On Feb. 28, Ukraine’s leading anti-corruption and judicial watchdogs urged President Volodymyr Zelensky to immediately unblock his own judicial reform, which has been stalled since last year.
The judicial reform law was initiated by Zelensky to oust tainted judges and create credible judicial institutions, and he signed it in November. Under the law, a new trustworthy High Qualification Commission – a body that hires and fires judges – was meant to replace the old discredited commission by Feb. 7.
However, in December, the High Council of Justice published rules that effectively deprive foreign experts of a major role in the reform. As a result, foreign organizations refused to delegate their experts, and a selection panel to choose the High Qualification Commission was not appointed.
The Presidential Office did not respond to a request for comment. The High Council of Justice has blamed foreign organizations for failing to nominate experts and also cited what it views as defects in the reform law.
“The information that international organizations did not nominate their representatives to the selection panel due to the defects of the (council’s) rules is not true,” the High Council of Justice said.
The Anti-Corruption Action Center, the legal think tank DEJURE Foundation, the AutoMaidan anti-corruption group, Transparency International Ukraine and the Center for Political and Legal Reforms called on Zelensky on Feb. 28 to submit legislation to unblock the reform.
“It is Zelensky who is responsible for judicial reform,” Kateryna Butko from AutoMaidan said at a news briefing. “He is the guarantor of judicial reform in our country, and it is he who raised his electoral rating during the presidential election campaign by promising to cleanse the judiciary. But now he’s failing to act.”
She argued that “despite society’s support for him, Zelensky is effectively playing into the hands of the (corrupt) judiciary by failing to submit a new bill and to unblock the judicial reform.”
The legislation proposed by anti-corruption watchdogs would give full powers to the selection panel, including foreign experts, to choose the High Qualification Commission and would deprive the High Council of Justice of the ability to block judicial reform.
“The selection panel shouldn’t depend on the High Council of Justice,” Halia Chyzhyk from the Anti-Corruption Action Center said at the briefing. “The High Council of Justice is only interested in getting a puppet High Qualification Commission that would not prevent the council from appointing puppet judges.”
The legislation to unblock judicial reform was proposed to the Presidential Office in early January. Anti-corruption activists and judicial experts told the Kyiv Post that initially it was approved by the Presidential Office and G7 countries.
However, since the replacement of Andriy Bohdan with Andriy Yermak as Zelensky’s chief of staff on Feb. 11, the Presidential Office appears to have lost interest in the reform, sources familiar with the matter told the Kyiv Post. They were not authorized to speak to the press about it.
Andriy Kostin, head of the Verkhovna Rada’s legal policy committee and a lawmaker from Zelensky’s Servant of the People party, also blamed foreign experts on Feb. 25. He proposed increasing the list of international organizations to delegate foreign experts to resolve the issue.
Vitaly Tytych, a former coordinator of judiciary watchdog Public Integrity Council, interpreted Kostin’s words as an effort to find “fake” foreign experts who would rubber-stamp Ukrainian authorities’ decisions instead of independent foreign experts.
Foreigners’ reaction
On Dec. 11, the High Council of Justice published rules on the new High Qualification Commission that anti-corruption and judicial experts say killed the ongoing judicial reform.
The United States Agency for International Development (USAID) officially told the High Council of Justice on Dec. 26 that foreign experts’ role cannot be fulfilled due to the council’s new rules.
USAID said that the High Council of Justice ignored its recommendations.
“The rules in the form that was accepted makes it extremely difficult for USAID to ensure international experts’ participation in the selection panel,” USAID said.
The rules contradict the judicial reform law and practice during the selection of the High Anti-Corruption Court and the National Agency for Preventing Corruption, according to USAID.
USAID urged the council to revise its rules and said it was ready to delegate experts if its recommendations were taken into account.
Scandalous rules
Specifically, the High Council of Justice’s rules effectively deprive the foreign experts of the authority to assess and choose High Qualification Commission members by requiring that they can only select members based on tests, the Anti-Corruption Action Center said. But the tests and their assessments will be controlled by the High Council of Justice.
The High Council of Justice’s rules also require the selection panel to use only official and government sources, with a burden of proof “beyond a reasonable doubt” – a rule applicable to criminal trials rather than competitions for jobs. As a result, the selection panel will be prevented from rejecting tainted candidates on the basis of reasonable doubt about their integrity and professional ethics, the Anti-Corruption Action Center said.
The rules also seek to give priority to representatives of Ukraine’s notoriously corrupt judiciary and thus undermine the purpose of the reform, according to the watchdog.
If a judge and a non-judge get an equal number of points, the judge will have priority to be selected as a member of the High Qualification Commission. The rules also require that judges constitute a majority on the commission.
Under the rules, the High Council of Justice will be able to fire any member of the selection panel if it deems that they fail to properly fulfil their duties or to attend a sufficient number of panel meetings.
The rules also give the High Council of Justice the right not to appoint candidates nominated by the selection panel.
The High Council of Justice also demanded that foreign experts submit notarized translations of their diplomas in Ukrainian, which civic activists see as an absurd requirement that will only irritate foreign experts.
Meanwhile, the judicial reform also envisages that a separate ethics commission comprised of three members of the High Council of Justice and three foreign experts will be able to fire members of the High Council of Justice and the High Qualification Commission if they violate the law or standards of ethics and integrity.
The ethics commission was supposed to be created by Feb. 7. Foreign organizations nominated their members to the ethics commission on Nov. 28, but the High Council of Justice has so far failed to appoint its members.
The council claimed that the foreign organizations that sent experts to the ethics commission were not the ones who were authorized to do so.
