisions on disciplinary liability of the public prosecutor and approve the final decision on this matter.
The High Council of Justice shall comprise twenty members. Each of the Verkhovna Rada of Ukraine, the President of Ukraine, the Congress of Judges
of Ukraine, the Congress of Advocates of Ukraine, and the Congress
of Representatives of Higher Legal Educational Establishments and Research Institutions shall appoint three members to the High Council of Justice, and the All-Ukrainian Conference of Employees of the Public Prosecution – two members to the High Council of Justice. / The High Council of Justice shall comprisetwenty members.
All-Ukrainian Congress of Judges shall elect nine members of the High Council of Justice from among the activejudges or resigned judges.
The Committee on electing the members of the High Council of Justice shall elect nine members of the High Council of Justice based on equal representation from advocates and human rights defenders; public prosecutors; scientists and law professors. The Verkhovna Rada of Ukraine and the President of Ukraine shall form the Committee on electing the members of the High Council of Justice in equal parts from among persons having immaculate reputation and high respect in the society.
The Chairman of the Supreme Court of Ukraine, the Minister of Justice of Ukraine and the Prosecutor General of Ukraine shall be ex officio membersof the High Council of Justice. / Chief Judge of the Supreme Court of Ukraine and the Chief Judge of the Supreme Administrative Court of Ukraine shall be ex officio members of the High Council of Justice.
The tenure of the elected members of the High Council of Justice shall be three years. A member of the High Council of Justice may not hold this position for two successive terms.
One-third of the elected part of the High Council of Justice shall be subject to annual rotation.
The members of the High Council of Justice are working full time and may not combine these activities with any other paid work except for scientific, professing and creative activities.
The High Council of Justice shall , according to the law, establish qualification, disciplinary and other commissions, judicial administration, the NationalSchool of Judges.
The organisation and procedure of the activities of the High Council of Justice shall be determined by the law.
Article 131-1. To ensure the protection of judicial independence, protection of the judges’ professional interests and support to the efficient functioning of the judiciary, the judicial self-government shall be exercised.
The procedure of judicial self-government authorities formation and operation shall be established by law.
Article 132. Support the state prosecution and ensuring procedural management of the pre-trial investigation in the court shall be effected bythe Public Prosecution Service of Ukraine.
The organisation and procedure of the activities of the Public Prosecution Service of Ukraine, status of the public prosecutor and guarantees of his independence shall be determined by the law.
Article 133. To ensure the person’s right to defence and to provide legal assistance, the professional bar shall operate.

ІІ. Transitional Provisions

1. This Law shall take effect from the day that follows its publication, and shall be promulgated taking into consideration clauses 2-10 of this Title.

2. Courts of general jurisdiction and administrative courts shall be created and begin their activity in accordance with a law, provided that this shall occur no later than one year following the effective date of this Law.

3. Judges of the Supreme Court of Ukraine and of higher specialized courts elected to their offices prior to the effective date of this Law shall have their authority terminated and shall acquire the status of retired judges, starting from the day of the start of activity of the Supreme Court of Ukraine and the Supreme Administrative Court of Ukraine that shall be created in accordance with this Law.

At least half of the judges of the Supreme Court of Ukraine and the Supreme Administrative Court of Ukraine that shall be created in accordance with this Law shall be individuals having a scholarly degree who have not held the office of a professional judge in the past.

4. For a period of six months following the effective date of this Law, a professional judge appointed (elected) to office prior to the effective date of this Law shall have the right to submit an application for appointment to judicial office according to procedure defined by clause 5 of this Title.

After a period of one year from the effective date of this Law, a judge who has not submitted such an application shall have his authority terminated automatically, unless such judge has been removed from office or had his authority terminated on other grounds.

A judge who has submitted an application for appointment but failed to pass the selection procedure shall have his authority terminated automatically, starting from the day that follows the publication of a decision affirming the lack of grounds for judicial appointment.

