Two alternative draft laws to the presidential draft law on "Judicial Reform" submitted to Parliament
On June 22, the President introduced to the Verkhovna Rada of Ukraine a draft law “On Amendments to the Law of Ukraine “On the Judiciary and the Status of Judges” and Certain Laws of Ukraine on the Activities of the Supreme Court and Judicial Governance Bodies” (No. 3711). See weekly analysis of events of June 15-22, 2020).
On July 7, two alternative draft laws were submitted to the Parliament – No. 3711-1 (introduced by the MP Y. Yurchyshyn, Holos party) and No. 3711-2 (introduced by MPs from the Servant of the People party).
Draft law № 3711-1, in contrast to the presidential draft law, provides for:
- maintaining the autonomy of the High Qualifications Commission of Judges (hereinafter – HQCJ) from the High Council of Justice (hereinafter – HCJ);
- introduction of a mechanism to ensure the integrity of HCJ members;
- improvement of the institution of disciplinary responsibility of a judge by strengthening the role of inspectors in disciplinary proceedings;
- strengthening the role of the Public Council of Integrity (hereinafter – PCI) by giving the right to file disciplinary complaints, organizational support of the HQCJ secretariat, increasing the minimum number of votes of the HQCJ members to overcome the PCI's conclusion.
Thus, it is proposed to return the status of the HQCJ as an independent entity in the judicial system. The Commission will independently approve its own acts, which determine the procedure for selection of judges and their assessment without any approval of the HCJ.
The HQCJ will consist of 16 members appointed by the HCJ based on the results of the competitive selection, which will be conducted by a specially created independent Competition Commission. Such a Commission will be formed on an equal basis by the Council of Judges and donors who have provided Ukraine with international technical assistance (3 members each). The HCJ will have a nominal role in the formation of this Commission, which will be limited only to the approval by the HCJ Chairman of its personal composition.
In its activities, the Competition Commission will be completely independent of the HCJ and at its own discretion will determine the procedure and conditions of the competitive selection to the HQCJ. International experts will play a crucial role in the Commission's work as their three votes are needed to make a decision. Based on the results of the competition, the Commission will determine the winners, who will be appointed by the HCJ within 5 days. The Council has no authority to reject the recommendations of the Competition Commission.
Disputes concerning the decisions of the Competition Commission will be referred to the Supreme Court.
The draft law proposes to enshrine at the legislative level the requirement for the integrity of the HCJ members. The procedure for selecting HCJ members will be supplemented by a new stage, at which an independent Competition Commission (the same one created to select members of the HQCJ) will pre-select candidates to determine those who have the best experience, knowledge and qualities to perform the duties of HCJ members. Based on the results of the selection, the Competition Commission will provide the appointing entities with a list of candidates. The appointing entity may elect/appoint as a member of the HCJ only a person from the list of candidates approved by the Competition Commission;
In addition, the Competition Commission will check the integrity of the current members of the HCJ, based on the results of which it may make a submission for dismissal of such a member of the Council to the appointing entity. From the moment of making a decision on non-compliance of a HCJ member with the requirements of the Constitution of Ukraine and the relevant law, he/she shall be removed from office. If the appointing entity does not decide within 60 days to dismiss the HCJ member in respect of whom the submission has been received, he/she shall be removed from office until he/she is dismissed or until his/her term of office is terminated.
The draft law provides for the functioning of the HCJ inspectors' service as an autonomous supplementary body within the secretariat. Inspectors will check the compliance of the disciplinary complaint with the requirements of the law, conduct a preliminary inspection, and when a disciplinary case is opened, they will prepare the case for consideration.
Some changes in the procedure of disciplinary proceedings are also envisaged. In particular, it is proposed to set a clear deadline for the HCJ to decide on the initiation of proceedings (30 days from the receipt of the inspector's opinion) and to expand the range of entities who can appeal the Disciplinary Chamber's decision by including the HCJ inspector and the complainant.
It is proposed to expand the range of powers of the HCJ, supplementing it with the right to file a disciplinary complaint against a judge, the opportunity to initiate monitoring of his/her lifestyle, ensuring full access to the Unified Register of Court Decisions and the judge's file.
The draft law also stipulates that the HCJ's conclusion can be overcome by only 15 votes of the HQCJ members (currently only 11 votes are required for this).
It is proposed to oblige the HQCJ secretariat to provide organizational and logistical support to the HCJ.
In addition, it is proposed to return the legislative provision on the staff number of judges of the Supreme Court of 200 judges.
