Gianni Buquicchio, head of the European Commission for Democracy through Law (the Venice Commission), on June 8 criticized Ukraine’s two main judicial reform bills and called for a bigger role for foreign experts.
Buquicchio made his remarks at Democracy in Action: Zero Corruption, a conference organized by the Anti-Corruption Action Center and other civil society groups.
“The bill (on the High Qualification Commission) does not meet the Venice Commission recommendations and we do not support it,” he said. “The High Council of Justice needs to be vetted before it is entrusted with the setting up of the High Qualification Commission. This is imperative or judicial reform will be doomed.”
The bills, which have been passed in the first reading, aim to reform the judiciary’s two discredited governing bodies, the High Council of Justice and the High Qualification Commission of Judges.
Anti-corruption activists and legal experts have criticized both bills, saying they would fail to reform the courts, nullify foreign experts’ role in judicial reform and break Ukraine’s commitments to the International Monetary Fund (IMF).
The President’s Office and parliament’s legal policy committee did not respond to requests for comment.
High Qualification Commission
In March, parliament approved the first reading of the bill on selecting a new High Qualification Commission of Judges, the gatekeeper that decides whether someone gets to become a judge.
The selection panel for choosing the Qualification Commission would comprise three Ukrainian judges and three foreign experts. At least four panel members will be needed to approve candidates.
This means that Ukrainian judges will be able to block the appointment of any reformist candidates, according to DEJURE, a legal think tank. This would effectively erase the foreign experts’ role in the process, according to legal analysts and anti-corruption watchdogs.
Instead, the analysts think that the selection of High Qualification Commission members would be fully in the hands of the discredited High Council of Justice, a body that appoints judges. This council would choose 16 appointees out of 32 candidates nominated by the selection panel.
“The High Qualification Commission should not be merged into or submitted to the High Council of Justice as long as the latter is not reformed and vetted,” Buquicchio said.
Under the bill, half of the new High Qualification Commission members would be judges. Civic activists think this will preserve the old corrupt judiciary.
In April, the parliament’s legal policy committee approved the bill for a second reading despite objections by civil society and the Venice Commission. The reading is scheduled for next week.
“The prevailing weight of the international component should be recognized for the High Qualification Commission,” Buquicchio said. “This option is difficult for the state and judges to accept. But we strongly believe it is necessary.”
High Council of Justice
The other bill, which deals with the High Council of Justice, was approved by parliament in the first reading in May. The role it gives to foreign experts is less decisive than the Venice Commission recommends.
“Mechanisms with an international expert component are capable of ensuring an objective approach to candidates,” Buquicchio said.
To reform the High Council of Justice, the bill would create the Ethics Council, made up of three Ukrainian judges and three foreign experts.
If the Ethics Council rules that a High Council of Justice member violated ethics and integrity standards, that member would be suspended immediately. The bodies that appoint High Council of Justice members would then be able to fire the suspended member.
Under the bill, the Ethics Council’s decisions would require the agreement of all three foreign experts and at least one of the three Ukrainian judges.
Requiring at least one Ukrainian judge’s vote would make it effectively impossible to fire a tainted High Council of Justice member, according to legal think tank DEJURE and the anti-graft watchdogs Anti-Corruption Action Center and AutoMaidan.
The Venice Commission proposed changing the voting procedure to require the votes of at least four members, including two foreign experts, to adopt the Ethics Council’s decisions. When the vote is split three to three, the foreign experts’ opinion should prevail, the Venice Commission argued.
The High Council of Justice has been involved in numerous corruption scandals and is known for appointing judges linked to illegal schemes.
In September, the council unanimously refused to suspend notorious judge Pavlo Vovk, who is involved in Ukraine’s most high-profile judicial corruption case.
In wiretapped conversations released by the National Anti-Corruption Bureau of Ukraine, Vovk mentioned the involvement of Andrii Ovsiienko, head of the High Council of Justice, along with other council members in his alleged corruption schemes. Council members did not respond to requests for comment.
