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On October 24, the Venice Commission and the Directorate General – Human Rights and Rule of Law (hereinafter, Directorate General) issued a joint opinion (amicus curiae) regarding certain provisions concerning the selection and discipline of the High Council of Justice (HCJ) members). The opinion was prepared upon request from the acting Head of the Constitutional Court S. Holovatyi and concerns the issues of functioning of the Ethics Council (including the engagement of international experts with decisive vote) and of implementation of a mechanism for one-time integrity vetting of the existing HCJ members, as introduced by the Law No. 1635-IX of July 14, 2021.
As a reminder, a constitutional petition by the Supreme Court concerning the constitutionality of certain provisions of the Law No. 1635-IX of July 14, 2021 has been pending before the Constitutional Court since October 2021 (for more details, see Weekly Analysis from October 5-11, 2021). The Constitutional Court’s request is largely related to those provisions whose constitutionality is being appealed by the Supreme Court.
As follows from the content of the Opinion, the Venice Commission and the Directorate General did not identify any significant threats or risks to the independence of judges and the state sovereignty of Ukraine in the Ethics Council’s operations or the engagement in its work of international experts with a decisive vote. It was once again noted that any judicial reform that bypasses the HCJ’s functioning or the subject of its members’ integrity is doomed to failure. Taking into account the scope of powers and the role played by the HCJ in ensuring the judiciary’s independence, the HCJ’s capacity to adequately perform its functions is dependent on the personal qualities of its members. As such, any situation where the top body in the system of justice is made up of individuals who do not meet integrity criteria de facto violates the judiciary’s independence.
The Opinion notes that the goal of introducing the Ethics Council is to build truly independent justice, including the HCJ members, by removing those members who do not meet the integrity criteria. It is precisely because of this that the Ethics Council’s one-time evaluation of existing HCJ members is a mechanism for restoring the independence of judges. As such, it not only does not contradict this principle but – by contrast – is one of its guarantees. By contrast, engaging the international experts in the Ethics Council could create guarantees for the independence of judges, as such members ensure an added element of objectivity by virtue of their not being embedded in the interests, strategies, and politics of national stakeholders.
In their Opinion, the Venice Commission and the Directorate General have refuted one of the arguments manipulated by the former HCJ members in attempting to avoid vetting by the Ethics Council. This argument boiled down to a suggestion that such a vetting could lead to the HCJ’s loss of authority, since the law envisions automatic suspension from office for any HCJ member who was recommended for removal by the Ethics Council (for more details, see Weekly Analyses from February 8-14 and February 15-21, 2022). The Opinion notes that it is primarily for the Constitutional Court to determine whether the Constitution provides for the principle of uninterrupted operations of the HCJ. However, even if such a principle is found to exist, its interpretation in a way that implies the HCJ’s uninterrupted operations must be ensured even if it is clearly established that an HCJ member does not meet the integrity criteria (among other issues) would be inconsistent with the principle of the rule of law. First and foremost, such continued membership undermines trust in justice.
At the same time, the Venice Commission and the Directorate General emphasized that, in the context of independence, provisions of the law that envision automatic removal of the HCJ members following the expiration of a term (three months) set forth by a law for review of the Ethics Council’s removal recommendation following the one-time vetting could be problematic. This problem could be partially resolved if it is provided, at least, that the Supreme Court’s decisions appealing the Ethics Council’s recommendation could result in the relevant HCJ member’s reinstatement in office. For such a protection measure to be effective, it is important that prior to the Court’s decision, no new HCJ members are appointed to replace those members who were removed by virtue of the law, so as to avoid instances of “double appointments”.
As reported, On May 7, 2022, the Ethics Council issued a decision to recommend the removal of V. Hryshchuk from office as the HCJ member. The congress of scholars did not consider this recommendation within the set timeframe; thus, V. Hryshchuk is deemed to have been removed from office by virtue of the law. At present, he is appealing the Ethics Council’s decision before the Supreme Court. At the same time, on December 16, 2022, a congress of scholars is set to take place, which is planning to fill the HCJ vacancy that was created due to V. Hryshchuk’s removal.
Thus, the Venice Commission and the Directorate General have generally supported both the engagement of international experts with a decisive vote in the Ethics Council’s work and the actual mandate of the Ethics Council concerning the vetting of integrity of current HCJ members. As noted in the Opinion, even though the engagement of international experts in the HCJ’s work may be difficult to accept for judges and the HCJ members, such engagement is important for combatting corruption that weakens the state sovereignty.
Moreover, the Opinion issues an important caution that, even if the Constitutional Court find certain provision of the Law No. 1635-IX of July 14, 2021 unconstitutional, this should not affect the legal status of the former HCJ members who resigned from office on their own and who were not subjected to vetting by the Ethics Council.