Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.
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- The Verkhovna Rada of Ukraine preliminary approved the Draft Law on constitutional amendment to reduce the number of People's Deputies of Ukraine without taking into account the legal standpoint of the Constitutional Court of Ukraine
- Government proposes to harmonize the law on judicial system with anti-corruption legislation, however sone negative side effects are possible
- CPLR Reports ranked in 2019 Global Go To Think Tank Index Report
- President and Prime Minister have determined judicial reform one of the priorities
- High Council of Justice imitates the formation of a new High Qualifications Commission of Judges
- The Ministry of Justice presented a new model of jury trial in Ukraine
- Ukraine has expectedly fallen in the Corruption Perceptions Index-2019
- Kyiv District Administrative Court will supervise the formation of the HQCJ and the activities of the HCJ, as well as disciplinary practices against prosecutors
- Constitutional Court began to consider the case on the unconstitutionality of the President V. Zelensky’s judicial reform
- High Council of Justice approved the methodology for assessing candidates' professional experience
- Criminal responsibility for sexual offenses against children is strengthened and the Unified Registry of such persons is established for the purpose of prevention
- Constitutional Court has prohibited amending the Constitution in terms of introducing additional grounds for early termination of powers of the People's Deputy of Ukraine
- People’s deputy from Kolomoisky's group proposes to "roll back" judicial reform
The Verkhovna Rada of Ukraine preliminary approved the Draft Law on constitutional amendment to reduce the number of People's Deputies of Ukraine without taking into account the legal standpoint of the Constitutional Court of Ukraine
On February 4, 2020, the Verkhovna Rada of Ukraine preliminary approved the Draft Law on amending Articles 76 and 77 of the Constitution of Ukraine (concerning the reduction of the constitutional composition of the Verkhovna Rada of Ukraine and the establishment of the proportional electoral system) (Reg. No. 1017). Despite the fact that Draft Law received a positive opinion of the Constitutional Court of Ukraine, Parliament did not take into account the legal standpoint of the Constitutional Court of Ukraine in the Opinion of December 16, 2019 regarding the text of the Draft Law. In particular, the Constitutional Court of Ukraine highlighted the following:
- the Constitution of Ukraine shall establish clear and unambiguous provisions on universal, equal and direct suffrage by secret ballot for the parliamentary election;
- the type of electoral system, its features and peculiarities are the matter of political expediency, that is why fixing the type of electoral system in the Constitution of Ukraine is not mandatory;
- the reduction of the constitutional composition of the Verkhovna Rada of Ukraine should be applied together with correction of other provisions of the Constriction of Ukraine determining a certain (specific) number of People's Deputies of Ukraine; system approach towards all relevant provisions of the Constitution of Ukraine should be considered;
- there is a collision between proposed Paragraph 17 of Section XV "Transitional Provisions" of the Constitution of Ukraine and Article 90 (1) of the Constitution of Ukraine on the matter of termination of powers of the Verkhovna Rada of Ukraine. The application of above-mentioned Paragraph 17 violates the constitutional principle of time continuity of legislative power.
2. CPLR assessment
The CPLR has repeatedly highlighted the binding nature of the legal standpoint of the Constitutional Court of Ukraine for the Verkhovna Rada of Ukraine on the matter of constitutional amendment process. The proposal of Paragraph 17 of Section XV "Transitional Provisions" of the Constitution of Ukraine is dangerous for the stability of the constitutional order of Ukraine, since the risk of no parliament shall be effective in an indefinite time period, which threatens the national security of the state and can lead to violation of human right. In addition, changing the total number of People's Deputies of Ukraine requires correction of all other provisions of the Constitution of Ukraine that are directly related to the quantitative composition of the Verkhovna Rada of Ukraine (in particular, the number of People's Deputies of Ukraine who have the right to apply to the Constitutional Court of Ukraine with a constitutional appeal, which has not to be modified by the Draft Law).
Therefore, the preliminary approval of this Draft Law in its current text version without taking into account the legal standpoint of the Constitutional Court of Ukraine is an improper way of constitutional revision, which leads to the collisions in the text of the Constitution, unjustified reduction of the number of People's Deputies of Ukraine. In turn, this situation leads to a deterioration of the constitutional culture in Ukraine, which is, by the way, extremely low today.
On January 28, the Cabinet of Ministers submitted to the Parliament a draft law “On Amendments to the Law of Ukraine “On Judiciary and Status of Judges” in connection with the adoption of the Law of Ukraine “On Prevention of Corruption”.
In particular, the draft law established that candidates for the members of The High Qualification Commission of Judges of Ukraine and for the post of a judge will inform the leadership of The High Qualification Commission of Judges of Ukraine and the relevant court about close persons who work in this body. It should prevent the work of such persons under direct supervision of a candidate.
It is also proposed to exclude from the reasons of a judge's disciplinary responsibility the delay in submitting an electronic declaration and reporting inaccurate information therein. Instead, it will remain possible to bring a judge to disciplinary responsibility only after he or she has been punished for such actions in an administrative offense case.
2. CPLR assessment
Bringing the basic terms of the Law of Ukraine “On Judiciary and the Status of Judges” and the procedure of special inspection in line with the Law of Ukraine “On Prevention of Corruption” does not raise any significant reservations.
Regarding the reduction of the reasons for bringing judges to disciplinary responsibility, there is a risk of judges avoiding responsibility for not submitting an electronic declaration or submitting it with delay and deliberately misrepresenting or deliberately omitting information specified by law in the electronic declaration.
