To fulfill Ukraine’s obligations to the International Monetary Fund and the European Union, on February 15, President of Ukraine Volodymyr Zelensky introduced three draft laws in the judicial reform area. This is a long-awaited step, as these commitments are aimed at:

• strengthening the integrity in the formation and operation of the High Council of Justice (hereinafter – HCJ), a key personnel authority in the judiciary;
• increasing the efficiency of the disciplinary liability mechanism;
• reducing negative influence of Kyiv’s administrative court, which has infamously become notorious as the most corrupt court in the country that fulfills orders of oligarchs and politicians.

Reloading the HCJ was also among the campaign promises of the President and his party “People’s Servant”.

What do the drafts provide for? Do they comply with international obligations? Let’s analyze the pros and cons.

Draft law № 5068 “On Amendments to Certain Laws of Ukraine Concerning the Procedure for Election (Appointment) to the Positions of the High Council of Justice Members and the Activities of Disciplinary Inspectors of the High Council of Justice”.

What it envisions?

It improves the HCJ’s members’ competitive selection procedure, in particular by creating an Ethics Board, which will vet the compliance of the candidates for the HCJ with integrity and professional ethics criteria. The Board will nominate at least two candidates for each vacant position on the HCJ to the appointing (electing) authority.

There was no such vetting previously or it was purely nominal, since individuals with skeletons in their closets were most frequently appointed. It is difficult to change this system, as the authorities responsible for the HCJ formation are defined by the Constitution; these are the congresses of judges, attorneys, prosecutors, representatives of legal educational institutions, the President, and the Parliament. Therefore, introduction of candidate pre-screening by an independent commission gives hope for a fair selection rather than the promotion of “own persons”.

The Ethics Board will consist of six members: three judges or retired judges from the Council of Judges of Ukraine; and three persons from international organizations with which Ukraine cooperates in the areas of anti-corruption and / or judicial reform. The Board will approve its procedural rules and evaluation methodology.

The decision of the Ethics Board will be considered adopted if at least four members of the Board have voted for it, providing that all international experts have express support in favor of the adopted decision. Such quorum for decision-making will ensure that the list of candidates recommended for appointment to the HCJ includes only those candidates whose integrity is not in doubt.

Organizational and technical support of the Board’s activities will be provided by the State Court Administration.

The Ethics Board will also conduct a one-time integrity check of the HCJ’s current members, based on the results of which it will be possible to initiate the removal of the relevant HCJ member before the appointing (electing) authority. From the moment of adopting of the recommendation on dismissal, such HCJ member is suspended from office until the adoption of the final decision by the appointing (electing) authority. Currently, HCJ members are protected from dismissal and responsibility, and therefore they influence judges, punish whistleblower judges, and favorably treat outright corrupt officials.

The draft law also provides for strengthening the role of the HCJ inspectors. Currently, they are ordinary assistants to the HCJ members, who are appointed without competition and carry out their assignments. It is planned that the new disciplinary inspectors will receive the status of civil servants and will be appointed based on competition results. The Head of the Disciplinary Inspectors Service will be appointed by the HCJ in accordance with the procedure established by the legislation on civil service. Disciplinary inspectors should become one of the key independent actors in disciplinary proceedings, who will effectively take over the functions of HCJ members assigned as spokespersons in disciplinary matters. This will speed up the processing of disciplinary complaints.

Thus, the clear advantages of the draft law are as follows:

• enshrining in law the integrity and professional ethics as requirements for the HCJ members;
• improving the competitive procedure for the appointment (election) of the HCJ members through introduction of pre-screening of candidates by the Ethics Board for compliance with integrity;
• functional and organizational independence of the Ethics Board, openness and transparency of its activities;
• involvement of international experts in the preliminary selection;
• vetting of the current members of the HCJ for compliance with integrity, with the possibility of their dismissal;
• introduction of an autonomous service of the HCJ disciplinary inspectors, which will speed up the consideration of disciplinary complaints and reduce the opportunities for the HCJ members to reject them without justification;
• establishing in the law the terms of separate stages of disciplinary proceedings.

Weaknesses of the draft law that need to be improved upon are as follows:

• the Head of the HCJ is authorized to appoint members of the Ethics Board (the Constitutional Court can interpret this as the Ethics Board’s dependence on the HCJ, which it previously declared unconstitutional; this will also allow the HCJ to block the formation of the Ethics Board – this has already happened in the past, so one should not repeat the same mistakes);
• members of the Ethics Board appointed under the quota of the Council of Judges will be able to block agents of changes as candidates to the HCJ as well as recommendations on the dismissal of dishonest members of the HCJ;
• timeframe for the HCJ candidates and current HCJ members vetting by the Ethics Board are too short, considering that the due process guarantees of their participation must be respected;
• the Ethics Board’s authority to initiate the dismissal of the HCJ members will be a one-time occurrence;
• the risk that disciplinary inspectors service will be formed in manipulative way by the current HCJ members before conducting checks on integrity and ethics criteria.

