Iryna Shyba, Mykhailo Zhernakov for Dzerkalo Tyzhnia
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This week the Parliament adopted two draft laws on judicial reform.
The first one (No. 3711-д) concerns the establishment of a new High Qualification Commission of Judges (HQCJ), the “HR department” of the judiciary. The second one (No. 5068) orders to reform the High Council of Justice (HCJ), the “Board of Directors” of the Ukrainian judiciary.
The HQCJ holds competitions for judicial positions (there are about 2,000 vacancies, according to the State Judicial Administration) and must complete a qualification assessment, that is, a professional aptitude screening of Ukrainian judges. The HCJ makes final decisions on the appointment, promotion, sanctioning and dismissal of all judges in Ukraine except the Constitutional Court judges. Moreover, a judge cannot be arrested or at least forcibly brought to court without the HCJ authorization, and the infamous head of the CACK Pavlo Vovk and other judges of low integrity are actively taking advantage of this.
These two bodies together extend full influence over the activities of the courts in Ukraine and often abuse this power. The previous High Qualification Commission of Judges failed the re-assessment of judges and let 44 judges who lacked integrity slip into the Supreme Court. The current High Council of Justice is known for being ridden with corruption scandals and covering up judges of low integrity by every means, including those involved in the disgraceful "Vovk's recordings".
How will the adopted draft laws solve these problems?
Draft law No. 3711-д regulates the formation of a new composition of the High Qualification Commission of Judges. The previous composition of this authority was dissolved by the Parliament in November 2019, and the formation of a new one was prevented by the HCJ opposition.
Due to this, filling more than 2,000 judicial vacancies in the country was impossible, thus, citizens have been waiting for years to have even the simplest cases considered.
The new HQCJ will be formed by a Selection Commission, which will include three international experts and three current/retired judges. International experts will play a decisive role in this. The experience of the High Anti-Corruption Court (HACC) creation has shown that the decisive vote of the international experts will bar all candidates with a tarnished reputation.
The Selection Commission must submit a list of 32 candidates for 16 vacancies in the HQCJ to the High Council of Justice. And it is the High Council of Justice that will decide who to appoint to the HR authority of the judiciary.
The dubious reputation of the High Council of Justice itself created a risk that the 16 most loyal rather than the worthiest ones among the 32 shortlisted candidates will be included in the final HQCJ composition. That is why it is so important to ensure the cleansing of HCJ of its dishonest members, which becomes possible through draft law No. 5068.
It provides for the establishment of the Ethics Council with a tenure of 6 years, which will also include three judges and international experts, and international experts will also have the decisive vote.
The Ethics Council will check the current and future members of the HCJ for integrity. Those who fail the test are immediately removed from office. They can only be saved from dismissal if the Congresses of judges, prosecutors, attorneys and scholars who appointed them to give a majority vote to retain them on their positions within 3 months of the decision of the Ethics Council.
It is not so easy to gather the majority of votes by secret ballot for the retention of those who have been officially recognized as dishonest by reputable experts. In addition, public and international attention to this process is also very keen. For example, US Secretary of State Anthony Blinken recently said that the HCJ and HQCJ reforms are a top priority in Ukraine.
The Ethics Council will operate for the next six years and will check the integrity of HCJ candidates. The term of office of a member of the High Council of Justice is only four years. Thus, in a few years, we will have the composition of the highest judicial body fully formed with the casting vote of independent international experts, as was the case with the HACC.
Simultaneous reform of the HCJ and HQCJ will be able to break the mutual cover-up culture in the judiciary, its purification from “Maidan judges”, bribe-takers and simply unprofessional staff. Professional members of the HQCJ and HCJ will be able to influence the solution of other problems in the judiciary, such as staff shortages or funding for the sending of court summonses.
When will the changes come?
If the President signs both draft laws by the end of July, in September 2021 the Ethics Council of the HCJ and the Selection Commission of the HQCJ will be formed.
After that, the Ethics Council will have 6 months to check the integrity of the current members of the HCJ and to recommend their dismissal – until about March 2022. Congresses of judges, prosecutors, attorneys, and law schools must decide within three months whether to dismiss a HCJ member or keep him or her in office.
If the Congresses do not take a decision within three months, the HCJ member is automatically dismissed by law, in June 2022.
The competition for the High Qualification Commission of Judges should start in September and last for about six months, until March 2022. Thus, in a year the composition of the main bodies in the judiciary can be radically renewed.
However, full-fledged changes in the courts will become obvious a bit later. The High Qualification Commission will have to complete the re-assessment of about 2,000 judges who did not pass it during the previous term of the body. In addition, more than 2,000 vacancies in the courts need to be filled.
