The draft law #3711 of President Zelensky is another imitation of the judicial reform
23.06.2020
On 22 June, President Zelensky introduced the draft law #3711 on the judiciary in the Parliament. His previous attempt to give another impulse to the judicial reform was successfully blocked by the High Council of Justice (HCJ) and completely buried by the Constitutional Court.
Amongst the barely positive changes, proposed by the draft law is that the provision on holding the open competition to the High Qualification Commission of Judges (HQCJ) was preserved. However, it will most likely remain only on paper as all the leverage for influence will be concentrated in the hands of unreformed HCJ. The President decided to abandon the idea of cleansing the HCJ from untrustworthy members, and to conserve and at some point even extend the influence of the latter on Ukrainian courts. Such an approach completely conflicts with the international obligations, taken by the Ukrainian government and laid out by the IMF as well as public promises of the President. Below is a short overview of the flaws of the President's draft law and the ways the Parliament can eliminate them.
High Council of Justice
What is proposed by the President's draft law?
What should be changed or proposed instead?
The HCJ will decide on who is successful during the judicial competition and qualification assessment
The HCJ will approve all regulations and methodology of the qualification assessment of judges. Currently, it is done by the HQCJ. The HQCJ will completely turn into a subsidiary body of the HCJ. Its composition will not matter anymore as all the important decisions will be made by the HCJ.
The HQCJ should adopt the methods of qualification assessment of judges
The new composition of the HQCJ has to preserve independent authority to define the methodology and regulations of the qualification assessment of judges and judicial candidates.
The dismissal of the HCJ members becomes more complicated
The HCJ member can be dismissed only by the body, which appointed him/her (the Congress of Judges, the Parliament, the President and others). The dismissal should be initiated by 2/3 of the HCJ members.
Untrustworthy HCJ members should be dismissed upon the integrity checks conducted by an independent Ethics Commission
The law should establish the independent Ethics Commission with the international experts in its composition. The Commission should conduct integrity checks of the current members of the HCJ, those who failed to comply with integrity criteria should be dismissed.
Untrustworthy HCJ members will keep their seats
The President abandoned the idea of conducting integrity checks of all HCJ members as was provided in his previous legislative (initiative law #193-IX).
Untrustworthy HCJ members must be dismissed
The law should establish the procedure of automatic dismissal of current HCJ members, who failed to comply with integrity criteria.
Untrustworthy candidates can become members of the HCJ in future
The draft law does not amend the procedure for selecting HCJ members, which currently allows candidates with a questionable reputation to obtain seats in the HCJ.
The competition to the HCJ should be conducted by an independent Selection Commission
A Selection Commission with the international experts in its composition should conduct the integrity checks of all candidates. Only candidates who received a positive opinion of the Selection Commission could become the HCJ members.
High Qualification Commission of Judges
What is proposed by the President's draft law?
What should be changed or proposed instead?
The HCJ can influence the composition of the Selection Commission of the HQCJ
The Competition to the HQCJ will be held by the Selection Commission, which will comprise of 3 judges, appointed by the Council of Judges and 3 international experts, selected by the HCJ amongst those proposed by international partners. The HCJ could block the appointment of the international experts and select the candidates, nominated by the Ombudsperson, which is under the influence of untrustworthy judges.
The HCJ should not influence the Selection Commission of the HQCJ
Any influence of the HCJ on the composition of the Selection Commission could potentially lead to the blocking of the competition or corrupt its results. The HCJ must be deprived of the discretion to select international experts to the Selection Commission, the Ombudsperson – excluded completely from the process.
The HCJ again will influence the HQCJ selection process
The HCJ will adopt the regulation on the competition to the HQCJ. During the implementation of the law 193-IX, the HCJ illegally established additional requirements for the candidates, and by this favoured candidates amongst judges and eliminated the role of international experts in the process.
The regulation on the competition should be adopted by the Selection Commission itself
Main requirements for the competition should be determined by the law and the rest procedures – by the Selection Commission. This will eliminate the possibility of the HCJ to jeopardise the competition or block it.
Vetoing untrustworthy candidates is complicated
Currently, the law provides that the Selection Commission can adopt a decision if it is supported by 3 international experts. This gives them the possibility to veto untrustworthy candidates. Proposed draft law reduces this number from 3 to 2.
The process of adopting decisions by the Selection Commission should remain unchanged
The current procedure of adopting decisions by the Selection Commission should remain unchanged. A decision should be supported by the votes of at least 3 international experts.
The HCJ could influence the work of the HQCJ by suspending its members for an indefinite period
The draft law provides that the HCJ can dismiss the HQCJ members only by the submission of the HQCJ itself, supported by 2/3 of its composition. However, the HCJ can suspend HQCJ members for an indefinite period to verify whether there are grounds for their dismissal.
The HCJ can use such authority to block the work of the HQCJ as its member will be suspended until the HCJ adopts a separate decision on him/her.
The HCJ can use such authority to block the work of the HQCJ as its member will be suspended until the HCJ adopts a separate decision on him/her.
Suspension of the HQCJ members must be approved only by a decision of the HQCJ itself.
The law could allow the HCJ to conduct the checks of the HQCJ members, however, without their automatic suspension from their duties. The final decision on the suspension should be adopted by the HQCJ upon the submission of the HCJ.
Supreme Court
What is proposed by the President's draft law?
What should be changed or proposed instead?
Judges of the Supreme Court of Ukraine will be transferred to the new SC, and the HCJ will decide who will keep their seats after the qualification assessment
Judges of the old SC should pass the qualification assessment within a year from the moment of their transfer to the new SC. In case they refuse to pass or fail to complete the assessment, they will be dismissed. However, this can be only an imitation as the "peculiarities" of the assessment, and its methods will be determined by the HCJ.
The qualification assessment of judges of the old SC should be the same as for all judges
The "peculiarities" of the qualification assessment established by the HCJ could jeopardise its results and allow unprofessional and untrustworthy judges to keep their seats in the SC.
The number of judges of the SC will be determined by the HCJ
The draft law removes the limitation on the maximum number of judges of the SC (currently 200). Even though after the transfer of the judges of the old SC this number will not be exceeded, the draft law proposes that the HCJ should determine the number of the SC judges at its discretion.
The law should establish a safeguard against excessive enlargement of the SC
If the legislative limitation of the maximum number of the SC judges is eliminated, the law should establish another mechanism of prevention unnecessary increase of the vacancies for the "right" people.
Amendments, proposed by the draft law again push the reform towards the fiasco. The fate of the results of the reform will end up in the hands of the interested parties, which should be reformed as it already happened in the past. The experience of last years showed that such an approach is ineffective. The obligation to cleanse the HCJ, taken by the government and laid out in the Memorandum with IFM, was also excluded from the text of the draft law.
The Parliament has all the possibility to eliminate all the flaws of the draft law by initiating wider discussion and further improvement by the experts, representatives of our international partners and civil society. Main efforts should be directed to depriving the HCJ of the crucial influence on the HQCJ competition and establishment of an effective mechanism of cleansing the HCJ. More details on what should be done for the establishment of an independent court in Ukraine you can find in the Judicial Reform Roadmap.
The Parliament has all the possibility to eliminate all the flaws of the draft law by initiating wider discussion and further improvement by the experts, representatives of our international partners and civil society. Main efforts should be directed to depriving the HCJ of the crucial influence on the HQCJ competition and establishment of an effective mechanism of cleansing the HCJ. More details on what should be done for the establishment of an independent court in Ukraine you can find in the Judicial Reform Roadmap.
DJR
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