DEJURE analysis of the bills on judicial reform introduced by the President
17.02.2021
Last weekend President Zelenskyi announced that he will introduce bills on the reform of the High Council of Judges (HCJ) and the District Administrative Court of Kyiv (DACK). On Monday the bills were registered in the Parliament however their texts were uploaded only today morning. All bills are drafted according to the Memorandum with the IMF and formally comply with the obligations that Ukrainian government took upon itself. Here is a short review and our analysis of the bills.
Bill #5067 – On the Supreme Court jurisdiction (i.e. depriving the DACK its exclusive jurisdiction)
The bill envisages the following:

  • lawsuits challenging legal acts of the Cabinet of Ministers, ministries and other central bodies of executive power, the National Bank, and other authorities with the nationwide competence will be reviewed by the Cassation Administrative Court of the Supreme Court;
  • these cases can be appealed to the Grand Chamber of the Supreme Court.
Bill #5068 – On the new procedure for the appointment of the HCJ members and the activity of disciplinary inspectors
The bill envisages the following:

  • all candidates to the HCJ undergo integrity checks conducted by an Ethics Council;
  • the Ethics Council is established for 6 years and comprises of 3 judges or former judges nominated by the Council of Judges, 3 experts nominated by international organisations assisting Ukraine in the anti-corruption and judicial reforms for the last 3 years;
  • the Ethics Council will conduct an ad hoc integrity check of current HCJ members and may recommend their dismissal to the appointing authority. The HCJ member recommended for dismissal is suspended from his/her duties until the appointing authority adopts its decision on the matter;
  • the disciplinary inspectors of the HCJ receive more autonomy. They independently conduct disciplinary investigation (unlike now when they merely assist the HCJ members) and present it before the HCJ chambers. Disciplinary inspectors are appointed on a competitive basis according to the law on civil service.
Parliamentary legal committee has already recommended the Parliament to shorten the terms for alternative bills and request the Venice Commission to provide its opinion on the draft.
Bill #5069 – On administrative liability for not complying with the request of the HCJ disciplinary inspector
The bill establishes administrative liability for not submitting the information to the HCJ disciplinary inspector. Now such liability exists only not complying with the request of the HCJ member.
Although we sincerely welcome these overdue initiatives of the President, the bill #5068 on the reform of the HCJ includes a number of flaws that may jeopardize the anticipated positive outcomes of the reform. The bill #5067 also requires significant changes.
1
It is very unlikely that the HCJ members of low integrity will be dismissed
The EC will not have an authority to dismiss untrustworthy HCJ members. It will merely recommend their dismissal to the appointing body. It is very naive to expect that the corrupt judges, prosecutors, attorneys, etc who intentionally appointed notorious HCJ members will now dismiss them. Moreover, it is also very unlikely that the EC will recommend the dismissal of the HCJ members. The Ethics Council will adopt its decisions by 4 votes 3 of which should be international experts. It will require at least one judge to support the recommendation for dismissal. Thus judges will have a veto right on the dismissal of their peers from the HCJ.

Solution – the EC should have a power to dismiss the HCJ members. Such approach will not contradict the Constitution as the latter is silent on the HCJ members dismissal. Moreover, the Constitutional Court in its opinion of the law 193-IX (bill #1008) merely stated that a subsidiary body of the HCJ should not dismiss the HCJ members. According to the bill #5068 the EC will not be a HCJ subsidiary body. International experts should have a prevailing vote, if the vote splits 3 by 3. This will deprive judges the veto on the dismissal of HCJ members.
2
Judges will veto decent candidates to the HCJ
The Ethics Council adopts its decisions by 4 votes 3 of which should be international experts. If this model is adopted, Ukrainian judges participating in the Ethics Council could veto any decent candidate to the HCJ. Although untrustworthy candidates could be blocked by the international experts, the judges will make sure that the changemakers will never get to be elected. Thus only no name dark horses will have a chance to become HCJ members.

Solution – international experts should have a prevailing vote, if the vote splits 3 by 3. This will give the changemakers a real chance to be elected. Such model was already introduced in law 193-IX (bill #1008) and was not criticised by the CC.
3
The Ethics Council may be forced to recommend candidates of low integrity
The bill requires that the Ethics Council should recommend at least two candidates for one vacant seat in the HCJ. The bill is silent on what should the Ethics Council do, if the number of trustworthy candidates is less than twice the number of the vacant seats. The Ethics Council may be forced to recommend untrustworthy candidates just to comply with this requirement.

Solution – the law should recommend the EC to provide at least two candidates for each vacant seat, but should not force the EC to do so. If the appointing body receives less than two candidates for each vacancy, it may have a right to request an additional round of competition to supplement the existing list with new trustworthy candidates.
4
Untrustworthy HCJ members may be appointed within current competitions
The bill does not address the issue of the competitions to the HCJ that currently take place and foresee no integrity checks of the candidates. If no legal safeguards are adopted before March 9th, the Congress of Judges will elect 4 untrustworthy HCJ members for 4 years. One more vacancy may be filled by the Parliament.

Solution – bill #5068 should provide that all current competitions to the HCJ should be stopped and vacancies should be filled according to the new procedure. Should the Parliament fail to adopt the bill #5068 before the Congress of Judges takes place, a separate law should be passed to prevent any appointments to the HCJ before the bill #5068 is adopted.
5
The most vulnerable categories of cases still remain in DACK's jurisdiction
The review of individual decisions of the Cabinet of Ministers, ministries, central executive bodies, the National Bank, and other authorities of nation-wide jurisdiction (i.e. appointments or dismissals), as well as their actions or inactions, remain within the jurisdiction of the DACK.

Cases within these categories amount to the majority of the notorious DACK decisions including the dismissal of Ulyana Suprun from the post of acting Minister of health, removing Artem Sytnyk as the director of NABU from the register of legal entities, reinstatement of Stanislav Shevchuk - the dismissed head of the Constitutional Court, reinstatement of Roman Nasirov as the head of the Tax Service, the decision on Privatbank nationalization, etc.)

Solution – although all these categories of cases should be taken away from the DACK as it poses a threat to national security and cooperation with international partners, transferring all of them to the Supreme Court will inevitably overload it and, consequently, block its work. Therefore, we believe it is necessary to find an alternative model that would transfer a significant number of the most critical cases to the Supreme Court, but at the same time not overload it.
Overall conclusion
Bill #5069 has no notable flaws. Bills #5067 and #5068 require substantial amendments otherwise they will jeopardize the anticipated reform of the HCJ and the neutralization of the DACK's illegal activities. The Parliament should adopt the law preventing any appointments to the HCJ before the new appointment procedure is adopted.
DJR
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