On 29 August, President Volodymyr Zelenskyy submitted urgent draft law №1008 “On Amendments to Certain Laws of Ukraine Concerning Activity of Judicial Self-Government Agencies” to the Parliament. This document is designed to regulate problematic issues of activity of the High Qualification Commission of Judges of Ukraine (HQCJ) and the High Council of Justice (HCJ).

Update of October 16, 2019. On October 15 and 16, the Parliament reviewed and passed draft law No. 1008. Some changes have been made to the submitted document.

Positive changes include the following:

  • HQCJ members will be reelected at a competition;
  • the new HQCJ will approve its regulation independently, without running it by the HCJ;
  • the ethics commission will verify the current HCJ members for integrity within 30 days of its creation;
  • the ethics commission will verify all candidates for the HQCJ, the HCJ and Supreme Court judges during six years;
  • the decisions of the ethics commission will be reviewed at the joint meeting of the HCJ and the commission the based on the same model as the competition for the High Anti-Corruption Court.

The following risks remain, however:

  • the Supreme Court composition will be reduced to 100 judges and the selection procedure will be established by the current “old” HCJ;
  • the decisions of the selection board and the ethics commission will be disputed in the notorious Kyiv Administrative Court.

What will change?

A Commission on Integrity and Ethics will be created under the High Council of Justice, consisting of six individuals: three HCJ members and three international experts. The commission will oversee the transparency and accountability of judicial self-government agencies and “facilitate taking into account the public opinion.”

Besides, the High Qualification Commission of Judges of Ukraine will be rebooted:

  • The number of members will decrease from 16 to 12;
  • The Head of the HQCJ and their deputies, the Head of the State Judicial Administration and their deputies who were in office between 21 November 2013 and 19 May 2019 will be lustrated (the Law of Ukraine “On Lustration” will be applicable to them);
  • Members of the HQCJ will be appointed by the HCJ based on competition results. The selection board will include 6 people: three representatives of the Council of Justice of Ukraine and three international experts from the PCIE.
  • Judicial remuneration will be established based on unified rules for all judges regardless of their qualification assessment.

Our recommendations

The High Council of Justice includes many individuals who do not comply with the criteria of integrity and professional ethics. It is they who will make decisions on appointment of HQCJ members, approve the HQCJ procedure and form half the Commission on Integrity. Its effectiveness is also questionable, since the final decision is still made by the HCJ. The draft law also does not say anything about engagement of civil society representatives in the reboot of judicial self-government agencies.

That is why the suggested changes are only a half-measure. Without rebooting the High Council of Justice, there will be no true independence of the judicial system.

Additionally, the issue of qualification assessment of judges should be resolved clearly, since currently, the draft law leaves it all to the discretion of the HQCJ. Besides, there is still the risk that the number of Supreme Court judges is limited just to one hundred, while the number of cases will not decrease.

Where we are now

On 29 August, President Volodymyr Zelenskyy submitted urgent draft law №1008 “On Amendments to Certain Laws of Ukraine Concerning Activity of Judicial Self-Government Agencies” designed to regulate problematic issues of activity of the High Qualification Commission of Judges of Ukraine and the High Council of Justice.

Currently, the activity of the High Qualification Commission of Judges is problematic in connection with numerous court proceedings concerning its members, incomplete qualification assessment of judges and failure to take into account the opinion of the Public Integrity Council.

Key aspects of the suggested changes

Draft law No. 1008 introduces a lot of novelties designed to regulate the activity of judicial self-government agencies and partly the judicial system of Ukraine by making changes to the Laws of Ukraine “On Judiciary and the Status of Judges,” “On the High Council of Justice” and “On Lustration.”

  1. Commission on Ethics and Integrity

The draft law stipulates the creation of the Commission on Ethics and Integrity under the High Council of Justice. It will have the following key characteristics:

  • 6 members; three representatives of the HCJ and three international experts from the PCIE;
  • oversees the transparency and accountability of judicial self-government agencies and “facilitates taking into account public opinion”;
  • submits motions on the dismissal of HQCJ/HCJ members, including on the grounds of grave or systematic neglect of the duties, which is inconsistent with the status of the HQCJ/HCJ member, or being unfit for office, or other behavior which undermines the authority and credibility of justice and judicial authorities, including failure to comply with ethical standards.
  1. High Qualification Commission of Judges of Ukraine

The draft law suggests rebooting the High Qualification Commission of Judges of Ukraine.

Key characteristics:

  • The number of members will decrease from 16 to 12 (as proposed by civil society organizations)
  • The Head of the HQCJ and their deputies, the Head of the State Judicial Administration and their deputies who were in office between 21 November 2013 and 19 May 2019 will be lustrated (the Law of Ukraine “On Lustration” will be applicable to them);
  • The 15-year experience in the legal field is still required to apply for a position in the HQCJ;
  • Members of the HQCJ will be appointed by the HCJ based on competition results. The selection board will include 6 people: three representatives of the Council of Justice of Ukraine and three international experts from the PCIE. The decision is made by the majority, but the three international experts should all vote for it (blocking vote; reflects the proposal of civil society organizations);
  • HQCJ procedure will be approved by the HCJ;
  • The new HQCJ will decide independently whether it should continue the qualification assessment.
  1. Other

Key outtakes:

  • Judicial remuneration will be established based on unified rules for all judges regardless of their qualification assessment;
  • The number of Supreme Court judges will reduce from 196 to 100 people, the selection will be held by the HQCJ among the current Supreme Court members.

Conclusions

The changes proposed in the draft law will definitely have a positive impact on the Ukrainian judicial system. The positive aspects include a full reboot of the HQCJ, engagement of international experts in the selection board, with the “blocking vote,” and in the Commission on Integrity, changes in the Supreme Court. 

However, none of these changes will be effective unless the High Council of Justice is rebooted. Among HCJ members, there are many individuals of questionable integrity and professional ethics. It is they who will make decisions on appointment of HQCJ members, approve the HQCJ procedure and form half the Commission on Integrity. Its effectiveness is also questionable, since the final decision is still made by the HCJ. The draft law also does not say anything about engagement of civil society representatives in the reboot of judicial self-government agencies.