The European Commission for Democracy Through Law, better known as the Venice Commission, criticized some aspects of Ukraine’s current judicial reform law and praised others, according to a report released by the commission on Dec. 9.
The law, signed by President Volodymyr Zelensky on Nov. 4, introduces amendments to existing legislation that will reform procedures for selecting members of the High Qualification Commission of Judges, a body accused of botching reforms under ex-President Petro Poroshenko, and halve the size of the Supreme Court, which is chosen by that commission.
Commission criticism
The bill halves the number of Supreme Court judges from 200 to 100 in an effort to eliminate corrupt judges, but members of the Public Integrity Council, the judiciary’s civil society watchdog, have criticized the legislation for failing to specify procedures for selecting a new Supreme Court.
It is not clear if the authorities will fire tainted judges or only those disloyal to the government, and the Venice Commission also criticized the law for removing judges to begin with as a move that threatens politicizing the judiciary.
“The irremovability of judges and their security of tenure are the essential core of judicial independence,” the Venice Commission said. “Judges should be appointed permanently until retirement age. In particular, any link between judicial office and the electoral term of the president and parliament has to be avoided. It is obviously dangerous for judicial independence to give the impression to the judges and to the general public that following elections it is up to the discretion of the newly elected political organs of the state whether the sitting judges remain in their position or not.”
The commission continued that the procedure for selecting a new Supreme Court could become subject to the aims of ruling powers.
“In the absence of provisions in the Law, the newly formed High Qualification Commission of Judges and the High Council of Justice have complete discretion on this procedure,” the report reads. “This raises important issues of the rule of law (absence of legal certainty) and the separation of powers, given that the body adopting both criteria and the procedure also applies them in individual cases. This would even allow for ad hoc procedural rules to be adopted for a specific set of evaluations of judges. This may lead to arbitrariness in the evaluations.”
The commission also argued that the reduction of the number of Supreme Court judges will “trigger an even higher backlog of cases and jeopardize the functioning of the Supreme Court.”
Commission praise
Under the reform law, a selection commission comprised of three members of the Council of Judges, a regulatory judicial body chosen by judges, and three foreign experts will choose new members of the High Qualification Commission of Judges.
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, the judiciary’s main governing body, and the High Qualification Commission if they violate the law or standards of ethics and integrity.
“As such, the composition of the Selection Board (for creating a new High Qualification Commission) would seem to build on earlier opinions by the Venice Commission, especially as concerns the participation of international experts,” the Venice Commission said. “In its opinion on the anti-corruption court in Ukraine, the Commission had stated that temporarily, international organizations and donors active in providing support for anti-corruption programs in Ukraine should be given a crucial role in the body which is competent for selecting specialized anti-corruption judges.”
The commission also said that such a “composition fosters the trust of the public and may help in overcoming any problems of corporatism.”
Obstacles for reform
Meanwhile, the sud.ua judicial news site and anti-corruption activists leaked the High Council of Justice’s draft competition rules for creating the new High Qualification Commission of Judges. The High Council of Justice did not respond to a request for comment.
“The High Council of Justice is going to completely obstruct the participation of international experts in the re-launch of the High Qualification Commission,” Vitaly Shabunin, head of the Anti-Corruption Action Center’s executive board, wrote on Facebook. “The High Council of Justice members seriously believe that they will use foreign experts as a façade to appoint tainted members of judicial clans to the High Qualification Commission.”
According to the draft rules, judges will have an advantage over non-judges in the competition.
The commission will only be able to veto candidates if there are criminal convictions or other government decisions on such candidates, which will make it very difficult to eliminate candidates who do not meet integrity standards.
The High Council of Justice will also demand that foreign experts submit Ukrainian notarized translations of their diplomas, which civic activists see as an absurd requirement that will only irritate foreign experts.
Under the rules, candidates for the High Qualification Commission may receive a maximum score of 80, including up to 40 points for anonymous legal knowledge tests, up to 10 points for professional experience, up to 20 points for ethics and up to 10 points for interviews.
Vitaly Tytych, the former coordinator of the Public Integrity Council, argued that this assessment procedure aimed to limit foreign experts’ discretion in rejecting unprofessional candidates and those who do not meet integrity and ethics standards, given the low score for interviews. The obscure procedure for legal knowledge tests also raises doubts about the transparency of the competition, he added.
During last year’s competitions for the Supreme Court and the High Anti-Corruption Court, some of the legal knowledge test questions had more than one correct answer, according to Tytych, Andriy Kozlov, an ex-member of the High Qualification Commission, and Judge Mykhailo Slobodin.
The commission had the opportunity to promote some candidates by telling them which answers it deems correct, according to Tytych, who participated in the competition for the Supreme Court but did not pass the tests. The commission refused to give him his test results, which he says proves they could have been falsified.
Anti-corruption activists have also accused the judiciary’s governing bodies of intentionally sabotaging and delaying the ongoing judicial reform.
Foreign organizations nominated their members to the ethics commission on Nov. 28. However, foreigners are being prevented from nominating their members for creating the High Qualification Commission until the High Council of Justice approves competition rules.
Meanwhile, the Council of Judges has not yet nominated its members to the competition commission for creating the High Qualification Commission of Judges, and the High Council of Justice has not nominated its members to the ethics commission.
