Ukraine’s long-awaited judicial reform has been put at risk again. The Council of Judges has blocked the creation of an Ethics Council, the key element of the reform.
Several post-Euromaidan attempts to reform Ukraine’s judiciary have been made in Ukraine, during the presidencies of both Petro Poroshenko and Volodymyr Zelenskyy.
On the legal level, Poroshenko’s reform initially seemed to be indeed revolutionary and was evaluated positively by NGOs involved in the field. However, it soon became clear that it was failing on the implementational level due to efforts by the old guard judges and judicial officials. Their actions revealed their intentions to preserve the old corrupt judicial system in Ukraine. In particular, they covered up for corrupt judges who persecuted Euromaidan activists and generally opposed the change.
Confronted with this situation, the NGOs dealing with the issue came up with the idea to reform the core of the judiciary itself. This core is consistent with the two bodies of judicial governance, the High Council of Justice (HCJ) and the High Qualification Commission of Judges (HQCJ).
The HQCJ is the body responsible for the selection and qualification assessment of judges. The HCJ in its turn makes final decisions on the appointment, punishment, or dismissal of a judge.
Predictably, the two bodies have tried hard to prevent such changes.
However, the demand for judicial reform has become so acute for Ukraine’s society and beyond – in fact, all the other reforms and to some extent, Ukraine’s cooperation with international partners became dependent on the judiciary – that changes have become unavoidable.
In summer 2021, the Ukrainian parliament finally adopted all the legislation that at least theoretically allows for the reform of its corrupt judiciary.
In particular, it aimed at changes within the HCJ and the HQCJ.
Zelenskyy’s bill regarding the reform of the HCJ appeared on the agenda in February 2021. According to the bill, a new body, the Ethics Council, was introduced to assess the integrity of the candidates to the HCJ and its current members. The Ethics Council would consist of six members. Three out of the six are judges appointed by the Council of Judges, another three are international experts suggested by the international organizations. A decision on a candidate would be made by four votes of the Council’s members.
So far, Ukraine has only one truly successful example of creating a court – the High Anti-Corruption Court in 2018 (it started working in 2019). Its success was related to the participation of international experts, delegated by the international organizations, in the selection process.
The positive lesson has been learned and the NGOs in the field started to advocate the idea of engaging international experts in the process of forming the bodies of judicial governance.
Zelenskyy’s draft law passed the first reading in May. Before the second reading, it was improved giving international experts within the Ethics Council a dominant vote. In particular to pass decisions, two out of four Council votes have to come from the international experts. If the votes are evenly distributed, the decision supported by the votes of at least two international experts will prevail.
After the legal start to the reform was done, the process of implementation was initiated.
On 10 September, international organizations that provide support to Ukraine in the fields of judiciary and anti-corruption already delegated experts to the Ethics Council.
In its material, DEJURE Foundation, a leading NGO in the field of judiciary, stated that the candidates have an ideal image. Among them, there is former Associate Justice of the Massachusetts Supreme Judicial Court Robert J. Cordy , former judge of the Court of Appeal of England and Wales Sir Anthony Hooper , former Estonian Prosecutor General Lavly Perling , former North Rhine-Westphalia Attorney General Walter Zelter , retired federal judge with the United States Court of Appeals Rosemary Barkett, and the former judge and the chairman of the Ljubljana District Court Ales Zalar .
On 13 September, the Council of Judges gathered for its meeting which later leading NGOs dealing with the reform called “sabotage.” At the meeting, the members of the Council of Judges should have delegated their members to the Ethical Council. However, they did not.
At the meeting, the members of the Council of Judges did not select any of the four candidates who intended to be members of the Ethics Council. In particular, out of 26 members of the Council of Judges 16 did not vote for any of the candidates.
“By its vote, the Council of Judges has jeopardized judicial reform. Due to sabotage chaired by Bohdan Monych, the Ethics Council, which will clean up the HCJ, can no longer work. We see a clear example of a judge’s mutual guarantee: judges defend a corrupt and unreformed HCJ because they fear for their fate. Volodymyr Zelenskyy will personally bear the political responsibility for this failure as the author of the law, which once again handed over judicial reform to the judicial mafia,” Mykhailo Zhernakov , Chairman of the Board of the DEJURE Foundation said.
The Office of the President reacted to the sabotage by the Council of Judges, calling a working group meeting on 16 September with the participation of the heads of judicial governance, in particular the heads of the Council of Judges, the Supreme Court, MPs, as well as the Ambassadors of the G7.
“I will not allow the blocking of the most important reform of the country, which I promised to Ukrainians and which I initiated. Any illegal action aimed at blocking judicial reform will be immediately assessed and repulsed. I will not allow judges who hinder the reform and cleansing of the judiciary to deprive Ukrainians of the right to justice. And judges who want to work in a transparent system must have full support, ” Zelenskyy said.
The head of state also expressed gratitude to international organizations that provide assistance to Ukraine to support judicial reform and combat corruption and last week delegated experts to the contest commission that will select members of the HQCJ and the Ethics Council.
Meanwhile, on 13 September the Council of Judges made another scandalous decision electing its three representatives to the competition commission of the HQCJ. Two out of these three have a dubious image.
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- 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 jud ges, 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
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