Independent courts are one of the conditions for the state’s survival; therefore, judicial reform is the focus of the European Commission. But it is also crucial for every Ukrainian.
In June 2022, the European Commission recommended granting Ukraine the status of a candidate state for membership in the European Union, subject to implementing seven recommendations. The first two concern the reform of the selection of judges of the Constitutional Court and the “heart” of the judicial system – the High Council of Justice.
But these requirements are important regardless of European integration: not only potential membership of Ukraine in the EU depends on its fulfillment, but also the right of citizens to protection and economic well-being of Ukraine.
In wartime, independent and fair courts are one of the conditions for the state’s survival. It can also become a safeguard against possible authoritarian intentions of the authorities.
What you need to know about changes in key judicial bodies, whether the government’s decisions meet EU requirements and common sense, and why justice reform is essential for everyone, including Ukrainians, is discussed by LIGA in partnership with the Reanimation Package of Reforms Coalition.
On December 13, the Verkhovna Rada adopted a law on a new procedure for selecting judges of the Constitutional Court. It creates an advisory group of experts (AGE) of six members who will evaluate the moral qualities and level of competence in the field of Law of candidates for the post of judges of the CCU. The government delegates three members, three by international institutions.
“The main problem with the CCU has always been in appointing unscrupulous or politically dependent judges,” says Oleksandr Marusiak, a Constitutional Law expert at the Center for Political and Legal Reforms.
He reminds us that in 2016, due to Petro Poroshenko’s judicial reform, the Constitution declared that the selection of candidates for the position of judge of the CCU is conducted on a competitive basis. But what are “competition rules” – everyone began to interpret them differently.
REFERENCE. The CCU comprises 18 judges – six appointed by the president, the Verkhovna Rada, and the congress of judges.
All appointment subjects were united by one thing – the competitive selection of candidates for the post of judge of the CCU was imitated, Marusiak states.
In 2020, after the scandalous decisions of the ССU regarding anti-corruption legislation, the Venice Commission recommended that Ukraine introduce an independent competition using a specially created body.
However, Verkhovna Rada ignored the conclusions of the Venice Commission for a long time and took up the problem only after the European Commission prescribed the adoption and implementation of legislation on the selection procedure of CCU judges following the recommendations of the Venice Commission as the first of seven requirements for EU membership.
In August 2022, a corresponding draft law was registered in the Parliament and sent to the Venice Commission. But the previous conclusion needed to be more precise in wording and entirely complimentary, which, according to Marusiak, allowed the Parliament to interpret it.
For example, there was a recommendation to make a gradation of candidates by an Advisory Group of Experts according to the categories “best meets,” “meets,” and “does not meet” the established criteria.
The Verkhovna Rada prescribed this but established that if 226 People’s Deputies did not vote for the candidates who are “most responsible” and “responsible,” – it is possible to vote and appoint candidates who, in the opinion of the AGE, “do not meet” the criteria.
“It annuls the meaning of the advisory group’s existence and turns it into a formality,” – Marusiak convinces. – Whatever decision the advisory group makes, the last word will be with the president, the Parliament, and the congress of judges. It’s an imitation of competitive selection.”
The expert adds that the authorities are trying to formally fulfill the European Commission’s request but continue to create complex structures for the competition, so in the end, there was no competition.
Venice Commission also noticed this, which is why the updated conclusion for December 16-17 emphasized the two main problems of the Law adopted by the Council.
First, the appointing entities (the president, the Parliament, and the congress of judges) cannot appoint candidates who, according to the advisory group’s decision, “do not meet” the specified criteria.
Secondly, the advisory group should not consist of six members, as of now, but of seven. Moreover, four of them are international experts.
The authorities had a chance to fix everything quickly. It was enough for Zelenskyy to veto the Law and return it to the Parliament with amendments that would remove the remarks of the Venice Commission. Under such a scenario, if desired, the Law could be changed in one day, Marusiak emphasizes.
But on December 20, the president signed the Law. Now the only option is to register a new draft law on changes to the adopted Law on the selection of judges of the CCU.
If there is political will and agreement between the factions, it can be done in a month, Yuliia Kyrychenko, co-chairwoman of the Board of the Centre of Policy and Legal Reforms, is convinced. In the new draft law, it is necessary to provide that those candidates who do not meet the requirements will automatically stop participating in the competition or that the relevant committee or Council of judges will not transfer them to the hall and the competition commission if there is a conclusion that they do not meet the requirements.
If the authorities ignore the recommendations of the “Venetian,” – the European Commission is unlikely to count it as fulfilling the first of the seven requirements, the expert predicts. After all, the European Commission has prescribed that the Law on the selection of judges of the CCU must comply with the Venice Commission’s recommendations.
At the same time, according to Yuliia Kyrychenko, it is possible that even with this version of the Law, the EC will put a formal “tick” on it but will closely monitor how the appointment to the CCU will actually proceed. If the European Commission sees that professional people fill these five vacancies, this can ultimately be counted as the implementation of the recommendation. But Yuliia Kyrychenko is convinced that if someone from a “narrow circle” is appointed or recognized as “not meeting the requirements,” it will not be considered fulfilling.
“The first recommendation of the Venice Commission can be fulfilled if, even within the selection, that is fixed in the law now, we get an apolitical, independent lawyer for the position of the judge of the Constitutional Court,” she explains.
Although the European Commission is still insisting on making changes to the adopted Law on the CCU to take into account the recommendations of the Venice Commission fully. Ana Pizonero, a spokeswoman for the European Commission, said this on Friday, December 23. She specified that the European Commission took into account the fact of the adoption of the Law but expects that the Ukrainian authorities will fully take into account the recommendations of the Venice Commission, published after the adoption of the Law on December 19, including increasing the number of AGE members to seven.
The situation with the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HCJC) is no less confusing. The second requirement of the European Commission, after the CCU, is the completion of the integrity check of candidates members of the HCJ and the selection of candidates for the HCJC.
HCJ and HCJC are the heart of the entire justice system. These bodies determine how professional, honest, and independent judges are, explains LIGA Roman Smalyuk, an expert of the Center for Political and Legal Reforms on Judiciary.
The High Council of Justice is one of the most influential bodies of the judicial system, which is responsible for appointing and transferring judges. The HCJ also resolves the issue of bringing judges to disciplinary liability, including dismissal, and permits to detain a judge. If a judge is caught taking a bribe, he cannot be detained without the permission of the HCJ.
REFERENCE. The HCJ includes 21 members. 10 appoints a congress of judges, two each – the President, Parliament, lawyers, prosecutors, and scientists. The Chairman of the Supreme Court is an ex-officio member of the HCJ.
Until the summer of 2021, there was no mechanism for attracting honest members to the HCJ. And since there were no independent checks, each subject tried to appoint a loyal member to the HCJ, which, according to Smalyuk, led to numerous corruption scandals around the body.
In particular, on the scandalous “Vovkєі tapes,” there are episodes with the influence on individual members of the HCJ. Because of this, the National Anti-Corruption Bureau asked the HCJ to suspend the head of the Kyiv District Administrative Court, Pavlo Vovk, but the HCJ stood up for the judge.
The problem with the integrity of the HCJ members has acquired a global scale. In 2020, Ukraine committed to the IMF and the EU to reform the HCJ. And the Venice Commission directly indicated that the judicial reform, which bypasses the HCJ and the issue of the integrity of judges, is doomed to failure.
In August 2021, the Parliament heeded the calls and adopted a new procedure for electing members of the HCJ.
An Ethics Council is being created, which will conduct a preliminary check of the integrity of candidates for members of the HCJ. The transitional period will consist of six members: three from the judicial environment and three from international organizations. Moreover, international experts have the right to a decisive vote.
The active members of the HCJ actively opposed the adoption of such a law because the parliamentarians predicted that the Ethics Council has the right to check the integrity of current members as well.
Realizing that the checks could not be bypassed, on February 22, two days before the full-scale invasion of the Russian Federation, ten members of the HCJ resigned. Ukraine entered the Great War with an underpowered HCJ because five of the twenty-one members remained in its composition (with fifteen as the minimum required).
Currently, there are seven members of the HCJ, and the future of the body depends on the congress of judges scheduled for mid-January 2023.
The Ethics Council, despite the difficulties of the war, finished the selection of candidates and recommended a congress of 16 judges – two for each vacant position.
The fate of the HCJ is now in the hands of the Congress of Judges. But public activists signal the desire of judicial clans to sabotage the appointment. One of the scenarios is to appoint only two or three members of the HCJ and to announce a new competition for the new ones, which may delay the body’s launch for another year.
The judicial clans benefit from an incompetent HCJ that cannot bring them to justice.
For example, the HCJ must decide the future of Pavlo Vovk. After liquidating the Kyiv District Administrative Court, he retained the status of a judge, and unscrupulous members of the HCJ can generally decide to transfer him to another court.
Without the HCJ, there will be no High Qualification Commission of Judges, which can be compared to the personnel service of justice. It is responsible for selecting judges and recommending them for approval by the High Council of Justice. Also, the HQCJ conducts the qualification evaluation of judges, which was introduced in 2016. All current judges must pass it. Based on the evaluation results, a judge may be dismissed if, for example, he has not passed a test on his knowledge of the Law.
But in three years, a little more than half of the judicial corps (about 2,500 judges) passed the evaluation, of which less than 1% were dismissed. Therefore, in 2019, the presidential draft law terminated the powers of all members of the HQCJ.
The first attempt by the authorities of Volodymyr Zelenskyy to introduce competitive selection to the HQCJ ended in the Constitutional Court. In 2020, most provisions of the judicial reform were declared unconstitutional.
And only in the summer of 2021, the adoption of new legislation happened.
Now, the High Council of Justice appoints only candidate members of the HQCJ, recommended by a specially created independent competition commission. It is very similar to the composition of the Ethics Council with the decisive vote of international experts.
The Competition commission was created in 2021, but because of the war, the selection of candidates slowed down a little. Today, 301 candidates applied for 16 vacant positions. The commission is preparing for publication a list of 64 candidates admitted to the interview stage. The application for the appointment of a new member of the VKKS may be ready in the second quarter of 2023, Smalyuk predicts cautiously.
“But if we delay the HCJ, we will not create the HQCJ,” the expert states.
With the independent and professional selection of judges, getting a separate and professional judicial branch of government is possible. And not so much representatives of the authorities should be interested in this, but the citizens of Ukraine themselves.
For example, CCU can declare any law unconstitutional. If there are unscrupulous judges in the CCU, this puts at risk any provision of the legislation by which the state functions, says Marusiak.
“Courts are about protecting the rights of citizens against arbitrary actions by state and law enforcement agencies,” explains Smalyuk.
According to him, foreign investors will not invest in a country where their property can be taken away by a falsified or bought court decision. If investors have confidence in the courts, there will be investments, and accordingly, the economic well-being of the country and each citizen will grow.
Independent and fair courts are one of the conditions for the state’s survival, Smalyuk is convinced. In addition to economic growth, it can become a safeguard against authoritarianism and arbitrariness.
“CCU is important for the balance of power,” adds Marusiak. “If the authorities control the CCU, this is a path to usurpation.”
And the lack of independent competition grounds creates a temptation for any government.
Read more about Ukraine’s implementation of the European Commission’s recommendations in the study of the RPR Coalition.
The publication was prepared by LIGA in partnership with the Reanimation Package of Reforms Coalition with the financial support of the United States Agency for International Development (USAID) within the framework of the project “Responsible and Accountable Politics in Ukraine” (U-RAP), which the National Democratic Institute implements. The opinions expressed in the publication are those of the authors and do not necessarily reflect the views of USAID.