New presidential draft law on judicial reform: running in a circle

Event

On June 22, the President of Ukraine submitted to the Verkhovna Rada of Ukraine a draft law "On Amendments to the Law of Ukraine “On Judiciary and Status of Judges” and Some Laws of Ukraine on the Activity of the Supreme Court of Ukraine and Judicial Governance Bodies". As it is stated in the explanatory note, the purpose of the Draft Law is to improve the activity of the judicial governance bodies and to bring the provisions of the legislation into compliance with the decisions of the Constitutional Court dd. 18.02.2020 No. 2/ 2020 (see the Analysis of the CPRL experts) and dd. 11.03.2020 No. 4/ 2020 (see the Analysis of the CPRL experts), which declared the liquidation of the Supreme Court of Ukraine unconstitutional, as well as certain provisions of the first law of the President Volodymyr Zelensky related to the judicial reform.

The proposed amendments can be divided into three blocks:

1. Subordination of The High Qualifications Commission of Judges of Ukraine to the Supreme Council of Justice

The draft law stipulates that the High Qualifications Commission of Judges (hereinafter referred to as the "HQCJ") shall consist of 16 members appointed by The Supreme Council of Justice (hereinafter referred to as the "SCJ") based on the results of the competitive selection for four years. The regulation on the competition is approved by the HCJ itself. Persons who were members of the High Council of Justice, the SCJ or the HQCJ before the law was passed will not be able to apply for positions on the Commission.

A selection commission consisting of 4-6 members is established to conduct the competition: (up to) three persons from among judges or retired judges proposed by the Council of Judges of Ukraine, and (c) three international experts identified by the SCJ on the basis of proposals of international and foreign organizations, who provide Ukraine with international technical assistance or conduct their activities in the areas of justice and/or judicial power and/or prevention and combatting corruption. The final decision on the personal composition of the selection commission shall be made by the SCJ. In case international/foreign organizations do not offer enough experts to be included into the commission, the Verkhovna Rada Commissioner for Human Rights may provide his proposals.

The decision of the selection commission shall be deemed adopted if the majority of its members voted for it, provided that two persons from among those who voted for this decision are appointed according to the quota of international experts. The Commission shall select one candidate for each vacant position of the member of the HQCJ, who shall be appointed by the SCJ after special check.

According to the draft law, the newly established HQCJ will be virtually subordinated to the SCJ, as the council will approve/ adopt the acts of the judicial selection, training, and evaluation of the Commission and dismiss its members.

2. Expanding the powers of the Supreme Council of Justice

The draft law presupposes a significant expansion of the SCJ 's powers. At the same time, no changes are envisaged in the organization of work and selection of SCJ members. The returning of the provision, according to which the subject of appointment may dismiss a council member for violations only at the request of the council itself, was also proposed and supported by at least 14 council members. A SCJ member can be released by the council itself only in case of health problems or when he/she submits an application for dismissal. Moreover, it is proposed that any references to the Integrity and Ethics Commission, which was to conduct integrity reviews of existing PSC members and participate in the selection of new members, be removed from the law.

It is also proposed to remove from the law provisions of the previous law initiated by President Zelensky that were declared unconstitutional and to return the previous provisions of the law on disciplinary procedure.

3. The accession of the Supreme Court of Ukraine to the Supreme Court and transfer of judges

The Supreme Court of Ukraine, which ceased to function in 2017, will be joined to the Supreme Court, and judges of the Supreme Court of Ukraine will be enlisted to the staff of the respective сourts of сassation of the Supreme Court of Ukraine with their further qualification assessment within a year. At the same time, at the request of the HQCJ, the SCJ should approve a special procedure and methodology for the assessment of such judges. Failure to pass such assessment will result in the dismissal of the judge from his or her position.

It is also proposed to remove from the Law on Judicial System a provision establishing the maximum number of Supreme Court judges.

CPLR Assessment

Should the law be adopted:

•  The SCJ will be able to fully control the process of selection of the members of the HQCJ through approval of the regulation on the competition. During the implementation of President Vladimir Zelensky's first law on judicial reform, the SCJ has acted so by setting the rules for the competition, which distorted the meaning of the competition procedure (see the Weekly Analytics on December 2-9, December 9-16, 2019, January 13-20, January 20-27, February 4-10, February 24-2, 2020). The proposed procedure for forming the HQCJ creates wide limits for manipulating the SCJ competition. Furthermore, the SCJ will be able to form an authorized composition of the competition commission with violation of parity representation of Ukrainian judges and international experts, leveling the role of the latter;
•  expansion of the number of subjects who may nominate international experts to the selection commission may lead to the formation of the selection commission controlled by SCJ. In particular, the draft law presupposes the inclusion of any international or foreign organization operating in the sphere of justice, judiciary and anti-corruption to these subjects. At the same time, it is not even required that Ukraine should cooperate with such organizations or that they should provide international technical assistance. In other words, any organizations with the relevant sphere of activity and foreign registration will be able to submit expert candidates to the selection commission. On the other hand, the election of international experts among the submitted proposals is full discretion of the SCJ, which is beyond any control;
•  empowering the SCJ with additional functions without reforming the SCJ itself could lead to an even greater decline in the efficiency of the council.
•  Moreover, the draft law does not comply with Ukraine's commitments on judicial reform to the International Monetary Fund. In particular, contrary to the commitments made (see the Weekly Analytics, June 8-15, 2020), there are no prescribed mechanisms for verifying the integrity of the current SCJ members and candidates to the council, and there are no plans to improve the procedure for bringing judges to disciplinary responsibility by establishing an inspection unit within the SCJ.

Taking this into account, the draft law should be substantially improved in the following areas:

•  ensuring the integrity of SCJ activities: an independent commission with international experts should verify current SCJ members to ensure that their conduct meets the requirements of integrity and professional ethics, with the possibility of further termination of their powers; SCJ candidates should also undergo such verification;
•  the formation of the HQCJ (at least for the previous assignment) should be carried out outside any control of SCJ by an independent selection commission with a crucial role for international experts. Disputes over the activities of such a commission, regardless of the subject matter of its activities, should be within the exclusive jurisdiction of the Supreme Court. The SCJ 's authority in the selection of the HQCJ members should be limited to the ceremonial appointment of the members selected by the Commission;
•  the new HQCJ has the necessary level of independence from the SCJ in its activities, especially with regard to the independent approval of procedural acts on the selection and assessment of judges. The role of the SCJ can be strengthened only after the first task has been successfully completed.