The President’s Office has drafted a new bill that seeks to unblock President Volodymyr Zelensky’s stalled judicial reform but legal experts say the legislation is flawed and will not lead to genuine cleansing of the judiciary.
The draft bill was obtained by the sud.ua news site, the Anti-Corruption Action Center and DEJURE, a legal think-tank, in recent weeks. The President’s Office did not respond to a request for comment.
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.
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.
However, the new bill that seeks to re-launch the reform was heavily criticized by anti-corruption activists and judicial experts, who argue that in its current form it makes genuine judicial reform impossible.
Specifically, the draft legislation fails to cleanse the judiciary’s discredited governing body, the High Council of Justice, and allows it to have full control over the hiring of another judicial body, the High Qualification Commission.
“Instead of unblocking the reform, cleansing the High Council of Justice and selecting a new High Qualification Commission in a fair competition, the president is giving a carte blanche to the unreformed High Council of Justice,” Halia Chyzhyk, a judicial expert at the Anti-Corruption Action Center, said in a May 21 op-ed for the Dzerhalo Tyzhnia newspaper.
No cleansing of judicial body
The previous judicial reform bill envisaged that an 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.
But the new bill does not stipulate the creation of an ethics 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.
Foreign organizations nominated their members to the ethics commission in November, but the High Council of Justice failed to appoint its members.
The Constitutional Court ruled in March that the wording on the ethics commission did not comply with the Constitution.
DEJURE and the Anti-Corruption Action Center disagree with the court, arguing that the commission complies with the Constitution. DEJURE has urged the President’s Office to keep the ethics commission and change the wording to formally comply with the Constitutional Court ruling.
Foreign experts
The previous judicial reform bill also envisaged 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 by Feb. 7.
The 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.
However, the new bill envisages that three foreign experts on the selection panel 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.
Controversial 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.
Tainted rules
According to the new bill, the High Council of Justice will 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.
“High Qualification Commission members will be selected under the full control of the unreformed High Council of Justice,” Chyzhyk said.
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.
The United States Agency for International Development (USAID) officially told the High Council of Justice that foreign experts’ role cannot be fulfilled due to the rules.
Council’s reputation
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.
Under ex-President Petro Poroshenko, the current High Council of Justice appointed 44 Supreme Court judges who the Public Integrity Council says violated integrity and professional ethics standards. The Public Integrity Council has also accused the High Council of Justice and the High Qualification Commission of effectively rigging the competition for Supreme Court jobs, which they denied.
