Political Points for 30 September – 4 October 2019

Draft Law on Judicial Governance Reform Prepared for Second Reading: Substantial Changes, Shortcomings, Controversies

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1. CPLR expert opinion

On September 12, the Parliament adopted in the first reading the draft law “On Amending Certain Laws of Ukraine Regarding the Activity of Judicial Governance Bodies”, which provided for:

•  dissolution of the High Qualifications Commission of Judges of Ukraine (hereinafter – the HQCJ) and the formation of a new composition of the High Council of Justice (hereinafter – the HCJ) under the new rules, with the participation of international experts and members of the Council of Judges of Ukraine;
•  establishment of the Integrity and Ethics Commission by involving the HCJ members and international experts, which will monitor the integrity of the HCJ and HQCJ members;
•  expediting the handling of disciplinary cases against judges;
•  reduction of the number of Supreme Court judges (down to 100 judges);
•  reduction of the remuneration level for the Supreme Court judges and members of the HCJ and the Supreme Court of Justice;
•  lustration of the heads of the HQCJ and the State Judicial Administration of Ukraine.

Before the vote in the Verkhovna Rada of Ukraine, the CPLR experts analyzed in detail the key innovations contained in the draft law and concluded that the draft contains significant risks of increasing the political dependence of judges and the manageability of the judicial corps.

2. Respective authorities counter-point/argument

While considering the draft law, the Committee on Legal Policy took into account part of the recommendations outlined in the CPLR’s opinion and made other significant changes to the provisions of the draft law, in particular:

•  possibility of updating the current composition of the HCJ is foreseen, since the integrity of its members must be verified by the Integrity and Ethics Commission, and a decision on the dismissal of a HCJ member may be adopted based on the results of the verification;
•  powers of the Integrity and Ethics Commission have been expanded to give it the right to:
• bring the judges of the Supreme Court to disciplinary responsibility (within 6 years) and to file a submission for their dismissal;
• carry out a verification of candidates for the HCJ and the HQCJ on their compliance with the principles of integrity (possibly, the text of the draft law contains a technical mistake, since, based on its content, the Commission is entitled to verify the integrity) and the ethical standards of the judge. In the event of non-compliance with these criteria by a candidate, the HCJ may approve a conclusion that prevents a person from being appointed to the respective position;
• consider, in conjunction with the HCJ, a submission of the Integrity and Ethics Commission on the dismissal of a HCJ member. In this context, a mandatory requirement for the rejection of the submission is that it should be supported by at least two international experts-members of the Commission;
•  regulatory framework for the Integrity and Ethics Commission’s activities has been improved, in particular, its rights, which the staff of the Secretariat of the Commission are given, have been specified;
•  eliminated the potential for the HCJ members involved in the Integrity and Ethics Commission to block its activities, since the decision of the Commission is considered to have been adopted if it was voted in by a majority of the members attending the meeting (rather than the general membership as provided in the original version). International experts as the members of the Commission play a key role in decision-making, since, with equality of votes, their votes are crucial;
•  right of the HQCJ to approve its own Rules of Procedure independently has been retained;
•  periods for disciplinary proceedings have been extended (from 30 days to 60 days);
•  provision on lustration of the heads of the HQCJ and the State Judicial Administration of Ukraine has been excluded.

3. CPLR assessment of the authorities counter-point

Despite a number of positive changes, the committee’s revision of the draft law before the second reading left it with provisions that present significant risks and problems, including:

•  the number of HQCJ members should be reduced to 12. Given the current and projected workload on the commission, reducing the number of its members will inevitably lead to a decrease in its efficiency and delays in the ongoing procedures (first of all, qualification assessments);
•  requirement that a candidate for the HQCJ be affiliated with the legal profession can be interpreted as being exclusive to judges, prosecutors and lawyers, that is, representatives of those systems in need for reforms. This provision may be used to prevent the entry of the agents of change to the Commission;
•  significant control of the HCJ over the activities of the HQCJ has been retained, in particular, the HQCJ independently approves only its own Rules of Procedure, while the regulations defining the procedure for passing exams and their assessment, the procedure and methodology of qualification assessment, etc., are approved by the HCJ on the submission of the HQCJ;
•  disputes over the formation of the HQCJ have not been brought out of the jurisdiction of the “notorious” District Administrative Court of Kyiv, whose chairman and judge are suspected of attempting to block the conduct of a qualification assessment and interference with the HQCJ;
•  reduction in the staff number of the Supreme Court judges (from 200 to 100) in the absence of clear criteria and the procedure for the selection of judges to remain can be used for political purposes to get rid of disloyal judges;
•  provision stipulating that the Integrity and Ethics Commission is composed of 3 HCJ members has been retained. Consequently, there is a conflict of interest in the activities of the Commission immediately laid down in the text of the draft law, since it is supposed to check the integrity of all members of the HCJ (except the Chairman of the Supreme Court), that is, those who are part of it;
•  disciplinary procedure has not changed significantly. Although the term of disciplinary proceedings has been doubled compared to the original version (from 30 to 60 days), without improving and simplifying the mechanism of bringing to disciplinary responsibility, the periods of disciplinary proceedings can be used by judges to evade responsibility.

The text of the draft law contains a number of defects that make it impossible to fully implement the proposed mechanisms, namely:

•  the draft law stipulates the right of the Integrity and Ethics Commission to assess the candidates for the HQCJ. However, in order to check the integrity of such candidates, the draft law provides for another Selection Commission for the HQCJ members, which also includes 3 international experts. The draft law does not specify the mechanism for the involvement of the Integrity and Ethics Commission in the selection of the HQCJ members, in particular whether it has the right to approve conclusions on the candidate’s nonconformity with the criteria or the legal status of such assessment issued by the Commission;
•  the draft law stipulates that the term of disciplinary proceedings should not exceed 60 days from the date of receipt of the disciplinary complaint. However, the draft law does not amend Part 13 of Art. 49 of the Law of Ukraine “On the High Council of Justice”, which stipulates that a disciplinary chamber shall consider a disciplinary case within 90 days from the date of its opening and this term may be extended.

4. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Draft law No. 1008 should be returned for another second reading.