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The President's initiatives on judicial reform follow the right direction, but it is not enough
On February 15, the President of Ukraine registered in the parliament three draft laws (No. 5067, No. 5068, No. 5069) on judicial reform. The President’s initiatives are aimed at fulfilling Ukraine’s obligations to the European Union and the International Monetary Fund for:
- affirmation of integrity in the formation and operation of the High Council of Justice (HCJ) – a key personnel body in the judiciary;
- increasing the efficiency of the disciplinary liability mechanism;
- reduction of the negative influence of the District Administrative Court of Kyiv (DACK), which has gained the reputation of being the most corrupt in the country, fulfilling the orders of oligarchs and politicians.
Draft law No. 5068 (on HCJ reform) was identified by the President as urgent.
On February 17, the relevant parliamentary committee recommended that the draft law be included in the agenda of the current session and invited the head of parliament to forward the draft law and alternative draft laws, if any, to the Venice Commission.
According to one publication, the head of the EU Delegation to Ukraine Matti Maasikas said that sending the draft law to the Venice Commission is not a recommendation of Ukraine’s partners and will delay the adoption of the law, and expressed regret that the Congress of Judges begins to elect HCJ members before the procedure for the selection of candidates is improved.
The CPLR considers the President’s initiatives on judicial reform to be a step in the right direction, although some provisions of the draft laws need to be revised. Without such revision, the risks of ineffectiveness of the implemented changes will be significant. Draft laws on the HCJ and the Ethics Council (No.5068 and No.5069) can be adopted as a basis and finalized before the second reading, in particular, taking into account the need for the following:
- the head of the HCJ should be deprived of the authority to make decisions on the formation of the composition of the Ethics Council (these powers in relation to international experts can be given, for example, to the Minister of Justice, and in relation to judges – to the Council of Judges or the Chairman of the Supreme Court);
- the vote of international experts should be made decisive in the event of an equal distribution of votes.
In this context, the draft law No. 3711д on the formation of a new composition of the High Qualification Commission of Judges (HQCJ) is also important, the concept of which requires coordination with the new draft laws.
It is not advisable to elect new members of the HCJ until the procedure for the pre-selection of HCJ candidates is changed (the Congress of Judges plans to elect four new HCJ members in March).
With regard to the draft law on changing the jurisdiction of cases related to regulations of central executive authorities (No. 5067), it should be finalized in parliament in order to extend the jurisdiction of the Supreme Court to certain categories of disputes concerning individual decisions where there is the greatest risk of abuse by the DACK (in particular, on the formation of the Ethics Council, the HCJ and the HQCJ). Work on solving the problem of the DACK through its liquidation/reorganization should be continued.