The High Council of Justice, the judiciary’s main governing body, on Dec. 11 published rules that anti-corruption activists claim effectively kill ongoing judicial reform.
The judicial reform, which was signed into law by President Volodymyr Zelensky on Nov. 4, envisages replacing the discredited High Qualification Commission of Judges, a body that vets, hires and fires judges. The law also stipulates halving the size of the Supreme Court.
The law is intended to re-launch ex-President Petro Poroshenko’s judicial reform, which Zelensky and his team say was botched and compromised due to the appointment of tainted judges.
However, the new rules now cast doubt on whether Zelensky’s reform will succeed.
Oksana Lysenko, a spokeswoman for the High Council of Justice, said she could not immediately comment on the substance of the accusations. She accused anti-corruption activists of bias and unacceptable and unconstructive criticism.
NGOs’ criticism
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 judiciary’s civil society watchdog.
Under the reform law, a competition commission comprised of three members of the Council of Judges, a body chosen by judges, and three foreign experts will choose new members of the High Qualification Commission of Judges. However, the role of foreign experts is expected to be diminished under the new rules.
“The rules completely destroy the role of international experts in the selection of new High Qualification Commission members,” the Anti-Corruption Action Center said. “Thus the High Council of Justice puts an end to the judicial reform launched by the president.”
Halia Chyzhyk, an expert at the Anti-Corruption Action Center and a member of the Public Integrity Council, said that the High Council of Justice’s rules prove once again that the discredited council should be fully replaced.
“Members of the High Council of Justice are usurping power during the competition for the High Qualification Commission, and international experts will have no influence whatsoever on the competition,” she said. “According to this scenario, judges controlled by judicial clans will become High Qualification Commission members, which means that there will be no change.”
Vitaly Tytych, the former coordinator of the Public Integrity Council, argued that now it is up to Zelensky and the Verkhovna Rada to react to the High Council of Justice’s move. He urged the authorities to pass legislative amendments to reverse the High Council of Justice’s rules and allow foreign experts to have a crucial role in choosing the High Qualification Commission.
The Presidential Office did not respond to a request for comment.
Scandalous rules
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. The tests and their assessment will be controlled by the High Council of Justice.
Under the rules, candidates for the High Qualification Commission may receive up to 50 points for anonymous legal knowledge and Ukrainian language tests, up to 10 points for professional experience and up to 20 points for ethics.
Previously the Public Integrity Council has accused judicial authorities of interfering in and falsifying test results, which was denied by the High Council of Justice and the High Qualification Commission.
The High Council of Justice’s rules also require the competition commission 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.
The rules also seek to give a priority to representatives of Ukraine’s notoriously corrupt judiciary and thus prevent its cleansing, according to the watchdog.
If a judge and a non-judge get an equal number of points, the judge will have a priority right to be selected as a member of the High Qualification Commission. The rules also require that judges constitute a majority on the High Qualification Commission.
Under the rules, the High Council of Justice will be able to fire any member of the competition commission if it deems that they fail to fulfil or properly fulfil their duties or to attend a sufficient number of commission meetings.
The rules also give the High Council of Justice the right not to appoint candidates nominated by the competition commission.
The High Council of Justice also demanded that foreign experts submit Ukrainian notarized translations of their diplomas, which civic activists see as an absurd requirement that will only irritate foreign experts.
Other problems
Meanwhile, the High Council of Justice has been previously accused of delaying the reform. The council has not yet announced a competition for the High Qualification Commission.
Neither the Council of Judges nor international organizations have been able to nominate their members for choosing the High Qualification Commission because the competition has not been announced yet.
Under the judicial reform law, 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.
Foreign organizations nominated their members to the ethics commission on Nov. 28 but the High Council of Justice has not appointed its members yet.
On Dec. 10, the High Council of Justice also triggered a backlash by canceling its earlier decision to fire Yevhen Ablov, a controversial Kyiv Administrative District Court judge accused of numerous violations.
