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Weekly analytics for 6 – 12 October 2020

12.10.2020

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. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua




Venice Commission has acknowledged that issues related to the integrity of the HCJ members must be resolved without delay


Event

On October 9, the Venice Commission and the Directorate General for Human Rights and the Rule of Law of the Council of Europe approved a joint opinion on the draft law No. 3711 “On Amendments to the Law of Ukraine “On the Judiciary and Status of Judges” regarding the activities of the Supreme Court and judicial governance bodies”.

The most important are the following conclusions of the Venice Commission:

1.     Draft law No. 3711 should solve the urgent problem of filling vacant positions of judges; as regards other issues, in particular the issue of the integrity of the members of the High Council of Justice (hereinafter – HCJ), they should be addressed by another systemic draft law, which must be adopted without delay.

2.     Until the parliament adopts a comprehensive systemic draft law on the interaction of judicial authorities, the independence of the High Qualification Commission of Judges (hereinafter – HQCJ) from the HCJ must be maintained.

3.     Participation of international experts in the selection of a new composition of the HQCJ is the right step towards ensuring public confidence in the process, but such participation is only possible during the transition period.

4.     Decision not to reduce the number of judges of the Supreme Court at this stage is welcomed. The Venice Commission shares the concerns regarding some judges of the Supreme Court, but it believes that the relevant issues should be addressed within the framework of an effective disciplinary procedure.

5.     Draft law No. 3711 implements the decision of the Constitutional Court of Ukraine by providing for the integration of judges of the Supreme Court of Ukraine into the Supreme Court. However, this does not exempt these judges from passing the qualification assessment.

In addition to reviewing the draft law No. 3711, the Venice Commission set out some key guidelines for further HCJ reform, which should take place without delay. Thus, in the Commission’s view, it is acceptable to set up a joint body involving international experts to assess the integrity of current and future members of the HCJ. Civil society, such as representatives of the Public Integrity Council, may also be involved. This body may assess the integrity of current HCJ members and provide recommendations on their dismissal. As for future members, such a body cannot rank candidates, but it can determine whether they meet the requirements or not.

CPLR assessment

Earlier, the CPLR experts analyzed the draft law No. 3711 and concluded that although it was aimed at resuming the work of the HQCJ, it turned to be “run around in circles” because it subordinates the selection process of HQCJ members and its activities to the High Council of Justice, whose members have serious integrity problems.

Importantly, the Venice Commission conducted a comprehensive assessment of key issues in the justice system, not limited to an analysis of the draft law No. 3711. The Venice Commission’s position on ensuring integrity in the HCJ’s activities should be as much a priority for legislation as resuming the activities of the HQCJ in its new composition.

According to Maxym Sereda, a CPLR expert, the conclusion of the Venice Commission is likely to be an argument for a significant revision of the presidential draft law by parliament and will allow to form a new composition of the HQCJ, whose activities are important to fill vacant judicial positions. Importantly, the Commission supported the involvement of international experts in the process of electing a new HQCJ and stressed the need to maintain its independence from the HCJ before the latter is reformed. However, at the same time, a law should be adopted to clean up the HCJ, which Ukraine has committed to reform in the frames of its cooperation with the EU and the IMF, the expert said.



Forum for Coordination of International Technical Assistance has identified anti-corruption reform as one of the 5 key priorities, which will be further implemented with the support of international partners


Event

On October 8, a Forum for Coordination of International Technical Assistance “Understanding for Peace” was held under the chairmanship of the Prime Minister of Ukraine Denys Shmyhal. Participants of the Forum discussed key reforms that will be further implemented by Ukraine, including the fight against corruption. Joint statement of the Forum participants noted that the implementation of the reform in the field of anti-corruption involves the creation of a strategic framework and ensuring the independence and efficiency of key anti-corruption bodies, in particular by ensuring transparent selection of their leaders.

CPLR assessment

One cannot but agree that effective reforms require a strong strategic framework and a unified vision. However, separation of specific “key” bodies and associating the problem of their institutional capacity with the leadership of these bodies indicates the continuation of the tradition of “patchwork” repair of the system.

It is clear that the role of the head of any institution is important, and the procedure for his/her selection should be open and transparent. However, by identifying this as a priority, the Forum participants actually confirmed the ineffectiveness of existing competitive procedures and their inability to ensure a proper selection process. Thus, the competitive procedure for the positions of civil servants of “A” category and the positions of heads of specialized anti-corruption bodies requires significant refinement. The root of the problem is not that the procedure does not work, but in what purpose it pursues. The law stipulates that selection for positions in key anti-corruption bodies involves assessing the degree of integrity and professionalism of candidates. Existing competitive tests allow determining the professional level of the candidate for the position, but do not give a complete picture of his/her integrity. There are no methods for assessing the integrity of public servants, except for the mechanism for verifying and assessing the accuracy of information in electronic declarations.

Moreover, focusing only on the leadership of the relevant state bodies is not in line with the goal of anti-corruption reform, as the requirements for professionalism and integrity apply to all public servants. It is impossible to ensure the effectiveness of the activities of a state authority or local self-government body without the appropriate level of professionalism of the employees of these bodies. At the same time, the integrity of an employee determines the level of independence of his/her professional activity, his/her independence in decision-making and responsibility for such decisions and, thus, the independence and efficiency of the state body.