July 15, 2021
The Kyiv Post reported, “Parliament on July 14 gave foreign experts a decisive role in reforming the High Council of Justice, the judiciary’s main governing body.
The Verkhovna Rada passed the second reading of a judicial reform bill that would allow foreign experts to take part in firing tainted members of the discredited High Council of Justice and hiring new members.
On July 13, parliament also gave foreign experts a crucial role in creating a new High Qualification Commission of Judges, a body that hires and fires judges.
Foreign experts’ crucial role in the reform has been a requirement of the International Monetary Fund (IMF), the European Commission for Democracy through Law (Venice Commission) and Ukraine’s other foreign partners.
In February, the IMF suspended talks with Ukraine on a $700 million loan tranche due to the country’s failure to deliver on several reforms, including overhauling the distrusted judiciary.
To reform the High Council of Justice, the bill would create the Ethics Council, made up of three Ukrainian judges and three foreign experts.
Under the bill, the Ethics Council’s decisions would require the agreement of four members. If the vote is split three to three, foreign experts’ opinion will prevail.
If the Ethics Council rules that a High Council of Justice member violated ethics and integrity standards, that member will be suspended.
Bodies that appointed the High Council of Justice member will then have three months to approve or reject the member’s dismissal. If they fail to do so by that deadline, the member will be fired automatically.
There is a risk that these bodies – such as associations of judges and prosecutors – may decide not to fire tainted High Council of Justice members. Halyna Chyzhyk, a judicial expert at the Anti-Corruption Action Center, told the Kyiv Post that this is possible but it will be hard for them to get a majority of votes for keeping corrupt members.
Moreover, it will be possible to appeal the Ethics Council’s decisions in the Supreme Court on any grounds, under the bill.
This will allow the Supreme Court to block the Ethics Council’s decisions, according to DEJURE, a legal think-tank. DEJURE has called for limiting the grounds for appeal but parliament failed to do that.
Some civic activists and legal experts praised the bill as an unprecedented reform.
‘This is a historic event, without exaggeration,’ Mykhailo Zhernakov, head of DEJURE, said on Facebook. ‘There has never been such an ambitious project since the EuroMaidan Revolution.’
But Vitaly Tytytch, ex-head of judicial watchdog Public Integrity Council, argued that the passage of the legislation was a trick by President Volodymyr Zelensky’s administration to get a loan from the IMF. After the money is disbursed, the authorities will likely derail the judicial reform to avoid losing control over judges, similar to what happened in 2019, he said.
Tytytch argued that, despite foreign experts’ role, it would be easy for the authorities to promote politically dependent and dishonest candidates due to an arbitrary and flawed assessment methodology similar to that used in previous judicial reforms. ‘Dark horses’ about whom little is known will likely get into the new High Council of Justice, and no professional, strong and independent candidates will be chosen, he said. ‘There is no political will for reform,’ he said. ‘There is a political will to deceive (the IMF).’
Moreover, it is not clear whether the legislation will be implemented at all. In 2019, Zelenskyy signed similar judicial reform legislation but it was not implemented due to the High Council of Justice’s refusal to carry it out.
The President’s Office did not respond to requests for comment.”