“Historical event” as Ukraine finally adopts all legislation for judicial reform

After years of tribulations, struggles, and setbacks, the Ukrainian parliament finally adopted all the legislation that will, at least theoretically, allow reforming its corrupt judiciary. Legal expert and advocate of the reform Mykhailo Zhernakov did not mince words when he exclaimed “This is a historical event, without exaggeration. There has been no such ambitious project since the Revolution of Dignity,” on his Facebook page. What makes this news outstanding is that on 14 July, MPs finished adopting all the remaining crucial bills and amendments that rule out any sabotage in Ukraine’s grand task of clearing up corrupt judges from courts. Namely, this is a bill on changing the High Council of Justice, a key body of judicial governance. Together with the recently passed law on the High Qualification Commission of Judges, another such body, it allows stating that the judicial reform in Ukraine is finally launched. Corrupted Ukrainian courts have been intervening in political processes, blocking reforms, preventing Ukraine’s development as a democratic country, and scaring away foreign investors. Ukrainian and world media have been stressing these problems numerous times. However, all the courts can’t be reformed one by one. A systematic solution was needed. The experts in the field from civil society came up with the solution a long time ago -- to reform the bodies of judicial governance responsible for forming the judicial corps. These bodies are the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ). Achieving this was the hardest challenge. Previously, the most ambitious attempt of judicial reform in Ukraine was made during Petro Poroshenko’s presidency. Back then, the qualification assessment of judges was launched, civil society was included in the process, as well the new Supreme Court was created. However, as judicial experts admitted afterward, its biggest mistake was putting the responsibility of implementation of the reform on the unreformed bodies of the judicial self-government, full of compromised members. During the next years, these bodies became the main guardians of the old corrupted judicial system. Learning from that mistake, civil society pushed the idea of changes within the HCJ and the HQCJ. In particular, they stated that for a genuine reform, the principles of forming the two bodies have to be changed. As well, international experts, not tied in the knots of Ukraine’s judicial system, have to be involved in the process of forming the two bodies. Such a scheme already worked when the High Anti-Corruption Court, made specifically for dealing with top-corruption cases, was created from scratch in Ukraine. The participation of international experts in the process of selecting judges to this important court is considered to be the main reason for its fruitful results: for the first time in Ukraine’s history, previously untouchable high-level corrupt officials started to be punished. Predictably, the core of the judicial system became the main force that blocked the participation of international experts. When during the first attempt of Volodymyr Zelenskyy’s reform, the HQCJ was disbanded, the HCJ made everything possible to prevent the international experts from participating in the process and approached omnipotent control over Ukraine’s judiciary.

• Read also: How Ukraine can tame its “judicial mafia”

A breakthrough with the HCJ

Zelenskyy’s bill #5068 regarding the reform of the HCJ appeared on the agenda in February 2021. According to it, a new body, the Ethical Council, was introduced to assess the integrity of the candidates to the HCJ and its current members. The Ethical Council would consist of six members. Three out of them are judges appointed by the Council of Judges, another three -- international experts suggested by the international organizations. A decision on a candidate would be made by four votes of the Council’s members. The draft law passed the first reading in May. Before the second reading, it was improved giving international experts within the Ethical Council a predominant vote. In particular, for making a decision, two out of four votes of the Council have to come from the international experts. If the votes are evenly distributed, the votes with the voices of at least two international experts will prevail. However, before the second reading, the draft law contained another tricky provision. According to it, the Ethical Council can suspend a candidate if it identifies that he does not correspond to criteria of integrity. But only the body which appointed the candidate (congresses of judges, lawyers, prosecutors, and law schools) can ultimately dismiss him. Therefore, in such a way dishonest candidates received an opportunity to be saved and the role of the Ethical Council was neglected in the version of the law prepared for the second reading. To fix it, society came up with amendment #733. It envisaged the specific procedure of voting of the congresses of judges, lawyers, prosecutors, and law schools. According to it, to keep a candidate in the position, the majority of votes of a congress would be needed. The experts are confident that it would make it much more complicated to save a dishonest candidate from dismissal. The terms of powers of the Ethical Council is six years.

The challenges with the law on the HQCJ

To weeks before, MPs supported law #3711-d on relaunching the HQCJ. As well, its main issue was related to the key role of the international experts in the procedure of selecting members of the body. Due to the corresponding amendment promoted by the experts from society, international experts were provided with a decisive role.

• Read also: Ukrainian Parliament puts wind in sails of judicial reform, adopting bill on launch of key body

After passing the second reading, Zelenskyy vetoed the law as it turned out that two contradicting amendments were included to it. The president recommended parliament to keep only an amendment on the key role of international experts. On 13 July, parliament supported the president's recommendations. As a result, Ukraine’s judiciary received two long-awaited laws launching reforms in the very core of Ukraine’s judiciary. The president has to sign the bills to launch the implementation. The implementation in its turn will require close control over the process of forming the two bodies. However, the legal stage of the reform seems to be finally over.

Read more:

• Reforming judiciary in focus of Ukraine’s first high-level non-oligarchic international conference
• Saving Ukraine’s Anti-Corruption Court: international experts filter candidates, facing roadblocks from old system
• How Ukraine can tame its “judicial mafia”
• Zelenskyy dismisses two Constitutional Court judges, deepening constitutional crisis
• Why post-Euromaidan anti-corruption reform in Ukraine is still a success
• Despite second attempt at judicial reform, political decisions rule Ukrainian courts