A short overview
Judicial reform in Ukraine: a short overview
UPD NOV, 2022
A judiciary capable of fostering the rule of law has not been formed since Ukraine regained independence in 1991. The courts still face the problem of corruption, the dependence of judges on politicians and oligarchs. Since the fall of communism, judges did not undergo any kind of lustration, which gave the oligarchs and politicians an opportunity to capture the judiciary and use it for their benefit.
On the eve of the Revolution of Dignity, the level of trust in the courts in Ukraine stood at 7% and was one of the lowest in the world and the lowest in Europe. The judicial reform of 2016 has been the most substantial to date. Constitutional amendments were introduced, new laws were adopted, and several new institutions were created. The reform was primarily directed at making the judiciary more independent, trustworthy and publicly accountable.

The Supreme Court

However, these reform measures cannot be considered successful. The newly established Supreme Court was mostly composed of the old judges, with 44 judges (23%) clearly lacking integrity, and the vetting of the rest of the judiciary failed. This is primarily due to the reluctance of political elites to take decisive steps that would diminish their control over the judiciary. The resistance to reform of the judiciary itself also played a key role. The High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HCJ), consisting mostly of judges, kept most of their corrupt colleagues in their positions.

The High Anti-Corruption Court

A good counterexample was the formation of the High Anti-Corruption Court (HACC). The idea of creating the HACC with the new model of the selection of judges was suggested by representatives of civil society. Independent international experts (the Public Council of International Experts - PCIE) supported by the international partners of Ukraine were engaged in the process and had the power to veto the appointment of dubious candidates. That made the competition a lot more objective and fair. As a result, the independent HACC started functioning in September 2019 and already issued more than 50 verdicts in high-profile corruption cases.

After a major political change in 2019, a window of opportunities was opened to give the judicial reform a new momentum and to scale the success story of the HACC. During the elections,

NGOs persuaded the candidates to support "The Judicial Reform Agenda" initiative, which called, among other things, for the relaunch of the judicial governance bodies responsible for the failure of the judicial reform of the last 5 years.

The High Council of Justice and High Qualification Commission of Judges

In November 2019, draft law #1008 (later law # 193-IX) was adopted. The latter provided for the renewal of the judicial governance bodies with the participation of the experts delegated by the international partners.

However, law #193-IX had a few severe flaws. As a result, the representatives of the old "judicial mafia" (namely, the High Council of Justice) effectively blocked the participation of international experts in this process. In March, the Constitutional Court ruled that some provisions of law #193-IX were unconstitutional and reform completely stalled.

In May 2020, leading civil society organizations developed the Judicial Reform Roadmap -- an action plan that contains key recommendations for creating a foundation for a strong and independent judiciary in Ukraine.

In July 2021, the Rada adopted two draft laws proposed by the President to unblock the reform - #3711-d on the reform of the High Qualification Commission of Judges and #5068 on the reform of the High Council of Justice. The draft laws provided for the effective reboot of the judicial governance bodies with the casting vote of independent international experts. But the implementation of the laws is now threatened by the other judicial institutions - mainly the Constitutional Court and the notorious District Administrative Court of Kyiv.

Two months after the deadline foreseen by the law, the Ethics Council aimed at restarting the HCJ was finally formed. On the evening of November 8, the High Council of Justice refused to appoint members of the Ethics Council, so on November 9, the composition of the body is formed automatically by the law. Almost a month before, on September 17, the Selection Commission, which will reboot the HQCJ, was formed.

In February 2022, the Ethics Council began interviews with the candidates for the HCJ. At the same time, 10 HCJ members resigned voluntarily. However, the war began on February 24, so the interviews were temporarily suspended. In May, the Ethics Council resumed its work and checked the remaining four members of the HCJ for compliance with the criteria of professional ethics and integrity on May 7th. According to the results of the check, 1 member was found to be inconsistent with the criteria of integrity and professional ethics. Despite the fact that civil society had doubts about the integrity of the other three HCJ members, the Ethics Council found them to meet the aforementioned criterion. In its decisions on these three candidates, the Ethics Council did not provide sufficient justification as to why the available facts were insufficient to declare all HCJ members of low integrity.

On August 15, 2022, the Verkhovna Rada appointed two new members of the HCJ under its quota - Roman Maselko, a "Maidan attorney", DEJURE Foundation and Automaidan board member, and Mykola Moroz, PhD of Laws of Yaroslav Mudryi National Law University. The public did not doubt the integrity of both candidates.

On August 19, 2022, the Congress of Legal Scholars appointed Dmytro Lukyanov as a new member of the HCJ. There are reasonable doubts in regard to Mr Lukyanov's integrity. Earlier, he supported the appointment of judges of low integrity. For example, during a competition for the Constitutional Court Mr Lukyanov voted for Oleksandr Sybiha, who owns a considerable amount of elite property, which cannot be explained by official income. In particular, two apartments and a house of more than 700 square meters in Kyiv, 7 plots of land, Tesla, Porsche, Toyota Camry, Breitling, Rolex and Breguet watches.

