Since Ukraine received independence in 1991, it has dabbled with judicial reforms many times.
Three decades later, the result appears to be an utter failure: 76 percent of the population distrusted the judiciary, according to a Razumkov Center poll published in February.
“I cannot even count how many failed judicial reforms we had for the past six years,” Halia Chyzhyk, a legal expert at the Anti-Corruption Action Center, said at an online event called the High Time for the Real Judiciary Reform in Ukraine on June 23.
It was part of a series of webinars organized by the Zero Corruption Conference, involving the Anti-Corruption Action Center in Kyiv and its partners.
In its current form, the latest attempt at judicial reform seems to be as doomed as previous ones, according to Chyzhyk and other legal experts.
On June 22, President Volodymyr Zelensky submitted a new bill on judicial reform to the Verkhovna Rada.
However, legal experts and anti-corruption activists say that the bill will not lead to any real reform and violates Ukraine’s agreement with the International Monetary Fund, the nation’s top creditor. The President’s Office did not respond to requests for comment.
Deputy Justice Minister Oleksandr Banchuk said at the online event that his ministry had not participated in the drafting of the bill.
“Our plan is (to comply) with the IMF memorandum,” he said. “We have to (adhere to) the provisions of this memorandum. It is our commitment and our duty.”
Banchuk said he hoped it may be possible to amend the bill to make it comply with the IMF deal. He added that, if this does not happen, his ministry would draft a separate bill complying with the memorandum within several months.
Zelensky’s previous judicial reform bill was signed into law in November but it failed to be implemented after the High Council of Justice, the judiciary’s top governing body, deprived foreign experts of a major role in the reform, while the Constitutional Court canceled some of the bill’s clauses.
Toxic council
The current High Council of Justice, which will determine the outcome of the new judicial reform, has a toxic reputation among Ukraine’s civil society. Many of its members face accusations of corruption and ethics violations, which they deny.
According to Ukraine’s memorandum with the IMF, Ukraine was supposed to create a commission including foreign experts in order to fire tainted members of the High Council of Justice if they violate ethics and integrity standards.
However, Zelensky’s new bill does not envisage such a commission.
Under the new legislation, members of the High Council of Justice can only be fired by a majority of the council itself if the bodies that delegated the members to the council approve of such a decision. This makes the cleansing of the council impossible, legal experts and anti-corruption activists say.
According to the new bill, the High Council of Justice will also prepare rules for hiring new members of the High Qualification Commission, another top judiciary governing body. Judicial experts say that this will also prevent real reform from happening.
Violation of IMF deal
“Instead of strengthening the role of international experts in the process and introducing effective instruments of cleansing the High Council of Justice, the draft law strengthens the council, which sabotaged the reform in the first place,” Chyzhyk said at the online panel. “Instead of establishing an independent body for scrutiny of the High Council of Justice, the draft simply suggests that members of High Council of Justice themselves will decide whether to dismiss their peers.”
The council has denied accusations of blocking the reform.
Mykhailo Zhernakov, head of legal think tank DEJURE Foundation, agreed with Chyzhyk.
“The timing is unfortunate,” Zhernakov said at the panel. “We just signed the memorandum with the International Monetary Fund and two weeks later the president introduces this draft law. It’s his signature that’s on the memorandum, and the bill does not agree with the lines of said memorandum. (The bill) was not discussed with our international partners and it was not something Ukraine agreed to.”
IMF reaction
Emmanuel Mathias, a deputy unit chief at the IMF, did not comment on Zelensky’s new bill and said the IMF had not analyzed it yet.
He said, however, that Ukraine would have to strictly comply with specific judicial reform criteria in the IMF memorandum by October to get $5 billion as part of its current IMF program.
“The test day for the measure that the authorities agreed on is by the end of October 2020,” Mathias said. “We will have time to discuss it with the authorities and understand their views. What we will be looking at after October 2020 is just to see whether the memorandum agreed recently is implemented.”
He said that, under the memorandum, “an independent commission should be established to pre-screen potential candidates to the High Council of Justice and assess their integrity.”