How to improve them?

• The Head of the HCJ should not have the authority to influence the formation of the Ethics Board (this authority with respect to international experts may be granted, for example, to the Minister of Justice, and to the Council of Judges with regard to judges);
• improve the decision-making role of international experts in the Ethics Board (providing decisive role of international part of the Board in case of dividing votes 50% / 50%) or at least provide that, based on the results of the current HCJ members integrity checks, the Ethics Board must decide on their compliance with integrity and professional ethics criteria. If such a decision is not made, then the submission should be made to the appointing (electing) authority on the dismissal of the HCJ member. This will avoid blocking such submission by Ethics Board members appointed under the Council of Judges quota;
• establish more realistic timeframe for Ethics Board to conduct analysis of the HCJ candidates and members, which will be tied to the scope of work necessary;
• The Ethics Board should be able to review the HCJ members’ conduct for compliance with integrity and professional ethics throughout the whole period of its existence (6 years).

Draft law №5069 “On Amendments to Article 188-32 of the Code on Administrative Offenses of Ukraine regarding liability for failure to comply with lawful demands of the disciplinary inspector of the High Council of Justice”.

What it envisions?

It proposes to establish administrative liability for non-compliance with lawful demands of the HCJ disciplinary inspector. Therefore, the draft law supplements the previous one in order to strengthen the role of the disciplinary inspectors service. It should be supported.

Draft law № 5067 “On amendments to the Code of Administrative Justice of Ukraine regarding the first-instance case jurisdiction of the Supreme Court”.

What it envisions?

It proposes to transfer the cases relating to appeal of regulatory acts (including regulatory acts and decision regarding utility tariffs for the population) of the Government, ministries, other central executive bodies, the National Bank of Ukraine, or other bodies whose authority extend throughout entire Ukraine from the jurisdiction of the District Administrative Court of Kyiv (hereinafter – DACK) to that of the Supreme Court of Ukraine.

Thus, the clear advantages of the draft law are as follows:

• Restricting the exclusive jurisdiction of the DACK will allow to reduce the risks of the DACK’s abuses in favor of oligarchs and certain political forces.

Weaknesses of the draft law that need to be improved upon are as follows:

• The draft law does not resolve the DACK problem in a comprehensive manner. The DACK became infamous not for its decisions on regulatory acts, but primarily for its abuses during consideration of cases regarding individual decisions and inactions. In particular, this includes unjustified interferences in the activities of the National Anti-Corruption Bureau (for example, the requirement to exclude information about A. Sytnyk as the director of the Bureau from the official register); personnel decisions regarding top officials (for example, removal of Acting Minister of Health U. Suprun, restoring R. Nasirov in office); competitive procedures (for example, suspension of the government’s decision on competition for the position of the head of customs); activities of members of the High Qualification Commission of Judges; as well as illegal blocking the competition for the HCJ, finding the nationalization of Pryvatbank as illegal, etc.
• proposed amendments only partially fulfill the commitments made to the International Monetary Fund. Paragraph 26 of the Memorandum with the International Monetary Fund provides that model administrative cases against nationwide authorities should be referred to the Supreme Court according to certain criteria, which will include factors such as cases of national importance, those exceeding a predetermined threshold, or having significant impact or harm to the country and relating to the decisions, actions, or inactions of specific national authorities. The proposed amendments do not take into account these criteria.

How to improve them?

• the exclusive jurisdiction of the Supreme Court should include not only cases relating to appeals of regulatory acts of central executive authorities, but also other cases of national importance, where the risk of harm due to abuses committed by the DACK is the highest, including all cases on forming the new composition of the HCJ, the High Qualification Commission of Judges and relevant Ethics Board and Selection Commission (implementation of this suggestion requires amendments to the draft before the first reading because it will be impossible to amend other articles of the Code of Administrative Justice by the draft during the second reading);
• consider the possibility of establishing a High Administrative Court (modeled after the High Anti-Corruption Court) to consider cases of national importance in the first instance, with simultaneous merger of the DACK and the Kyiv (Regional) District Administrative Court into one court and forming it on a competitive basis. Obviously, implementation of this idea would require legislative decisions.

Conclusion. The President’s legislative initiatives are very timely (in fact, they were needed yesterday). In general, they should be supported with further refinement of certain provisions aimed at avoiding risks of ineffective implementation of amendments. In this context, the draft law №3711d on the formation of new composition of the High Qualifications Commission of Judges is also important, the concept of which requires coordination with the new draft laws and should be revised (the unreformed HCJ should be excluded from all parts of competition to the High Qualifications Commission of Judges). The work on resolving the problems of DACK should be continued in the future.

Source: Centre of Policy and Legal Reform