Draft law No. 3711-2 provides for the following:
- creation of a qualification chamber as a part of HCJ with simultaneous liquidation of the HQCJ and the PCI;
- establishment of the Public Council of International Experts (hereinafter – PCIE) as an advisory body to the HCJ to assist in the exercise of some of its powers;
- renaming the Supreme Court of Ukraine with the creation of senates (by changing the name of the courts of cassation) and changing the leadership of the court.
Thus, the authors of the draft law propose to abandon the existence of the HQCJ in the judicial system. It is proposed to transfer its functions to the Qualification Chamber as part of the HCJ. This chamber will include members of the HCJ, and the HCJ itself will review the chamber's decisions on qualification assessment.
In order to ensure the activities of the members of the Qualification Chamber, a Service of Inspectors will be established within the HCJ Secretariat, who will be able to act only on behalf of a member of the Chamber.
In addition, the HCJ itself will determine the number of judges in the courts upon submission of the State Judicial Administration, and in the Supreme Court – upon submission of the Plenum of the Supreme Court (minimum number of judges – 200).
The draft law provides for the establishment of PCIE as an advisory body to the HCJ, formed by the Council itself to assist it in determining the number of judges in the courts, the burden on judges and other issues specified in a separate provision of the HCJ. The PCIE will consist of 7 members appointed by the HCJ on the basis of proposals from international human rights organizations, which cooperate with Ukraine.
The draft law excludes any references to the HCJ from the Law on the Judiciary.
The draft law stipulates that the Supreme Court of Ukraine will change its name to the Supreme Court and will continue to administer justice as the highest court in the judiciary. At the same time, a new Chairman of the Supreme Court and Chairman of the Senates must be elected.
It is proposed to change the organizational structure of the Supreme Court, in particular, to rename the courts of cassation into the appropriate senates (for example, instead of the Administrative Court of Cassation there will be the Senate of Administrative Cases).
Judges of the Supreme Court of Ukraine will be transferred to the Supreme Court with further assessment. Assessment will be conducted by the Temporary Commission established by the HCJ including 5 retired judges of the Supreme Court of Ukraine.
In addition, the draft law proposes to remove such a requirement for incompatibility of a judge as a ban on holding positions in respect of which the lustration is carried out in accordance with the Law "On Iustration".
Draft law No. 3711-1 largely takes into account the comments and suggestions of the CPLR experts, which were submitted to the presidential draft law No. 3711, in particular:
- ensuring the integrity in the HCJ activities by pre-screening the HCJ candidates as well as its current members by an independent competition commission with a decisive role of international experts;
- formation of a new composition of the HQCJ on a competitive basis outside any control of the HCJ by an independent competition commission with a crucial role of international experts.
- preservation of the independence of future HQCJ from the “unreformed” HCJ.
In addition, given the influence of the District Administrative Court of Kyiv on the activities of the previous composition of the HQJC (see weekly analyzes of May 13-20, 2019, June 10-17, 2019), the CPLR experts support the decision to transfer cases with the participation of the competition commissions under the jurisdiction of the Supreme Court;
Draft law is in line with Ukraine's commitments to the International Monetary Fund (see weekly analysis of June 8-15, 2020).
Concentration of all personnel powers in relation to judges with the HCJ envisaged by the Draft Law No. 3711-2 will make it impossible to perform these powers qualitatively, as even now the HCJ is not an effective body due to the heavy workload (including disciplinary issues). This idea is also unjustified given the lack of proposals to implement integrity standards in its activities.
Establishment of the PCIE as an advisory body to the HCJ will have no practical significance, as the HCJ is still the beneficiary of international technical assistance projects that provide expert and other support to its activities.
Draft law creates risks for the administration of justice by the current judges of the Supreme Court, as there are no provisions to transfer them to the Supreme Court of Ukraine, which will be renamed into the Supreme Court. The current judges of the Supreme Court did not pass the competitive selection to the Supreme Court of Ukraine, were not included in the staff of this court and are currently in a legal relationship with another legal entity – the Supreme Court, which, according to the authors of the draft law, will cease to exist.
Draft law No. 3711-2, initiated by members of the Servant of the People faction, contradicts the election program of the same political party ("we will restart the High Council of Justice … strengthen public control over the judiciary"), Ukraine's committment to the International Monetary Fund. The draft law will contribute to the politicization of the justice system.
Based on the results of the analysis, it can be concluded that Draft Law No. 3711-1 best meets the current challenges of reforming the justice system, relevant international obligations of Ukraine. The other two draft laws (presidential and the ones prepared by representatives his faction), alternative in content, will have a negative effect on the functioning of the justice system and its independence.