President Volodymyr Zelensky’s judicial reform bill published on Feb. 17 has been lambasted by anti-corruption activists and legal experts.
The bill, which Zelensky submitted to parliament on Feb. 12, ostensibly seeks to bring Ukraine into compliance with its commitments to the International Monetary Fund (IMF).
The IMF mission concluded on Feb. 13 that Ukraine needs to show more progress before it can receive another tranche in the existing stand-by lending arrangement. This includes reforming the High Council of Justice, the judiciary’s highest governing body and getting rid of its controversial members.
However, judicial and anti-corruption watchdogs argue that Zelensky’s bill would not clean up the council to the IMF’s standards.
“The bill does not ensure the main thing – a decisive role for international experts in the cleansing of the High Council of Justice,” Mykhailo Zhernakov, head of legal think tank DEJURE, said on Feb. 17. As a result, “the council’s composition will remain unchanged.”
The President’s Office did not respond to requests for comment.
Cleansing the council
The bill would create an Ethics Council. It 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.
The Ethics Council’s decisions would require the agreement of all three foreign experts and at least one of the three Ukrainian judges.
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.
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 DEJURE and the anti-graft watchdogs Anti-Corruption Action Center and AutoMaidan.
“It will be impossible to fire dishonest council members unless at least one judge supports such dismissal. Undoubtedly judges delegated to the Ethics Council will soon come to an agreement with High Council of Justice members and will not vote for their dismissal,” Zhernakov said.
Foreign experts on the Ethics Council would be able to block the appointment of the most odious candidates to the High Council of Justice in the future.
However, since at least one Ukrainian judge must vote for a High Council of Justice candidate, reformist and outspoken candidates will most likely be blocked, according to DEJURE, the Anti-Corruption Action Center and AutoMaidan.
The watchdogs said that corrupt officials are likely to appoint “dark horse” candidates about whom little is known, to make it hard for foreign experts to vet them.
Other problems
Another problem is that the creation of the Ethics Council would require the approval of the head of the High Council of Justice. This would give the High Council of Justice the opportunity to block the Ethics Council’s creation.
Also, the wording that defines eligible foreign organizations that could appoint experts to the Ethics Council would exclude reputable organizations such as USAID, because they are foreign but not technically “international,” the watchdogs said.
Furthermore, the Council of Judges is planning to appoint four new members to the High Council of Justice on March 9 without integrity checks. Another four High Council of Justice positions are also vacant and may be filled soon by prosecutors, legal scholars and parliament without integrity checks.
This means that there will be no job openings on the High Council of Justice in the next four years. DEJURE proposed suspending the appointment of the new members until reform legislation is adopted.
Finally, the controversial Kyiv District Administrative Court would be able to cancel decisions made by the Ethics Council.
Discredited council
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 deadline has been missed.
The High Council of Justice was involved in numerous corruption scandals and is known for appointing judges allegedly linked to illegal schemes.
In September, the council unanimously refused to suspend notorious judge Pavlo Vovk, head of the Kyiv District Administrative Court, who faces charges of organized crime, abuse of power, bribery, and unlawful interference with government officials. Vovk denied the accusations.
The council’s members are allegedly implicated in the Vovk case. In wiretapped conversations released by the National Anti-Corruption Bureau, 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 a request for comment.
Vovk’s jurisdiction
A second bill submitted by Zelensky and published on Feb. 17 seeks to transfer some of the powers of the Kyiv District Administrative Court to the Supreme Court.
The Kyiv District Administrative Court would be stripped of the right to consider appeals against actions taken by national executive bodies, including the Cabinet of Ministers, the ministries and state agencies.
However, the Kyiv District Administrative Court would still be able to commit unlawful actions by ordering the reinstatement, dismissal or suspension of top officials or blocking competitions for state jobs, according to the Center of Policy and Legal Reform.
The center proposed stripping the court of these functions as well.
