ANALYSIS OF CONSTITUTIONAL ISSUES IN UKRAINE ACCORDING TO INTERNATIONAL AND REGIONAL GUIDELINES

The study was conducted by Professors Louis Aucoin and Christie S. Warren under contract No. AID-121-C-11-00002. The authors' views expressed in this publication do not necessarily reflect the views of the United States Agency for International Development or the United States Government. The analysis focused on 21 constitutional issues identified by the Venice Commission and other commentators as potentially problematic in the current Constitution of Ukraine. Almost all of these issues bear directly on judicial independence and impartiality, issues the European Charter on the Statute for Judges recommends be embedded at the highest levels of domestic law. The study incorporated several distinct steps, including analysis of international laws and guidelines, regional guidelines, and comparative analysis of constitutions in the region. The analysis began with the right to a fair trial within a reasonable time. International guidelines, including Article 9(3) of the International Covenant on Civil and Political Rights and the Universal Charter of the Judge, require that anyone arrested or detained on a criminal charge be brought promptly before a judge or other officer authorized by law to exercise judicial power and be entitled to trial within a reasonable time or to release. Regional guidelines, including Article 6 of the European Convention on Human Rights, also require a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The analysis found that the current Constitution of Ukraine does not provide for the right to a fair trial within a reasonable time. In contrast, the Constitutions of Romania, Poland, and Lithuania provide for this right, while the Constitutions of Moldova, Georgia, and Kosovo do not. The European Court of Human Rights has criticized Ukraine for failing to provide trials within a reasonable period of time, and it is recommended that the Constitution be amended to provide for this right. The analysis also examined the establishment of court structure/network. International guidelines, including Article 14 of the International Covenant on Civil and Political Rights, require that the judiciary have jurisdiction over all issues of a judicial nature and have exclusive authority to decide whether an issue submitted for its decision is within its competence as defined by law. Regional guidelines, including the Report on "European Judicial Systems – Edition 2014 (2012 data): Efficiency and Quality of Justice," define a court as a body established by law and appointed to adjudicate on specific types of judicial disputes within a specified administrative structure. The analysis found that the current Constitution of Ukraine does not provide for the establishment of a court structure/network that meets international and regional guidelines. In contrast, the Constitutions of Romania, Poland, and Lithuania provide for the establishment of a court structure/network that meets these guidelines, while the Constitutions of Moldova, Georgia, and Kosovo do not. The analysis recommends that the Constitution of Ukraine be amended to provide for the establishment of a court structure/network that meets international and regional guidelines. The study also examined other constitutional issues, including the role and jurisdiction of the Supreme Court, the role and jurisdiction of the Constitutional Court, direct/indirect access to the Constitutional Court, specialized courts, the High Judicial Council, the High Qualification Commission, appointment and transfer of ordinary judges, the role of the President in judicial appointments, competitive selection of judges, probationary period for judges, permanent tenure for judges, judicial immunity, impeachment of judges, retirement age for judges, dismissal of judges, and the term of office of the prosecutor general. The analysis found that the current Constitution of Ukraine does not meet international and regional guidelines in many of these areas, and recommends that the Constitution be amended to provide for the establishment of a court structure/network that meets these guidelines. The study concludes that the current Constitution of Ukraine does not meet international and regional guidelines in many areas, and recommends that the Constitution be amended to provide for the establishment of a court structure/network that meets these guidelines. The analysis provides a basis for comparison with other constitutions in the region and highlights the need for constitutional reform in Ukraine to ensure that the country meets its international and regional obligations.