The European Commission for Democracy through Law, or Venice Commission, has criticized one of Ukraine’s judicial reform bills and called for a crucial role for foreign experts in the reform.
The bill, which was submitted by President Volodymyr Zelensky in February, seeks to fire tainted members of the High Council of Justice, the judiciary’s main governing body, and hire new ones.
The bill has been lambasted by anti-corruption activists and legal experts, who say that the legislation fails to reform the discredited council and violates Ukraine’s commitments before the International Monetary Fund (IMF).
“The Venice Commission and the Directorate deplore that draft law No. 5068 is a partial measure and does not provide for a holistic reform of the judiciary,” the commission said in an opinion published on May 5.
Ethics council
To reform the High Council of Justice, Zelensky’s bill would create the Ethics Council, which would comprise three judges chosen by the Council of Judges, which is selected by judges and regulates Ukraine’s judiciary, and three foreign experts chosen by international organizations.
If the Ethics Council rules that a High Council of Justice member violated ethics and integrity standards, the 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.
However, the provision that at least one Ukrainian judge must vote for the dismissal 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.
According to the commission’s recommendations, at least four members, including two foreign experts, would be needed to adopt Ethics Council decisions. However, if a vote is split three to three, the foreign experts’ opinion should prevail, the Venice Commission argued.
Other problems
The Venice Commission also said that “the provision that the Ethics Council needs to complete its assessment of the current members of the High Council of Justice within three months is unrealistic; this deadline should be extended.”
Moreover, the commission argued that “the law should set out the criteria of professional ethics and integrity; this can be done in the text or by reference to national and/or international sources, such as the UN Bangalore Principles of Judicial Conduct.”
Meanwhile, “the candidacies for the position of national members of the Ethics Council should be announced on the website of the Council of Judges and only judges already evaluated (vetted) should be eligible for appointment,” the commission argued.
The commission also said that “an appeal against the decisions of the Ethics Council should lie with the Supreme Court,” not with the discredited Kyiv District Administrative Court.
Discredited council
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 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.
According to Ukraine’s memorandum with the IMF, Ukraine was supposed to recruit foreign experts to fire tainted members of the High Council of Justice if they violate ethics and integrity standards. The IMF’s October 2020 deadline for this condition has been missed.
In February, the IMF suspended talks with Ukraine on a $700 million tranche due to its failure to deliver on several reforms, including the judicial one.
Tymofiy Mylovanov, a top aide to Zelensky’s chief of staff Andriy Yermak, went so far as hurl expletives on the IMF and claim on Facebook that the fund had “f*cked up.” He said that disagreements with the IMF about the High Council of Justice prevented the sides from reaching an agreement.
Qualification commission
In March, parliament also approved the first reading of a bill that gives the tainted High Council of Justice full control over the selection of another judiciary body, the High Qualification Commission of Judges.
The bill effectively nullifies foreign experts’ role in the process, according to legal analysts and anti-corruption watchdogs.
In April, the parliament’s legal policy committee approved sending the bill to the parliament for a second reading. The latest version of the bill approved by the committee is even worse than the initial one and allows the corrupt establishment to block the appointment of any reformist candidate for the High Qualification Commission, according to DEJURE.
