The legislation envisages fully replacing the members of the High Qualification Commission of Judges, the agency that vets and hires judges. The bill also stipulates halving the number of Supreme Court judges from 200 to 100 and selecting a new, smaller Supreme Court from the existing judges.
According to civic activists and anti-corruption watchdogs, the new version of the bill is better than the one passed in September in the first reading. However, it fails to replace the High Council of Justice, gives insufficient powers to foreign experts and potentially allows the discredited Kyiv Administrative District Court to reverse the reform, watchdogs say.
High Qualification Commission
Under the bill, a selection commission comprised of three members of the Council of Judges and three members of the Public Council of International Experts, a foreign advisory body, will choose new members of the High Qualification Commission of Judges within 30 days of the law taking effect.
In a joint statement, the DEJURE Foundation, Transparency International Ukraine, the Anti-Corruption Action Center, the AutoMaidan anti-corruption watchdog and the Center of Policy and Legal Reform called on the Rada to amend the bill and give foreign experts control of the selection process for the new High Qualification Commission. They said that four of the six members of the commission should be foreign experts, but the statement was ignored by the Rada.
Members of the Public Integrity Council, the judiciary’s civil society watchdog, argue that this weakens foreigners’ ability to veto tainted judges and potentially allows the Council of Judges to block judges with a reputation for integrity.
High Council of Justice
Members of the Public Integrity Council have also criticized the bill for failing to replace members of the unreformed High Council of Justice. Civil society has called for re-launching the council, and Zelensky’s team previously promised to do so.
The upside is that a new commission, comprised of three members of the High Council of Justice and three members of the Public Council of International Experts, will be able to fire members of the High Council of Justice and the High Qualification Commission if they violate the law or standards of ethics and integrity.
If the commission’s decisions are disputed, they can only be overturned by a joint meeting of the High Council of Justice and the ethics commission, and at least two foreign experts must uphold the decision to overturn it.
The yet-to-be-formed High Qualification Commission of Judges will select a new, smaller Supreme Court from the current judges. Those deemed unworthy of the Supreme Court will either be fired or transferred to appeal courts.
Members of the Public Integrity Council have criticized the legislation for failing to specify the procedure for selecting the new Supreme Court. It is not clear if the authorities will fire tainted judges or only those disloyal to the new authorities.
Under Poroshenko, the High Council of Justice and the High Qualification Commission of Judges appointed 44 Supreme Court judges who the Public Integrity Council says violated integrity and professional ethics standards.
One of the dangers of the legislation is that decisions by the ethics commission and the commission for selecting the High Qualification Commission can be disputed by the controversial Kyiv Administrative District Court, which the Public Integrity Council and anti-corruption watchdogs have called to liquidate.
The Kyiv Administrative District Court has long been mired in controversy and corruption scandals and is known for questionable rulings and alleged connections to influential politicians.
The Rada failed to pass an amendment allowing the Supreme Court to consider the commissions’ decisions instead of the Kyiv Administrative District Court.
On Aug. 2, the Prosecutor General’s Office charged top judges of the Kyiv Administrative District Court with issuing unlawful rulings and unlawfully interfering in the work of other judges. Law enforcers also released shocking audio recordings of the judges implicating themselves in various crimes and exposing what appears to be their feeling of total impunity. They deny the accusations of wrongdoing.
“Does the bill guarantee results?” the Anti-Corruption Action Center asked. “Of course not. But it definitely creates a real opportunity to make Ukrainian courts much better. Whether or not we as a society will use this opportunity depends only on us.”