The Constitutional Court has recognized Ukraine’s 2016-2017 judicial reform as partially unconstitutional, according to a decision published by the court late on Feb. 19.
Specifically, the Constitutional Court ruled that the liquidation of the old Supreme Court in 2017 as part of the judicial reform was unconstitutional.
The decision triggered indignation among judicial experts and anti-corruption activists. They call for the Constitutional Court itself, which has been mired in controversy and corruption scandals, to be reformed and replaced.
The Constitutional Court ruling has cast doubt on the fate of both the judicial reform carried out under ex-President Petro Poroshenko and the one currently being implemented by President Volodymyr Zelensky.
The Constitutional Court argued that the Verkhovna Rada had no constitutional right to liquidate the old Supreme Court. However, the Constitutional Court recognized the creation of the new Supreme Court as constitutional, effectively leaving Ukraine with judges of the two Supreme Courts co-existing at the same time.
The Constitutional Court ordered the Verkhovna Rada to bring the law in line with its decision.
It is not clear how exactly the decision will be implemented. Judicial experts from the DEJURE Foundation, a legal think tank, predict that nine non-retired judges of the pre-2016 Supreme Court will be allowed to join the current Supreme Court.
Zelensky may bring any imaginable legislation to the Verkhovna Rada in an effort to comply with the decision, Iryna Shyba from DEJURE said. Shyba does not rule out that he may use it to liquidate the current Supreme Court, although she believes it to be unlikely.
Vitaly Tytych, the former coordinator of judicial watchdog Public Integrity Council, argued that Zelensky may use the Constitutional Court decision to bring the Supreme Court, whose fate hangs in the balance, under greater control.
The Constitutional Court also ruled that any judges who did not pass vetting due to unprofessionalism or violations of ethics have a right to get remuneration for the duration of their lives. Such judges include those who have switched their allegiance to Russia’s proxies in the Donbas, according to DEJURE.
Remuneration for such judges may total Hr 100,000 to Hr 200,000 monthly, DEJURE said.
Poroshenko’s reform
The judicial reform carried out under Poroshenko had the stated goal of expelling corrupt and unprofessional cadres from the judiciary. However, independent judicial experts in Ukraine believe the reform largely failed.
Under Poroshenko, the High Council of Justice and the High Qualification Commission of Judges appointed 44 Supreme Court judges who the Public Integrity Council says violated integrity and professional ethics standards. The Public Integrity Council has also lambasted the High Qualification Commission for appointing tainted judges and for its arbitrary methodology, which allowed the commission to appoint judges without providing any justifications. The High Qualification Commission and the High Council of Justice have denied accusations of wrongdoing.
Zelensky’s reform
In an effort to re-launch Poroshenko’s botched judicial reform, the Verkhovna Rada passed another judicial reform in October, and it was signed by Zelensky in November.
According to the deadline set by the law, a new High Qualification Commission – a body that hires and fires judges – must have been set up by Feb. 7. However, the deadline was missed because the High Council of Justice, the judiciary’s highest governing body, failed to appoint foreign experts and local officials to form the High Qualification Commission on time.
Foreign experts have officially told the High Council of Justice that they cannot participate in the reform because rules that the council published in December effectively deprive them of a major role in the process.
Anti-corruption activists have called on Zelensky’s team to submit another bill to resolve the situation, but this has not happened yet.
Constitutional court
Meanwhile, the reputation of the Constitutional Court itself has suffered setback after setback for many years.
Several ex-judges of the Constitutional Court are under investigation for adopting several 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 Prosecutor General Ruslan Riaboshapka has not yet authorized the notice of suspicion.
The Prosecutor General’s Office did not respond to a request for comment on the issue.
The Constituional Court also dealt a blow to its reputation by cancelling the law criminalizing illicit enrichment in 2019.
