Experts question future of Ukrainian judiciary as court cancels judicial reform

Last week the Constitutional Court of Ukraine (CCU) adopted its decision on the law 193-IX, which envisaged the next step of judicial reform. The law was initiated by President Zelenskyy in August 2019 and the Parliament approved it in October. Some of the provisions came under harsh criticism by local activists and the country’s international partners. Shortly after the law entered into force, the Supreme Court (SC) questioned its constitutionality. The law provided for three significant changes:

• cutting the number of SC judges from 200 to 100;
• establishing the Ethics Commission (EC) which would include international experts and could initiate the dismissal of the untrustworthy members of the High Council of Justice (HCJ) - a primary judicial governance body responsible for disciplinary proceedings against judges, as well as SC judges;
• dismissing the High Qualification Commission of Judges (HQCJ), another judicial council responsible for selecting new judges, and selecting the new HQCJ in open competition - the Selection Commission (SCom) would include the international experts;

Here is a short analysis of what the CCU decided and how this will impact the reform. Reduction of the number of SC judges is unconstitutional, whereas:

• it poses a threat to the independence of the judiciary by providing additional grounds for the dismissal of the judges not envisaged by the Constitution;
• the reduction of SC judges is, in fact, its reorganization, which according to the Constitution, should be conducted with the consent of the HCJ.

Is this position well-grounded? This part of the decision, unlike others, is based on the provisions of the Constitution. The shrinking of the SC was justly criticized. How will this affect the SC? The max number of the SC judges is 200, which coincidentally (or not) equals to the number of judges in the SC and the old SC that should be merged due to the previous CCU’s decision. Therefore, SC stays intact.

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2) The EC is unconstitutional, whereas:

• “its powers have no constitutional grounds”;
• the EC, as the subsidiary body of the HCJ, can not exercise control over the HCJ.

Is this position well-grounded? No, it is not. The cited arguments are the only justification for liquidating the EC. The CCU refused to analyze the nature of the decision-making model envisaged by the law and concluded that the EC would dismiss the HCJ members. However, the EC could not do it on its own. The EC would only initiate the decision to be considered by the HCJ. The HCJ was the one to take the final decision with the participation of international experts who would play the role of additional safeguards. How will this affect the HCJ? The HCJ members, as well as the SC judges, will not undergo any integrity checks. The dubious HCJ members will keep their control over the judiciary. 3) Cutting the HQCJ to 12 members is unconstitutional, whereas:

• terminating the powers of the previous HQCJ without establishing any transitional model is a violation of the right to access to justice.

Is this position well-grounded? No, it is not. While declaring unconstitutional the new composition of the HQCJ, the CCU did not declare unconstitutional the provisions regarding the immediate termination of the HQCJ members. This position appears to be somewhat inconsistent, whereas the absence of the HQCJ for an extended time was named as the only reason for declaring the new HQCJ composition unconstitutional. Moreover, the CCU left intact all the provisions on the competition to the HQCJ, including the SCom with international experts. It seems that the only reason for canceling the new composition of the HQCJ was to deprive the Public Integrity Council (PIC) of its strengthened position. The PIC was created in 2016 as an independent body formed by the SCOs to conduct integrity checks of the judges and candidate judges. Unfortunately, the HQCJ often overruled PIC’s negative opinions on judges and greenlighted their appointment. The reduction of the HQCJ from 16 to 12 members made it more complicated to overrule PIC’s negative opinions as 11 out of 12 votes were needed. Now the HQCJ will easily overrule PIC’s opinions as it did during the competition to the SC. How will this affect the HQCJ? An open competition to the HQCJ can be held. However, if no legislative amendments are adopted, the composition of the HQCJ will include 16 members. The PIC’s opinions can be easily overruled. Preliminary outcomes The judicial corporation inside the CCU as 9 out of 15 judges are representatives of the judiciary is protecting the status quo in the judiciary by all means. Therefore the CCU “killed” the EC, which could potentially clean the HCJ and weakened the PIC. It seems that the competition to the HQCJ was left intact, whereas the HCJ fully controls this process. The decision itself is not a verdict to the reform. It gives enough space for the legislative maneuver to resume the reform and comply with the decision:

• the EC could be established as an independent authority (not a subsidiary body of the HCJ) with the powers to initiate the dismissal of the HCJ members;
• the HCJ can be deprived of its influence over the formation of the HQCJ;
• the PIC can be institutionalized, its role in the qualification assessment can be strengthened;
• the untrustworthy judges of the SC could undergo disciplinary proceedings based on PIC’s opinions, as was recommended by the Venice Commission.

The above-listed steps can be achieved if the Parliament adopts appropriate legislative amendments. This, in its turn, will require more political effort to overcome the resistance from the corrupt judicial corporation. Therefore, now is high time for the President and his party to demonstrate whether they genuinely wish to establish the independent judiciary in Ukraine or will use the CCU’s decision as an excuse to return to “business as usual.”

Stepan Berko, advocacy manager at the DEJURE Foundation

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