The Constitutional Court of Ukraine has canceled most of President Volodymyr Zelensky’s judicial reform, recognizing a number of clauses as unconstitutional, according to a decision published on March 12.
The judicial reform law was initiated by Zelensky with the ostensible aim of firing tainted judges and creating credible judicial institutions. He signed it in November. However, two commissions tasked with cleansing the judiciary had not been created by the deadlines set under the law.
Civic activists have urged Zelensky to submit a bill to resolve the situation and re-launch the reform, but this has not happened.
Now, the Constitutional Court ruling will likely serve as a fatal blow to efforts to reform Ukraine’s deeply corrupt judicial system, they said.
Issue with ethics commission
Specifically, the Constitutional Court took issue with the ethics commission that was supposed to fire members of the High Council of Justice — the judiciary’s highest government body — and the High Qualification Commission — which vets, hired and fires judges — if they violated the law or standards of ethics and integrity.
The Constitutional Court abolished the ethics commission, saying that its powers are not based on the Constitution.
The commission was supposed to include three members of the High Council of Justice and three foreign experts.
The ethics commission was supposed to be created by Feb. 7. Foreign organizations nominated their members to the commission on Nov. 28, but the High Council of Justice 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.
High Qualification Commission
The Constitutional Court also canceled plans to cut the number of High Qualification Commission members to 12 from 16, saying that the change undermined the process of appointing judges.
The court also ruled that a majority of the commission must be judges.
However, the court did not cancel another change introduced by Zelensky: involving foreign experts in the creation of a new High Qualification Commission.
As part of the reform, a selection panel comprised of three members of the Council of Judges, a judicial self-regulation body, and three foreign experts was expected to choose new members of the High Qualification Commission of Judges 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 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.
The High Council of Justice has denied the accusations of wrongdoing, arguing that its rules fully complied with the law and European standards.
Other clauses
The Constitutional Court canceled reducing the number of Supreme Court justices to 100 from 200 and argued that a cut in Supreme Court justices’ salaries was unconstitutional.
The Constitutional Court also abolished the norms that make it easier for the judiciary’s governing bodies to punish judges accused of wrongdoing.
Reactions
Reactions to the ruling from civil society have been overwhelmingly negative.
“The Constitutional Court canceled Zelensky’s judicial reform,” said the DEJURE Foundation, a legal think-tank, said in a statement published on Facebook. “The purging of corrupt judges from the High Council of Justice and the Supreme Court will not take place. Now it’s useless to expect any positive change in the judiciary.”
Vitaly Tytych, former coordinator of the Public Integrity Council, argued that a genuine judicial reform has never been part of Zelensky and his team’s plan and that the Constitutional Court ruling is the culmination of the Presidential Office’s alleged efforts to sabotage the judicial reform. He does not believe that the Constitutional Court issued its ruling independently from the Presidential Office.
The Presidential Office did not respond to a request for comment.
Tytych argued that the Presidential Office’s initial plan was to create new puppet judicial bodies by manipulating foreign experts and civil society, but, when this attempt failed, they decided to cancel the reform altogether.
Halia Chyzhyk, a member of judicial watchdog Public Integrity Council, describes the move as the triumph of the corrupt judiciary.
“Supreme Court judges are happy because they won’t be cut to 100,” Chyzhyk said. “High Council of Justice members are happy because no ethics commission will fire them. Judges are happy because they will again run the show at the High Qualification Commission. Only Ukrainian citizens, who have not seen justice in courts and will not see it, are not happy.”
Chyzhyk said she saw no legal rationale in the Constitutional Court decision, and first-year students could have justified their decision better.
She called for reforming the discredited Constitutional Court, submitting a new bill to re-launch judicial reform, including legislation on a new and stronger ethics commission that would not be at odds with the Constitutional Court ruling.
Constitutional Court’s reputation
Meanwhile, the Constitutional Court itself has been mired in controversies. Civil society has called for reforming and replacing the court for years.
Several ex-judges of the Constitutional Court are under investigation for adopting a number of decisions that enabled ex-President Viktor Yanukovych to monopolize power in 2010. Specifically, the Constitutional Court canceled the 2004 constitutional amendments on expanding the Verkhona Rada’s powers and thus increased Yanukovych’s authority.
According to records in Yanukovych’s Party of Regions’ alleged off-the-book ledger, judges from the Constitutional Court received $6 million from the Party of Regions for making rulings that helped Yanukovych usurp power. They deny the accusations of wrongdoing.
Sergii Gorbatuk, a former top investigator, told the Kyiv Post in 2019 that his investigators had prepared a notice of suspicion for one of the ex-judges of the Constitutional Court in the case. He says that former Prosecutor General Ruslan Riaboshapka had not authorized the notice of suspicion.
The Prosecutor General’s Office did not respond to a request for comment on the issue.
The Constitutional Court also dealt a blow to its reputation by cancelling the law criminalizing illicit enrichment in 2019.
