CONCLUSION of the CPLR on the draft Law of Ukraine «On Amending Certain Laws of Ukraine on the Activities of Judicial Governance Bodies »

CONCLUSION
of the Centre of Policy and Legal Reform
on the draft Law of Ukraine
«On Amending Certain Laws of Ukraine
on the Activities of Judicial Governance Bodies»

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On August 29, 2019, the President of Ukraine Volodymyr Zelensky submitted to the Verkhovna Rada the draft Law “On Amending Certain Laws of Ukraine on the Activities of Judicial Governance Bodies” No. 1008.

The draft law has the following motivation:

“According to the experts, most of the problems that currently exist in the judicial system are connected with the activities of the judicial governance bodies. For example, they point to the virtually unlimited discretion of the members of the High Qualifications Commission of Judges of Ukraine when conducting competitive procedures for selecting judges and qualifying them or delaying consideration by members of the High Council of Justice of disciplinary complaints against the actions of judges. In addition, the qualification evaluation procedure initiated by the High Qualifications Commission of Judges of Ukraine in 2016 is still not completed and only half of the judges from the entire judicial corps are considered to have passed the qualification evaluation. The selection of judges for the vacant posts, started in 2017, is still ongoing. It is not clear to the judges, the expert community and the public why these processes are hindered and citizens are still unable to get a fair judgment in time.”

The draft law proposes six measures to address these issues:

• form a new composition of the High Qualifications Commission of Judges (HQCJ) under the new rules;
• establish a Commission on Integrity and Ethics at the High Council of Justice (HCJ), as a supervisory authority for members of the HCJ, the HQJC and the judges themselves;
• expedite the consideration of disciplinary cases against judges;
• reduce the composition of the Supreme Court at least by half;
• reduce the amount of remuneration for judges of the Supreme Court, members of the HCJ and the HQCJ;
• lustrate the leaders of the HQCJ and the State Judicial Administration.

Summary of the Сonclusion

The draft law contains a number of positive ideas. However, the measures proposed by the draft law are only partly aimed at solving the declared problems, and some measures go beyond the subject matter under regulation and the mentioned problems.

Without substantial revision, the draft law bears significant risks of increasing the political dependence of judges and the governance of the judicial corps.

For example, providing the fair criticism of judicial governance bodies in the explanatory note, the draft law stipulates that one of these bodies, the High Council of Justice, plays a key role in the implementation of changes. The HCJ will be given additional authority to approve the rules of formation of the HQCJ, to form its composition, to approve the rules of its work, to form a Commission on Integrity and Ethics. However, no preliminary assessment of the current composition of the HCJ in terms of integrity and ethics is envisaged. The HCJ has played the same negative role in the (non)implementation of judicial reform as the HQCJ, which is supposed to be renewed.

The Centre of Policy and Legal Reform supports:

• reloading of the HQCJ with the involvement of international experts;
• introducing the integrity control for the members of the HCJ and the HQCJ with the involvement of international experts.

At the same time, the Centre of Policy and Legal Reform proposes to refine the draft law in the following areas:

• The current composition of the HCJ needs to be renewed before any other proposed measures are implemented. The current composition of the HCJ must be evaluated by international experts on the criteria of integrity and ethics. The authority of the HCJ members should be terminated in the event of a negative evaluation. Candidates to the HCJ must undergo the same examination. Only after restarting, the HCJ can obtain its mandate provided by this law.
• Not only lawyers, but also other individuals with impeccable reputation and authority should be allowed to become members of the HQCJ. The main task of the HQCJ should be to check the integrity and ethics of judges and candidates to judges’ positions. Knowledge testing should be automated.
• The law should provide for changes to increase the transparency of decision-making based on qualification assessment and to reduce the discretionary powers of the HQCJ.
• The Commission on Integrity and Ethics should be comprised of international experts with the involvement of reputable, highly authoritative professionals from Ukraine, but not members of the HCJ, who are supposed to be monitored by the Commission. Otherwise, control by the Commission will not be impartial and effective.
• The Commission should be mandated to evaluate current members of the HCJ, including their past behavior, and its negative decisions should automatically serve as a basis for suspending the authority of those members who do not meet the criteria of integrity and ethics.
• Timing of disciplinary proceedings should be realistic. Disciplinary proceedings need to be simplified without compromising procedural safeguards for its participants.
• There is a need to change the approach to the formation of disciplinary chambers by providing for the possibility of increasing their number and attracting reputable professionals from outside the HCJ. This will increase the efficiency of the disciplinary bodies.
• Having a small but capable Supreme Court is a strategically sound goal. However, the reduction of the Supreme Court should not be implemented before the introduction of mechanisms to reduce its burden and clear criteria for the selection of judges.
• Remove the proposed lustration amendments from the draft law, and give the preference to bringing to justice those members of the HCJ, the HQCJ and representatives of the SJA who are reported to have abused their powers or committed other offences.

A detailed analysis of the draft law provisions in Ukrainian.