In its urgent interim opinion on the draft law on the Supreme Court and certain other laws (as of January 16, 2023), the OSCE stresses that:
- while every state has the right to reform its judicial system, such reforms should always comply with the constitutional requirements of the country, respect the rule of law, and be consistent with international law and human rights standards, as well as OSCE commitments.
- the bill does not completely repeal the problematic disciplinary grounds introduced in 2020; while the disciplinary exemptions unambiguously allow judges to perform their essential judicial functions, the broad and general disciplinary grounds have not been repealed at the same time.
- such grounds can still be used to impose disciplinary penalties on judges performing their functions or taking lawful actions, and thus affect their independence.
- there is a lack of clarity regarding the criteria guiding the assessment of the independence, impartiality and "establishment by the law" of a given court. The strict 7-day deadline for filing an application from the date of notification of the judicial composition remains a requirement that potentially hinders the effective application of the mechanism in practice.
- despite addressing a number of issues, the bill fails to address other fundamental systemic deficiencies undermining judicial independence that have already been highlighted by regional courts, other international institutions, as well as previous ODIHR opinions. These shortcomings relate, in particular, to the lack of independence of the NCJ, the excessive domination of the executive branch over the judiciary and the judiciary, flawed disciplinary proceedings, and overly broad and vague disciplinary grounds that create the potential for arbitrary interpretation and abuse.
- the draft offers no safeguards to prevent challenges to the Supreme Court's disciplinary rulings by panels of judges appointed by the reformed NCJ in the same way as the Supreme Court chambers.