Excessive acceleration of evaluation and competition can be detrimental to their quality, so a full renewal of the judiciary will have to take several years. However, the real threat of dismissal for violating the oath will encourage judges to consider the case more objectively and to think twice about whether to resort to traditional schemes.
However, the High Council of Justice will not be prevented from resolving the critical problems of the judiciary right now. This involves addressing the notorious District Administrative Court of Kyiv, the issue of 55 dishonest judges in the Supreme Court, and the lack of funding.
What can go wrong?
There are several realistic scenarios that could disrupt or significantly slow down judicial reform. Moreover, all these scenarios can occur simultaneously and have a cumulative effect.
Scenario No. 1: Appealing against the draft laws to the Constitutional Court
It is quite possible to bring together 45 MPs who benefit from maintaining the status quo in the judiciary and submit a constitutional appeal to the Constitutional Court, which will abolish judicial reform. In particular, the “Opposition Platform - For Life”, “Batkivshchyna” and “European Solidarity” factions did not vote for the law.
After all, this is exactly what happened with Zelensky's first attempt to reform the judiciary – the Constitutional Court repealed key provisions of the President's laws back then.
That is why the reform of the CC, promised in the autumn by the Servant of the People party management, is so important in order to ensure a truly transparent competition for the positions of the CC judges.
Scenario 2: Reform blocked by the High Council of Justice
The High Council of Justice in the fall of 2019 became the main leverage of blocking the first reform attempt launched by Volodymyr Zelensky. There is no doubt that this time the High Council of Justice will employ all available mechanisms to oppose the judicial reform as well.
The High Council of Justice will select 16 members of the HQCJ from among 32 candidates who will pass the scrutiny of the Selection Commission. More loyal rather than more professional candidates for the HQCJ will have an advantage in the eyes of the corrupt High Council of Justice.
Moreover, HCJ members can start looking for loyal “dark horses” among little-known incumbent or retired judges and invite them to apply to the HQCJ. As the integrity check will be done with the help of open sources, it is impossible to investigate every detail of the judge's biography.
To prevent such a scenario, the High Council of Justice should be cleansed of dishonest members with the help of the Ethics Council until the final composition of the HQCJ is approved.
Scenario 3: Cancellation of the Ethics Council’s decisions by the Supreme Court
Draft law No. 5068 provides that the decision of the Ethics Council with international experts may be appealed to the Supreme Court for any reason. In the Supreme Court, these cases will go to the Administrative Court of Cassation, which is headed by the dishonest Mykhailo Smokovych.
Judge Smokovych is known for being a member of the panel that overturned the High Council of Justice's motion to dismiss five “Maidan judges” who illegally deprived activists of their driver's licenses.
With the opinion on the lack of integrity and real grounds for dismissal, Judge Smokovych and his colleagues from the Administrative Court of Cassation are likely to want to retain the current composition of the High Council of Justice in exchange for the security of their judicial position in the future.
At the same time, not all HCJ members found to be dishonest will appeal such decisions to the Supreme Court due to the additional public and media attention to these trials, which will damage their public image.
Scenario 4: Congresses of judges, prosecutors, attorneys and legal schools will uphold the current composition of the HCJ
The delegates of the Congresses who appointed the current High Council of Justice can also help its members to retain their position. The Congresses will have three months to convene and confirm the credentials of the HCJ members by a majority vote, despite the negative opinion of the Ethics Council.
As already mentioned, gathering a majority of votes at the Congress is not an easy task, especially with the official recognition of the lack of integrity of a HCJ member by international experts. That is why it is so important that the MPs support amendment 733, which provides for the mandatory confirmation of the powers of a HCJ member by a majority vote of the Congress.
In addition, the provision establishing the term of office of the Ethics Board to be 6 years was finally defended, and the powers of a HCJ member continue for only 4 years. Therefore, each future member of the HCJ will pass the filter by international experts, so even in case of intense sabotage by the Congresses, Ukrainians will receive a better and more honest judiciary in a few years.
Scenario 5: HQCJ competition will not take place
The draft law stipulates that the Selection Commission must select 32 candidates for the High Qualification Commission of Judges, 16 of whom will be appointed by the HCJ, while it is unknown whether the latter is cleansed of members of low integrity as of the moment of selection.
The HCJ may refuse to appoint the HQCJ members, as it previously refused to delegate its representatives to the HCJ Ethics Commission. There is also a risk that ultimately there will not be a sufficient number of competent and decent lawyers to comply with the law.
Due to this, the formation of a new HQCJ may be postponed until the end of the re-competition, or may not take place at all.
Despite the above risks, in the last few days, Ukrainians made a step closer to a truly independent court and justice than ever before in the country's history. The joint pressure of civil society, international partners and reform champions in the government have laid the foundation for changing the balance of power in the judiciary.
We expect the draft laws to be signed by the President as soon as possible and will closely monitor their implementation.