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Weekly analytics for 17 – 23 November 2020

23.11.2020

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

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Delays in judicial reform could halt Ukraine's European integration course


Event

On November 19, President Volodymyr Zelensky held a video meeting with the ambassadors of the G7 countries and the European Union (EU). One of the topics of the meeting was the implementation of effective judicial reform, which the President identified as an urgent strategic task. In turn, the G7 ambassadors stressed that the implementation of judicial reform is a key factor in Ukraine’s transition to a new level of European integration.

It should be reminded that in late July this year, Ukraine and the EU signed a Memorandum  on macro-financial assistance for 1.2 billion euros, which was ratified by Parliament on August 25. The memorandum stipulates Ukraine’s obligation to fully reset the High Qualification Commission of Judges (HQCJ), electing its members on a competitive basis with the participation of international experts, and to establish a Commission on Integrity and Ethics with the participation of international experts, which will conduct a one-time verification of the current members of the High Council of Justice (HCJ) and will pre-select candidates to the HCJ.

In addition, another condition for receiving assistance is Ukraine’s successful cooperation with the International Monetary Fund (IMF), to which the Government of Ukraine in June this year made similar commitments regarding the reform of the procedure for selecting HCJ members. As Deputy Finance Minister Yuriy Drahanchuk said in an interview: “All the structural benchmarks (defined in the memorandum with the IMF – author’s note) have already been fulfilled.”

CPLR assessment

This is not the first time that the reform of the justice system in Ukraine has been the subject of discussions at the highest level. In 2020, Ukraine made a number of commitments to the IMF and the EU, including judicial reform. However, there is currently a critical situation with the fulfillment of these obligations. In fact, none of the commitments to the IMF in the field of justice have been fulfilled. At the same time, the promised deadlines have either expired or will expire soon.

In particular, Ukraine has committed to amend the Law “On the High Council of Justice” to provide for the establishment of a Commission on Integrity and Ethics. This commitment has been identified as a structural benchmark with a deadline of the end of October 2020. However, the President and his political force, which has a majority in Parliament, have not even registered a draft law on the issue. There is information that the respective draft law was developed by the Ministry of Justice, but it is not even registered in the Verkhovna Rada. That is, the statement of Deputy Finance Minister Yuriy Drahanchuk that Ukraine has fully complied with the structural benchmarks with the IMF is untrue.

Other obligations to the IMF have also not been fulfilled (regarding the establishment of an inspection unit within the HCJ, amendments to the procedural codes on the transfer of administrative cases with national bodies to the Supreme Court).

Commitments to the EU have also not yet been fulfilled. In addition to the establishment of the Commission on Integrity and Ethics, Ukraine has committed to establish a new HQCJ by a selection commission with international participation. Although the presidential draft law is allegedly aimed at fulfilling this obligation, as it provides for the establishment of an appropriate commission, the proposed mechanism will not allow to form a fully independent HQJC in a transparent manner, as the HCJ, which last failed to establish the HQCJ, will have a decisive influence on the selection procedure (see more details in weekly analyzes of December 2-9, December 9-16 2019, January 13-20January 20-27February 4-10 2020), and judicial control will be provided by the District Administrative Court of Kyiv, whose judges are involved in probably the most high-profile corruption exposure in the justice system (see more details in the weekly analyzes of January 13-20July 13-20July 20-27September 1-7September 15-21 2020).

Given that the effectiveness of cooperation with the IMF largely affects cooperation with the EU, further sabotage of international obligations and failure to address pressing issues of justice may result in the loss of Ukraine’s international support. The best option would be to comprehensively address these issues in the draft No. 3711, which was returned to the relevant parliamentary committee on November 5 for revision. International commitments on the justice system must be fully implemented during the finalization of this document.



Working group on the development of legislation on the organization of the judiciary and the administration of justice resumed its work in an renewed composition


Event

On November 23, the first (after December 2019) meeting of the working group on the development of legislation on the organization of the judiciary and the administration of justice, which operates within the Commission for Legal Reform, took place. Deputy Head of the Office of the President of Ukraine, Chairman of the Working Group Andriy Smyrnov said that diverse initiatives coming from different subjects of the legislative initiative do not promote progress, and the working group should become a platform for professional work on the concept or strategy of further development of the judiciary. The task of the working group should be to finalize the text of the concept, which the working group considered in December last year, taking into account new challenges.

It should be reminded that earlier, on October 29, the President renewed the composition of this Commission. Before that, in his annual address to the Verkhovna Rada on the internal and external situation in Ukraine, President Volodymyr Zelensky reiterated the need for judicial reform, which should be prepared by the “relevant legal commission set up in the President’s Office.”

CPLR assessment

Determination of the strategy of further judicial reform by the political authorities is a long-overdue measure that should overcome the chaos and inefficiency of the last steps and legislative initiatives in this area. Therefore, one can only welcome the attempt to consolidate the efforts of different stakeholders for the sake of concerted and effective action.

However, the first meeting of the relevant working group of the Legal Reform Commission took place after almost a year of inactivity after the government submitted a draft Anti-Corruption Strategy to parliament and presented the main vectors of economic development, setting priorities for the next 5 – 10 years. It is important that the working group be activated to support and implement government initiatives, not to create an alternative to block the changes proposed by the government.