On Friday, October 9, the European Commission for Democracy through Law (Venice Commission) approved its opinion on draft law No. 3711 on judicial reform, making a number of critical remarks on the new procedure of the formation of the High Qualification Commission of Judges and noting the importance of immediate resolving of the issue of integrity of the members of the High Council of Justice.
As reported on the website of the Anti-Corruption Action Center (AntAC) last week, the draft law introduced to the Verkhovna Rada by President of Ukraine Volodymyr Zelensky in June was approved in July by the parliamentary committee on legal policy, and later Speaker of Parliament Dmytro Razumkov officially sent the draft law to the Venice Commission for the evaluation. The Venice Commission said in its opinion: "As draft law No. 3711 cannot bring a holistic reform, this opinion cannot have a character of a holistic opinion." The Anti-Corruption Action Center believes that the Venice Commission made it clear that Ukraine needs a comprehensive reform of the judicial governance, and draft law No. 3711 is not such a reform.
According to the opinion of the Venice Commission, the unreformed High Council of Justice should not receive control over the newly created High Qualification Commission of Judges. International experts should be delegated to the High Qualification Commission of Judges competition committee only by recognized world organizations, and in the absence of nominations from international experts. The competition committee should have possibility to evaluate all information about candidates to the High Qualification Commission of Judges, including information with limited access. This means that the High Council of Justice should not influence on this and interfere in the work of the commission and analysis of candidates.
Members of the Venice Commission supported the provisions of the draft law, which abolish the reduction of judges of the Supreme Court. In addition, they spoke about the transfer of judges of the preliminary Supreme Court of Ukraine to the new Supreme Court. These judges must be checked for integrity in the manner prescribed by law.
The Venice Commission's members in their opinion note that "the matter of integrity of the High Council of Justice members is an urgent one and must be dealt without delay" and, referring to the Constitution, refuted the argument about the impossibility of creating a separate independent agency to verify the integrity of the High Council of Justice members. International experts and representatives of the public should be involved in this process. At the same time, the Venice Commission makes a warning that this agency is temporary.
Until such a reform is carried out, experts of the Venice Commission said that the High Council of Justice cannot be given any new powers in the judiciary.
The Verkhovna Rada should take into account the opinion of the Venice Commission in order to maintain cooperation with the West. Draft law No. 3711 needs to be significantly improved before being approved by the Parliament. In addition, in view of the position of the Venice Commission on the issue of the integrity of the High Council of Justice's members, another draft law should be submitted to the Parliament, which will provide for a comprehensive reform of the High Council of Justice.