Ukrainian President Volodymyr Zelensky has set to reform the judicial system of the country, but local anti-corruption activists and judicial experts claim the president missed all the reasonable deadlines and that the reform may now be on the brink of collapse.
Meant to re-launch Ukraine’s judicial system, the reform law was passed by the Ukrainian parliament in October and signed by Zelensky in November. More than one month later, two commissions tasked with cleansing the judiciary have not been created yet; foreign experts who are supposed to help Ukraine with reforming the judiciary haven’t been appointed either.
Reasonable deadlines for carrying out the reform have been missed, Vitaly Tytych, the former coordinator of judicial watchdog Public Integrity Council, and its member Halia Chyzhyk told the Kyiv Post on Jan. 6. The High Council of Justice, the judiciary’s highest governing body, did not respond to a request for comment on the issue.
“The judicial reform continues as planned, and the process of forming a reformed, open, transparent and fair judiciary in Ukraine has not been completed yet,” the Presidential Office said in a response to a request for comment.
Concerns over the judicial reform have mounted since the High Council of Justice on Dec. 11 published rules that anti-corruption activists and judicial experts say effectively deprive foreign experts of a major role in the reform.
The High Council of Justice has denied the accusations of wrongdoing, arguing that its rules fully complied with the law and European standards.
Hiring committee
Under the reform law, by Feb. 7 there must appear the new High Qualification Commission of Judges, a body that hires, fires and vets judges in Ukraine. But for experts, it seems unlikely to happen by the deadline set by the law.
To find the members for the High Qualification Commission there must also appear a hiring committee. Comprised of three members of the Council of Judges – a body chosen by judges – and three foreign experts, the committee will need to choose new members for the High Qualification Commission.
And since this hiring committee hasn’t been formed yet, Chyzhyk thinks it’s impossible to create the High Qualification Commission by Feb. 7.
The High Council of Justice, the judiciary’s highest governing body, on Dec. 12 announced that the selection of the High Qualification Commission would formally start on Dec. 26.
Meanwhile, members of the hiring committee must be nominated within 20 days after the selection process for the High Qualification Commission is announced to start, according to the council’s rules. But there’s a legal collision: the deadline already expired on Jan. 1 if the “start” referred to Dec. 12, when the High Council of Justice published its rules for the reform; if it referred to Dec. 26, the deadline will expire on Jan. 15.
In any case, the Council of Judges nominated three members for the hiring committee back on Dec. 20, while foreign experts – which help Ukraine battle corruption including in the judicial system – haven’t nominated their three members to this day.
Candidates for the High Qualification Commission, in turn, can apply by Jan. 13.
Protesters wearing masks that are meant to symbolize Ukraine’s corrupt judges rally in front of the Supreme Court building on Sept. 13, 2017. Concerns over the judicial reform law passed in October 2019 by the Ukrainian parliament have mounted since the High Council of Justice on Dec. 11 published rules to introduce this reform — anti-corruption activists and judicial experts say these rules effectively deprive foreign experts of a major role in the reform.
Controversial rules
One of the reasons for foreign organizations’ reluctance to nominate members could be the fact that the High Council of Justice on Dec. 11 published rules that anti-corruption activists claim effectively kill ongoing judicial reform.
The High Council of Justice’s new rules were harshly criticized by the Anti-Corruption Action Center, the DEJURE Foundation legal think-tank, and members of the Public Integrity Council.
“The rules completely destroy the role of international experts in the selection of new High Qualification Commission members,” the Anti-Corruption Action Center stated on Dec. 11 on its website. “Thus the High Council of Justice puts an end to the judicial reform launched by the president.”
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 assessment will be controlled by the High Council of Justice.
The High Council of Justice’s rules also require the hiring committee to use only official and government sources and the burden of proof “beyond a reasonable doubt” – a rule applicable to criminal trials rather than competitions for jobs. As a result, the commission will be prevented from rejecting tainted candidates on the basis of a reasonable doubt about their integrity and professional ethics, the Anti-Corruption Action Center said.
Members of the Public Integrity Council and anti-corruption activists have called for passing new legislation to cancel those rules and change the deadline for creating the hiring committee. However, such legislation has not even been submitted to the parliament yet.
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 must be created by Feb. 7, too.
Foreign organizations nominated their members to the ethics commission on Nov. 28, but this time, it’s the High Council of Justice that hasn’t appointed its members yet.
