At the crossroads: which direction will the reform take?
Verkhovna Rada will decide on first hearing this week which direction the new stage of judicial reform will take. Among which concepts will people's deputies choose from and why will their choice actually have more significant consequences for the state than just another change of law?
On June 22, the President submitted a draft law aimed at forming a new composition of the HQCJ as an urgent one. In early July, people's deputies submitted alternative draft laws to the Parliament.
Now there are three concepts of the future reform under parliamentary consideration.
"Running in place" is about the draft law № 3711 of President Volodymyr Zelenskyy. The President has decided not to abandon the concept of the qualification commission controlled by the HCJ. The members of the HQCJ should also be selected by a special competition commission with the participation of international experts, yet the competition will be under the full control of the HCJ. However, this time the President proposed that if no one delegates international experts, this quota will be filled by the Parliament Commissioner for Human Rights. It is worth mentioning that last summer the National Anti-Corruption Bureau of Ukraine published materials from which it is clear that according to the investigation, judges of the Kyiv District Administrative Court referred to the Commissioner to change one of the members in the previous composition of the HQCJ for a more manageable one. Therefore, the proposed mechanism will cast doubts on the objectivity and integrity of the competition.
In addition, the President refused to introduce mechanisms to verify the integrity of the members of the HCJ. The introduced draft does not envisage such mechanisms. It is apparent that the draft was prepared at the Presidential Office in close cooperation with individual members of the HCJ who are least interested in the existence of such mechanisms.
The draft law will make it possible to fully subordinate the HQCJ to a compromised HCJ that is usually sensitive to political influences and tolerant to manifestations of dishonesty in the activities of judges.
"Moving forward" is draft law No. 3711-1 of MP Yaroslav Yurchyshyn of the faction of «Holos» party, according to which the new composition of the HQCJ should be formed by a fully independent competitive commission with the decisive role of international experts in it.
The same commission will check the integrity of the current members of the HCJ and conduct preliminary verification of the professionalism and integrity of the candidates for the council. It is worth mentioning that earlier the Constitutional Court of Ukraine declared the provisions on the ethical commission for verification of HCJ members unconstitutional on the grounds that such a commission should be established under the constitutional body and simultaneously control this body.
On the other hand, the concept of assessing the integrity of the HCJ members that was proposed in draft No. 3711-1 takes into account the position expressed by the Constitutional Court of Ukraine. It is due to the fact that the competition commission will be completely independent from the HCJ and will not control the council, as the decision to dismiss a member of the HCJ whom the independent commission recognizes as dishonest will be taken by the entity that appointed him.
In addition, it is proposed to strengthen the role of the public in controlling the integrity of judges. Therefore, the authors of the draft suggested that the Public Integrity Council (hereinafter referred to as the PIC) consisting of public representatives and participating in the judges' assessment should be entitled to file disciplinary complaints against judges, initiate the monitoring of their lifestyle (currently the HQCJ is entitled to do that, yet it has never exercised it), as well as to increase the minimum number of votes of the HQCJ members to overcome the negative opinion of the PIC regarding the judge or candidate.
"Step back" is the draft law № 3711-2 of people's deputies Serhiy Demchenko, Victoria Kinzburska, Oleh Dunda, Taras Tarasenko from the faction of the party "Servant of the people". According to it, the HQCJ should be liquidated, and all its functions should be transferred to the HCJ. There are no mechanisms to control the integrity and independence of the HCJ members. It means that the HCJ will concentrate all the powers of a judge's career, beginning with the appointment of a judge to the post and ending with his dismissal. Perhaps it would also be good if this body was truly independent and consistent in upholding integrity in the judiciary. But the current composition of the HCJ is not like that.
If the HCJ concentrates all the powers concerning the judges, appointments to the council will be even more influenced by political forces and individual judicial clans, since those who have influence over the HCJ will control the entire judicial system.
Moreover, the HQCJ and HCJ have not been able to perform all their duties before. The HCJ is also overloaded with disciplinary complaints and judges` allegations of interference in the administration of justice, administrative functions and has not been very effective. We should not expect that the effectiveness of HCJ will improve with taking over the other functions of the HQCJ.
The draft law completely eliminates the public from participation in the qualification assessment due to the elimination of the PIC. Furthermore, it is envisaged that the Public Council of International Experts, an entity that took part in the selection of judges of the Supreme Anti-Corruption Court, should be turned into a "consultant" of the HCJ, which will only be able to give advice on the number of judges in the courts and court workload, but there will be no real impact either on the HCJ itself or on the selection of judges.
What can be the consequences of a wrongly chosen path?
The real judicial reform with the reboot of the HCJ and the HQCJ, the increased possibility of public control over the judicial system, and the introduction of integrity and professionalism as the main criteria for the selection of judges were a public promise of the President and his political force. However, the essence of the draft laws introduced by them is to strengthen informal political and clan-based influence over the judiciary, which contradicts their election promises.
The wrongly chosen path of the new judicial reform can have disastrous consequences not only for the formation of a fair judiciary, but also for the economic development of Ukraine and the welfare of its citizens.
For a long time, distrust in the judicial system has been one of the biggest obstacles to foreign investment in Ukraine.
How should real changes be implemented in the judiciary?
First and foremost, an independent judiciary in Ukraine should be established by reforming the bodies responsible for the establishment of standards of integrity and independence in judicial proceedings – the HQCJ and the HCJ. Ensuring the independence and integrity of the members of these bodies is a cornerstone of judicial reform, because without it any judicial reform is doomed to failure in advance.
In May 2020, CSO’s presented a judicial reform map that describes step by step how to establish a truly independent judiciary in Ukraine. The first step towards this is the renewal of the HCJ and the HQCJ through an independent commission with the participation of judges, international experts and public representatives, which will verify the integrity of the current members of the HCJ with the possibility of termination of their powers. In addition, the commission will conduct a preliminary selection of candidates to the HCJ and the HQCJ on a competitive basis.
The Draft Law No. 3711-1 most fully takes into account Ukraine's international obligations, pre-election promises of political forces, who included judicial reform in their agenda, and public recommendations. On the other hand, other draft laws, if adopted without substantial revision, will preserve the system of political and clan influence on the judiciary, which is still unshakable.