On November 1. 2022, the Ethics Council recommended 16 candidates for appointment to the High Council of Justice. The most odious candidates were not recommended by the Ethics Council or withdrew their candidacies. However, DEJURE Foundation, together with Anti-Corruption Action Center and Automaidan, had questions about the career paths and fortunes of 12 of the 16 recommended candidates. The HCJ now consists of 7 members: Roman Maselko, Mykola Moroz, Dmytro Lukyanov, Oksana Blazhivska, Inna Plakhtiy, Vitaliy Salikhova, and the President of the Supreme Court Vsevolod Knyazev, ex officio. If the Congress of Judges appoints eight of the recommended candidates, the HCJ will become operational as it will consist of 15 members.

The Constitutional Court

In October 2020, a crisis was caused by the Constitutional Court of Ukraine's (CC) decision to close the public register of declarations and to abolish criminal liability for failure to submit or falsify electronic declarations. Mass protests ensued. The President suspended the head of the CC, Oleksandr Tupytskyi, from the position of the CC judge. Shortly afterwards, the President unconstitutionally dismissed Judges Tupytsky and Kasminin from office.

The Venice Commission, upon the request of President Zelensky, and NGOs called for the establishment of a real competitive selection procedure for the CC judges to limit their political dependence. In June 2021, the committee of the Parliament on legal policy supported the necessary amendments to draft law #4533, but reversed the decision in September.

In August 2021, the President issued a decree announcing the competition for two CC seats on his quota and appointed 7 members of the selection commission. The NGOs protested against this decision as legally, there are no vacant seats in the Constitutional Court within the President's quota, despite the President's attempt to remove two discredited judges unconstitutionally. Such appointments can jeopardize the legitimacy of the Constitutional Court and its decisions. Three international experts appointed by the President to the selection commission refused to continue their participation, acknowledging the absence of the vacant seats.

According to the results of the competition, on November 26, 2021, Volodymyr Zelensky appointed two new judges of the Constitutional Court - Oleksandr Petryshyn and Oksana Hryshchuk. However, on November 30, the Constitutional Court issued a special ruling postponing the swearing-in of candidates due to the lack of vacancies in the Constitutional Court under the President's quota, thus preserving the legitimacy of the institution.

On May 15, 2022, according to the law, Oleksandr Tupytsky's term of office expired, and on May 19, the Constitutional Court swore in Oksana Hryshchuk, filling an existing vacancy. On May 27, 2022, Oleksandr Tupytskyi, who had been accused of committing a number of criminal offences, was put on the international wanted list.

On September 19, 2022, the term of office of Oleksandr Kasminin expired, and on September 21, Oleksandr Petryshyn was sworn in and became the judge of the Constitutional Court.

On August 12, 2022, draft law #7662 "On Amendments to Some Legislative Acts of Ukraine on Improving the Procedure for Selecting Candidates for the Position of a Judge of the Constitutional Court of Ukraine on a Competitive Basis" was registered in the Parliament. It proposes to establish the Advisory Group of Experts that would check all candidates for the Constitutional Court. However, some of its provisions do not correspond to the recommendations of the Venice Commission and therefore threaten the fulfilment of EU requirements regarding Ukraine's candidate status.

The draft law specifies that the group includes 6 members: one from the Verkhovna Rada, one from the President and one from the Congress of Judges, one member from the Venice Commission and two members delegated by international organisations that provide assistance to Ukraine in reforms of the rule of law.

Such a composition of the Advisory Group of Experts contradicts the recommendations of the Venice Commission because it does not foresee the participation of representatives of civil society. The inclusion of representatives of civil society is a logical and necessary step to ensure the transparency of the selection process of judges of the Constitutional Court and, as a result, the formation of the Constitutional Court, trusted by society.

On September 7, 2022, Ukrainian NGOs issued a Statement calling on the MPs to introduce amendments to draft law #7662 to ensure the inclusion of two representatives of civil society in the Advisory Group of Experts during the preparation of draft law #7662 for the second reading.

The District Administrative Court of Kyiv

In the summer of 2020, the National Anti-Corruption Bureau (NABU) published the recordings that were allegedly made in the office of Pavlo Vovk - the President of the District Administrative Court of Kyiv (DACK). According to the tapes, the DACK judges were allegedly involved in massive corruption and attempted to seize power. The HCJ then unanimously refused to suspend or discipline Pavlo Vovk and his associates.

The petition to the President to liquidate DACK collected the necessary 25,000 votes. In April 2021, after another corruption scandal, the President registered the urgent draft law #5369 to liquidate the court. Until now, the Parliamentary Committee on legal policy fails to even include the draft law in the agenda. The other presidential draft law #5067 provides for the transfer of a number of cases to the Supreme Court, partly implementing the IMF Memorandum. However, the draft law only concerns a small number of cases and does not solve the issue of corruption in the DACK. To date, the DACK remains the most notorious and simultaneously one of the most powerful courts in the country.

Details of the necessary steps towards reforming Ukraine's judicial system are set out in the Judicial Reform Map prepared by Ukrainian experts and NGOs.

DJR


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