President Volodymyr Zelensky has submitted a new bill on judicial reform to the Verkhovna Rada. The text of the bill was published on the Rada’s site late on June 22.
However, legal experts and anti-corruption activists say that the bill will not lead to any real reform and violates Ukraine’s agreement with the International Monetary Fund, the nation’s top creditor. The President’s Office and the IMF did not respond to requests for comment.
“Zelensky is repeating his own mistakes and is not learning any lessons,” said Halia Chyzhyk, a legal expert at the Anti-Corruption Action Center. “His first attempt to reform the judiciary failed miserably in January thanks to the High Council of Justice. And now the president gives an unreformed body (High Council of Justice) all powers to reform the judiciary, which even sounds absurd.”
She said that “it’s clear that the President’s Office does not want any judicial reform that they promised to voters.”
“The bill is another imitation of judicial reform,” said DEJURE Foundation, a legal think tank. “All tools of influence on the process will be in the hands of the unreformed High Council of Justice. The president has decided to reject the idea of ousting tainted members from the High Council of Justice and has decided to preserve or even increase its influence on Ukrainian courts.”
DEJURE said that “this absolutely contradicts the Ukrainian government’s commitments before the IMF and the president’s public promises.”
The previous judicial reform bill was signed by Zelensky into law in November with the ostensible aim of firing tainted judges and creating credible judicial institutions. However, two bodies tasked with cleansing the judiciary had not been created by the deadline set under the law for February, and the attempt failed.
In March the Constitutional Court, which has been also discredited and mired in corruption scandals, dealt a death blow to the previous reform bill, canceling some of its clauses.
Unreformed council
The current High Council of Justice, which will determine the outcome of the new judicial reform, has a toxic reputation among Ukraine’s civil society. Many of its members face accusations of corruption and ethics violations, which they deny.
According to Ukraine’s memorandum with the IMF, Ukraine was supposed to create a commission including foreign experts in order to fire tainted members of the High Council of Justice if they violate ethics and integrity standards.
However, Zelensky’s new bill does not envisage such a commission.
Under the new legislation, members of the High Council of Justice can only be fired by a majority of the council itself if the bodies that delegated the members to the council approve of such a decision. This makes the cleansing of the council impossible, Chyzhyk and DEJURE said.
Zelensky’s previous judicial reform bill envisaged that an ethics commission comprised of three members of the High Council of Justice and three foreign experts would be able to fire members of the High Council of Justice and the High Qualification Commission, another major judicial body.
According to the new bill, the High Council of Justice will also prepare rules for a new competition for High Qualification Commission jobs. Judicial experts and activists say that this will prevent a real reform from happening.
The High Council of Justice will also be able to influence the High Qualification Commission by indefinitely suspending its members.
Under Zelensky’s new bill, almost all decisions by the newly-formed High Qualification Commission will have to be approved by the High Council of Justice. For instance, the High Council of Justice will authorize the procedure for hiring, assessing and vetting judges.
In December the High Council of Justice published rules on the new High Qualification Commission that judicial experts say killed the previous judicial reform attempt. The rules effectively deprived foreign experts of a major role in the selection of High Qualification Commission members.
Foreign experts
The new bill also stipulates that a selection panel comprised of three members of the Council of Judges, a judicial self-regulation body, and three foreign experts would choose new members of the High Qualification Commission of Judges.
According to the legislation, foreign experts may be nominated by any international organizations that engage in anti-corruption efforts and judicial issues. The High Council of Justice will then choose any of the nominees.
Chyzhyk, DEJURE and Vitaly Tytych, former coordinator of judicial watchdog Public Integrity Council, argued that this procedure makes it very easy for the High Council of Justice to pick “fake” foreign experts who would rubber-stamp Ukrainian authorities’ decisions instead of independent foreign experts.
“It’s clear that the High Council of Justice’s sympathies will be on the side of puppet experts,” the Anti-Corruption Action Center said.
Under the previous reform bill, foreign experts were to be selected out of the Public Council of International Experts, which took part in the selection of High Anti-Corruption Court judges last year. Its members were praised by Ukraine’s civil society for independence and professionalism, and their participation was supposed to ensure the selection of an independent and professional High Qualification Commission.
The new reform bill also weakens foreign experts by saying that the appointment of High Qualification Commission members must be approved by at least two foreign experts. The previous bill said that it must be approved by at least three foreign experts.
Ombudsman
Under the new bill, if international organizations fail to nominate experts for choosing a new High Qualification Commission, they can be nominated by Human Rights Ombudsman Lyudmila Denisova. Anti-corruption activists and legal experts argue that this is a loophole for avoiding using foreign experts altogether, which also makes the reform bill meaningless.
Denisova, who is supposed to nominate experts, is also controversial. According to recordings released by the Prosecutor General’s Office and the National Anti-Corruption Bureau of Ukraine, Judge Pavlo Vovk proposed in 2019 that Denisova appoint a High Qualification Commission member in exchange for his court canceling rulings against her by the National Agency for Preventing Corruption.
Denisova, who appointed Mykola Syrosh to the commission in 2019, did not respond to requests for comment.
Vovk was charged with obstruction of justice in August but the case stalled indefinitely after prosecutors failed to send it to trial by the five-day deadline set by a court in November.
