One of the first bills President Zelensky submitted to the newly formed Parliament last fall was Bill #1008
. The Rada voted the bill last October, and it came into force as Law 193-IX. Among other things, it aimed at relaunching the judicial governance bodies responsible for the failure
of the judicial reform under the previous administration - the High Qualifications Commission of Judges (the HQCJ) and the High Council of Justice
(the HCJ). The law sacked all incumbent members of the HQCJ. The new ones were supposed to be re-elected with the help of the independent international experts, in a way similar to the recent successful formation of the specialized Anticorruption court
However, the process of adoption of the bill was neither transparent nor inclusive, and that affected its quality. Among the progressive provisions, it included a number of severe flaws
and dangerous provisions, such as a very controversial downsizing of the newly established Supreme Court. The EU and other Western partners of Ukraine expressed
concerns about the latter. Later the Venice Commission severely criticized the downsizing provision in its opinion
, at the same time greenlighting the renewal of the judicial governance bodies.
The biggest flaw of the Law 193-IX was giving too much power over the process of the implementation of the reform to the High Council of Justice
, the same institution that had itself to be significantly renewed as a result. Shortly after, the HCJ completely sabotaged the implementation of the law. The HCJ eliminated
the role of the international experts in the Competition Commission designed to relaunch the HQCJ, as well as failed to delegate on time three members to the Integrity and Ethics Commission aimed at checking the integrity of the HCJ members. Moreover, the HCJ went as far as to blame the international organizations
for this sabotage.
This situation turned out to be another demonstration that the recipes for judicial "self-governance" that work in stable democracies are questionable at best
in transitional countries like Ukraine.
After the 2016 constitutional amendments regarding judiciary, the composition of the HCJ includes "the majority of judges elected by judges". Out of 21 members, 10 are elected by the Congress of Judges, with the President of the Supreme Court as an ex-officio member. The President, the Parliament, Attorneys, Prosecutors, and Legal scholars delegate the rest, 2 members each. The Venice Commission assessed this change as "very positive
" and stated that HCJ deciding on all the matters regarding judicial career is "a very positive and welcome feature to guarantee the independence of the judges"; the EU officials of the highest level made similar comments
However, the reality turned out to be very different not only for the renewal of the judiciary, but also for the independence of the same judges the HCJ was supposed to guarantee. Apart from keeping some notorious judges
on their positions and even promoting
them to the Supreme Court, the HCJ systematically pressures
judges who rule against the interests of powerful politicians.
Such behavior originates from the composition of the HCJ. Giving that self-governance by the judiciary (the least trusted public institution in Ukraine) before cleansing its ranks was a bad enough idea, the compromised judges would not vote for anyone ready to dismiss them. However, the system of appointment has little to do with judicial self-governance. The last time the Congress of Judges voted for four new members, it selected members that were agreed upon
beforehand in the high political offices. All four had issues with their integrity, and 2 other current members were voted in unconstitutionally
Two recent decisions of the Constitutional Court (the CC) only worsened the situation.
, adopted on 18 February 2020, canceled parts of the 2016 judicial reform. It declared unconstitutional the liquidation of the "old" Supreme Court and the lowering of monthly retirement payments for retired judges who did not undergo the qualification assessment. This decision will add 9 "old guard" judges who refused to take part in the competition intended to screen candidates for the "new" Supreme Court. It will also significantly increase the payments to the retired judges, putting additional burden on the state budget in a difficult economic situation.
On 11 March, the CC adopted a decision on the constitutionality
of the Law 193-IX. The Court canceled the downsizing of the number of Supreme Court judges, as recommended by the Venice Commission. At the same time, it declared the HCJ Ethics Commission and reduction of the HQCJ size to 12 members unconstitutional (which means that the Public Integrity Council, an official civil society judicial integrity commission would have much less influence than envisaged), with a very unconvincing reasoning.
Such an approach can be explained
by the composition of the CC and the way it is formed. Currently, 9 out of 15 CC members have a judicial background. This means that the decisions they issued on the status of judges and judicial remuneration largely influence the careers and financial stance of their relatives, family members and former colleagues and, in a way, their own. Therefore, the CC has a tendency to rule in favor of the incumbent judges and the "judicial corporation" in general, which almost inevitably means ruling against any meaningful judicial reform. In addition, despite the constitutional requirement that all the CC judges have to be selected on a competitive basis, in reality the selection process is still largely politicized. It remains unclear, though, whether these decisions were coordinated with the Office of the President, and if so to what extent.