Weekly analytics for 5 – 11 October 2021
Weekly analytics 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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The Supreme Court puts the cleansing of the HCJ in jeopardy
On October 8, the Plenum of the Supreme Court submitted a constitutional petition to the Constitutional Court on the constitutionality of certain provisions of Law №1635-ІХ (on the reform of the High Council of Justice (HCJ)).
The full text of the Supreme Court’s petition has not been published yet, but according to the information notice on the Court’s website, the petition raises the questions regarding constitutionality of the following provisions of the Law:
- on the tie-breaking vote of international experts in the Ethics Council’s composition in case of equal distribution of votes;
- on the Ethics Council’s «re-assessment» of the integrity of those current members of the HCJ who are sitting judges and have already passed the qualification assessment;
- on the automatic suspension of an HCJ member in respect of whom the Ethics Council has made a recommendation for dismissal;
- on the dismissal of an HCJ member in respect of whom the authorized entity has not made a decision on dismissal or rejection of the recommendation of the Ethics Council within the specified period.
The CPLR’s assessment
The submitted petition raises questions about constitutionality of key provisions of the law, without which the cleansing of the HCJ is impossible. In the absence of these provisions, the members of the Ethics Council appointed under the Council of Judges quota will be able to block any decision, and the entities entitled to appoint/ elect the members of the HCJ will be able to refuse considering the Ethics Council’s recommendations on dismissal of the HCJ members without any consequences, thereby enabling the latter to remain in office. At the same time, the Venice Commission, as an expert body in the constitutional law area established by the Council of Europe, positively assessed the respective law, and its recommendations were taken into account.
It should be recalled that the Constitutional Court found unconstitutional a significant portion of the earlier judicial reform initiated by President Volodymyr Zelensky in 2019, similarly following the Supreme Court’s petition. At that time, the decision was lacking adequate reasoning. There was also information about connection between certain Constitutional Court judges and the leadership of the District Administrative Court of Kyiv, which supposedly influences decisions of the Constitutional Court. Previously, the Constitutional Court issued a number of decisions that jeopardized anti-corruption measures without adequate reasoning, which were criticized by both society and Ukraine’s international partners.
It is possible that this time, the Supreme Court’s petition could once again be used to terminate the reforms. The same petition can also be used by the Council of Judges to further delay delegating its candidates to the Ethics Council (more details are available in weekly analyses for September 7-13, 14-20, 21-27, and September 28 – October 4).