Ukraine has committed to the EU to take steps to reform the High Council of Justice

On August 25, the Parliament adopted the Law initiated by President Volodymyr Zelensky on the Ratification of the Memorandum and Loan Agreement between Ukraine and the European Union (hereinafter — the EU) to receive macro-financial assistance in the amount of 1.2 billion euros.

In order to receive assistance, Ukraine has committed to implement a number of measures, including measures in the area of judicial reform aimed at “strengthening the independence, integrity and effective functioning of the judiciary.” The Memorandum stipulates that such measures include:

•  creation of a new High Qualification Commission of Judges of Ukraine (hereinafter — HQCJ) through a transparent selection procedure conducted by the Competition Commission with the participation of international experts;
•  establishment of an Ethics Commission with the participation of international experts, which would conduct a one-time assessment of the integrity and ethics of the current members of the High Council of Justice (hereinafter — HCJ) with the possibility of recommending their dismissal to the election (appointment) bodies. In the future, the Commission will conduct a preliminary selection of candidates for the HCJ, from which the relevant election (appointment) bodies will determine the members of the Council.

CPLR assessment

As the CPLR experts have already reported, in recent months, the issue of ensuring the integrity and independence of the judiciary has once again been raised at the international level. Earlier, in early June this year, Ukraine committed to the International Monetary Fund (hereinafter — the IMF) to set up a commission to assess the integrity of current HCJ members and conduct a preliminary examination of candidates to the HCJ (details can be found in the weekly analysis dated June 8-15, 2020). HCJ reform is one of the structural milestones in the agreement with the IMF and the relevant legislative changes should be made by the end of October this year.

Ukraine has made similar commitments to the EU to set up such a commission. In addition, paragraph 4 of the Memorandum with the EU states that the allocation of assistance is conditioned by Ukraine’s successful cooperation with the IMF, and paragraph 5 emphasizes that in assessing Ukraine’s compliance with its obligations, special attention will be paid to reforms in the rule of law.

Given the content of the commitments, it can be argued that the prospects for macroeconomic financial assistance to Ukraine by the IMF and the EU now directly depend on the reboot of the HCJ in the context of the introduction of effective mechanisms to ensure the integrity of this body.

The Verkhovna Rada is considering three draft laws on the reform of the HQJC and the HCJ (by the President Volodymyr Zelensky, by a People’s Deputy from the Holos faction, and people’s deputies from the Servant of the People faction). Before the parliamentary holidays, the relevant parliamentary committee recommended the adoption in the first reading of the presidential draft law, which does not comply with international obligations, as it does not provide any mechanisms to verify the integrity of current and future HCJ members (details can be found in weekly analysis dated June 15-22, July 5-13, July 13-20 липня 2020).

In view of the above, as well as taking into account the specific deadline for Ukraine to implement its obligations to the IMF, which expires in two months, at the next session the Parliament should adopt legislative changes aimed primarily at restarting the HCJ.