“This commission should be able to perform screening of existing High Council of Justice members,” Mathias added. “It will be important to see that at least half of the commission’s members will be respected experts with recognized ethical standards and judicial experience. It will be important that the commission should give these experts a crucial and decisive vote in decisions.”
He also said that “in case of negative assessment by the commission of existing members (of the High Council of Justice) the commission can publish a recommendation for the dismissal (of council members) to the respective appointing authorities.”
“The law should outline the procedures and criteria for the pre-selection process for High Council of Justice candidates and the commission should nominate at least two persons for each vacancy which will be forwarded to appointing authorities designated by the constitution,” Mathias said.
Foreign experts
Zelensky’s new bill also stipulates that a selection panel comprised of three members of the Council of Judges, a judicial self-regulation body, and three foreign experts would choose new members of the High Qualification Commission of Judges, one of the judiciary’s governing bodies.
According to the legislation, foreign experts may be nominated by any international organizations that engage in anti-corruption efforts and judicial issues. The High Council of Justice will then choose any of the nominees.
Chyzhyk, DEJURE and Vitaly Tytych, former coordinator of judicial watchdog Public Integrity Council, argued that this procedure makes it very easy for the High Council of Justice to pick “fake” foreign experts who would rubber-stamp Ukrainian authorities’ decisions instead of independent foreign experts.
Under the previous reform bill, foreign experts were to be selected out of the Public Council of International Experts, which took part in the selection of High Anti-Corruption Court judges last year. Its members were praised by Ukraine’s civil society for independence and professionalism, and their participation was supposed to ensure the selection of an independent and professional High Qualification Commission.
The new reform bill also weakens foreign experts by saying that the appointment of High Qualification Commission members must be approved by at least two foreign experts. Zelensky’s previous bill said that it must be approved by at least three foreign experts
Venice Commission
Chyzhyk argued that Ukraine’s corrupt judiciary had tried to manipulate opinions by the European Commission for Democracy through Law, or Venice Commission, to block foreign experts’ participation in judicial reform.
“In Ukraine, the Venice Commission is used by dishonest judges as a shield against attempts to ensure judges integrity,” Chyzhyk said.
She added that Ukrainian judges often distort the European principle of judiciary independence to entrench their corruption and impunity.
However, Thomas Markert, secretary of the Venice Commission, said that the commission “has no problem with involving international experts in the selection of members of judicial bodies.”
Markert added that international experts should be used as a filter to pre-select judicial officials but cannot directly appoint them without a decision by the High Council of Justice, which has constitutional powers to appoint and fire judicial officials.
“It is important to have a non-corrupt judiciary,” Markert said. “A corrupt judge cannot be independent and impartial.”
Vovk’s court
The experts also discussed the fate of the Kyiv Administrative District Court, which is notorious for its controversial rulings.
Its chairman Pavlo Vovk and other judges of the court were charged with obstruction of justice in August but the case stalled indefinitely after prosecutors failed to send it to trial by the five-day deadline set by a court in November. The judges deny the accusations of wrongdoing.
Ukrainian anti-corruption activists and legal experts have long called for the court’s liquidation.
Chyzhyk called the Kyiv Administrative District Court “the most corrupt court of Ukraine.”
Meanwhile, Banchuk suggested that some types of cases should be transferred from the Kyiv Administrative District Court to the Supreme Court to resolve the problem.
Attacking judicial independence
Vera Jourova, vice president of the European Commission for Values and Transparency, also spoke at the panel.
“The Covid 19 crisis must not become an excuse for backtracking on reform achievements and giving in to oligarch interests,” Jourova said.
She also said that, when there is low trust in the judiciary, “there is an appetite for governments to limit powers” of the courts.
“For such governments, it is easy to attack the judiciary and disbalance constitutional powers,” she said. “Governments don’t risk anything.”
Jourova also said the European Commission was concerned with “increased politicization of anti-corruption institutions” in Ukraine and threats to the independence of the National Anti-Corruption Bureau of Ukraine.