5. A Temporary Commission for Selection and Appointment of Judges shall be established to carry out the selection and appointment of professional judges from among those professional judges appointed (elected) prior to the effective date of this Law, as well as to exercise the authority of the High Council of Justice specified in Clause 1 of Paragraph 1 of Article 131 of the Constitution of Ukraine (as amended by this Law) for a period of three years following the effective date of this Law. Said Commission shall consist of eleven members, at least half of which shall be retired judges.

Citizens of Ukraine meeting the criteria of integrity and independence, having impeccable reputation, and having professional experience as an justice of the Constitutional Court of Ukraine (in its original composition), as a judge or an ad hoc judge of the European Court of Human Rights or human rights advocacy experience with civic organizations that have been active in the area of protection of human rights for more than ten years shall be eligible to serve as members of the Temporary Commission for Selection and Appointment of Judges.

Candidates for membership on the Temporary Commission for Selection and Appointment of Judges shall be nominated to the President of Ukraine within a period of one month following the effective date of this Law, only by individuals who intend to become members of the Temporary Commission for Selection and Appointment of Judges or by civic organizations that have been active in the area of protection of human rights for more than ten years. Nominations shall include information on candidates, along with a justification on their meeting the criteria specified in Paragraph 2 of this Clause.

The President of Ukraine shall appoint members of the Temporary Commission for Selection and Appointment of Judges only from among candidates nominated in accordance with this Clause, not later than three months following the effective date of this Law.

The first session of the Temporary Commission for Selection and Appointment of Judges shall take place within a period f ten days following the appointment of all of its members.

The Temporary Commission for Selection and Appointment of Judges shall carry out its activity on the basis of these Transitional Provisions and a special law. Prior to the adoption of such law, the Temporary Commission for Selection and Appointment of Judges shall be authorized to regulate the manner of its activity, as well as the procedure for selection, appointment and transfer of judges through Regulations of the Temporary Commission for Selection and Appointment of Judges.

The Temporary Commission for Selection and Appointment of Judges shall adopt its decisions by a majority vote of its members as set forth by this Law. Decisions of the Temporary Commission for Selection and Appointment of Judges shall be final and shall not be subject to appeal,

The Temporary Commission for Selection and Appointment of Judges shall cease its activity after a period of three years following the effective date of this Law.

6. The High Council of Justice shall be formed within a period of three months following the effective date of the law regulating its status and the manner of its activity.

The High Council of Justice shall become competent on the day of swearing of the oath by all members of the High Council of Justice. The authority of the Council of Judges of Ukraine shall be terminated on the same day, provided that this shall occur no later than one year following the effective date of this Law.

The authority of the High Council of Justice shall be terminated on the effective date of this Law.

7. Prior to the start of activity of the High Council of Justice, its authorities shall be exercised by the Council of Judges of Ukraine, save as for the authority of the High Council of Justice specified in Clause 1 of Paragraph 1 of Article 131 of the Constitution of Ukraine (as amended by this Law), which shall be exercised by the Temporary Commission for Selection and Appointment of Judges for a period of three years following the effective date of this Law.

8. To ensure compliance with Paragraph 3 of Article 131 of the Constitution of Ukraine (as amended by this Law), the authority of four members of the High Council of Justice elected from among active judges or retired judges, as well as of two members from among other persons, who are the oldest in age as compared to other members of the High Council of Justice, shall be terminated on the last day of the first year of competence of the High Council of Justice.

The authority of four additional members of the High Council of Justice elected from among active judges or retired judges, as well as of two members from among other persons, who are the oldest in age as compared to other current members originally elected and appointed to the High Council of Justice, shall be terminated on the last day of the second year of competence of the High Council of Justice.

9. The Public Prosecution Service of Ukraine shall be established by way of reorganization of the public prosecution as set forth by law, provided that this shall occur no later than two years following the effective date of this Law.

10. Provisions of Paragraph 2 of Article 131-2 of the Constitution of Ukraine (as amended by this Law) concerning representation of a person in the court of cassation jurisdiction only by an advocate shall take effect following the adoption of relevant amendments to procedural legislation, provided that this shall occur no later than two years following the effective date of this Law.