Under different conditions (the size of the discrepancy between the declared and actual data, etc.), such acts contain signs of an administrative offense or a crime.
However, if a judge has committed a crime and the conviction against him has entered into force, then this cannot be seen as a ground for bringing him to disciplinary responsibility, as it has the effect of termination of his powers (paragraph 5 of Article 7, Article 126 of the Constitution of Ukraine).
In other words, a judge will be held liable to disciplinary action only when the court finds him guilty of committing an administrative offense related to corruption.
However, in practice, this can lead to complete avoidance of even disciplinary responsibility by a judge. Сonsidering such categories of administrative offenses, courts often close proceedings because of violations of the protocol drafting procedure, the expiry of the time-limits for bringing them to justice, and sometimes – due to the insignificance of action. This can sometimes be the result of a bail bond.
According to CPLR experts, disciplinary and administrative responsibility of a judge are independent procedures, they have different tasks, subject matter and consequences (penalties). That is why it is better to refrain from narrowing the grounds of disciplinary responsibility of a judge.
Three reports prepared with the participation of the CPLR experts were included in 2019 Global Go To Think Tank Index Report in the nomination "Best Policy Study-Report".
1. Shadow Report on Evaluating the Effectiveness of State Anti-Corruption Policy Implementation
This report presents the results of public evaluation of the effectiveness of implementing state anti-corruption policy for 2017–2018. This publication was prepared with the support of the International Renaissance Foundation. Mykola Khavroniuk, Oleksandr Kalitenko, Dmytro Kalmykov, Ihor Koliushko, Oleksandr Lemenov, Borys Malyshev, Anton Marchuk, Robert Sivers, Victor Tymoshchuk worked on it.
Executive Summary of the Shadow Report in English.
2. Instruments for strengthening confidence in the courts in Ukraine
The goal of this research paper is to facilitate an informed discussion with policymakers on improving confidence in Ukrainian courts. The research paper has been prepared based on analytical desk research; discussions with practitioners from the justice sectors in Ukraine and the Netherlands. It is published with the support of Open Society Foundation and Centre for Economic Strategy. Roman Kuybida, Maksym Sereda, Mykhaylo Zhernakov worked on it.
Report in English.
Roadmap of Reforms for 2019–2023
Сivil society coalition “Reanimation Package of Reforms” developed a Roadmap of Reforms – an updated expert vision of the priorities for reforming and developing the country for 2019–2023 in 21 areas of public policy. It is published with the support of European Union. The CPLR experts Ihor Koliushko, Julia Kyrychenko, Bohdan Bondarenko, Roman Kuybida, Oleksandr Banchuk, Anton Marchuk, Mykola Khavroniuk, Viktor Tymoshchuk participated in the preparation of the document.
Roadmap in English
On the eve of the World Economic Forum in Davos, President of Ukraine V. Zelensky declared the importance of judicial reform in the fight against corruption, and Prime Minister of Ukraine O. Goncharuk named judicial reform one of the main tasks for ensuring the economic growth of Ukraine.
2. CPLR assessment
Awareness of the top leadership of the state about the dependence of the economic development and the level of corruption on the activity of the judicial system is important for the formation of the country's development strategy. One of the first draft laws introduced by the new President to the new Parliament was a draft law relating to the judiciary (the so-called “Draft law No. 1008”).
However, it is still unclear what vector of complex judicial reform the new political power has chosen, since the draft laws introduced by the President or his political force are aimed at fragmental and not always deliberate reform of specific processes in the judiciary, rather than systemic and consistent changes.
The CPLR experts believe that recognizing judicial reform among top priorities requires political authorities to formulate a clear plan of actions in this area. Earlier, the CPLR has published its vision of judicial reform measures.
On December 26, 2019, the competitive selection to the High Qualifications Commission of Judges (hereinafter – the HQCJ) began, in which international organizations were required to delegate their representatives to the selection commission before January 3, and the candidates were required to submit documents for participation before January 13.
In total, 189 candidates applied for the competition (for 12 vacant positions of the HQCJ members). However, within the term set by the High Council of Justice (hereinafter referred to as the HCJ), the quota of international experts in the selection board was not filled, as none of the international organizations submitted their nominations.
On January 21st, the HCJ requested international organizations again to submit nominations, having previously extended the deadline for nominating members to the selection commissions by the international organizations until February 5.
2. CPLR assessment
In political points of December 9-16, 2019, the CPLR experts questioned that international organizations were delegating their representatives to the selection commission. This is because the HCJ, having approved the procedure for the competitive selection, completely eliminated the role of the international experts assigned by law and created the possibility for manipulative selection.
The CPLR experts are of the opinion that the extension by the HCJ of the deadline for submitting candidates to the selection commission is the HCJ’s attempt to shift the blame for the failure of the formation of the new HQCJ to international organizations. This situation may be addressed by adjusting the law, which will remove the HCJ from the procedure of forming a new HQCJ.
On January 20, the Ministry of Justice presented two draft laws aimed at implementing a classical jury institute model in the country. In place of the current jury trial (two judges and three jurors), under the new procedure, the jury trial will be administered by a panel of 7 jurors, who will sit separately from the judge and will not deliver a judgement, but a verdict. In the verdict, the jury must answer the question of whether the event was a crime and whether the defendant was guilty. In addition, the jury members will be elected by the voter list; being a jury member remains a person's right, not a duty.
In the first place, the right to jury trial will be given to persons who can get life imprisonment, and a little later – to persons who can be imprisoned for more than ten years.
2. CPLR assessment
As stated by V. