On July 27, an expert discussion of the draft law “On the High Council of Justice”, developed by the Council on the Judicial Reform, was held.

The Reanimation Package of Reforms welcomes progress in the legislative support of the judicial reform and the development of the draft law on the High Council of Justice (HCJ). However, RPR experts note that this draft law contains provisions that might preserve the judicial system in its present state for years to come. In particular, the requirement, whereby a candidate to the office of a HCJ member shall have 10 years of experience as a judge (ch. 2, Art. 6), makes it impossible for new judges to become members of the HCJ. This means that the HCJ will mostly consist of the representatives of the “old” judiciary.

Moreover, the draft law jeopardizes transparency of the HCJ, as well as fairness and efficiency of consideration of disciplinary cases against judges, and allows judges to avoid bringing to responsibility.

At the same time, the draft law does not provide any mechanism of response to the judges’ complaints about interference with their duties.

Therefore, the RPR calls on the President of Ukraine as a subject of legislative initiative to implement the judicial reform in accordance with the publicly declared purposes (to ensure independence and integrity of judges, to renew the judiciary) and to incorporate the following comments and suggestions into the draft law before it is brought before Parliament:

1. To remove the requirement, whereby a candidate to the office of a HCJ member shall have 10 years of experience as a judge (ch. 2, Art. 6), at least for the next ten years. It would be sufficient to have a general requirement of at least 15 years of experience in law for all HCJ members.
2. To lower the threshold (from 14 votes of the HCJ members to 21 to the simple majority) for the HCJ to introduce a candidate to the office of a judge, which will reduce the risk of blocking the candidates for the offices in the courts of higher level without a prior judicial experience.
3. To enable the Public Integrity Council (PIC) to participate in the procedures of appointment, transfer, dismissal of judges and disciplinary proceedings against judges, with the HCJ being obligated to take the conclusions of the PIC into account.
4. To limit the powers of the HJC members to refuse the complainants to institute disciplinary proceedings if there is no resolution of a higher court, especially if a judge is guilty of willful misconduct or gross negligence (p. 6, ch. 1, Art. 44).
5. To abolish the powers of the HJC head to change in a non-transparent manner the composition of the Disciplinary Chamber considering the disciplinary case (ch. 6, Art. 26).
6. To limit the grounds for a closed consideration of a disciplinary case on its merits (ch. 2 and 3, Art. 49). To ensure that individual opinions of the HCJ members are made public.
7. To allow the person who backed a charge against the judge who committed a disciplinary offence (rapporteur) to participate in the consideration of the judges’ complaint by the High Council of Justice (ch. 9 Art. 51).
8. To apply the law “On Access to Public Information” to the HCJ (there is a special provision in the law “On the High Council of Justice”).
9. To abolish the requirement, whereby the HCJ shall in each case inform a judge suspected of a crime on the consideration of the appeal for his/her detention (ch. 2, Art. 59). In addition, it should be formalized that in order to prevent the judge from shunning a responsibility, this appeal could be considered immediately without notifying the judge, while the leak of the information about this consideration should be considered as grounds for an early termination of powers of the HCJ member.
10. To provide an effective mechanism of response to the judges’ complaints about interference with their duties and to supplement the draft law with a chapter on the actions to be taken by the HCJ to ensure judicial independence and to maintain the authority and impartiality of the judiciary.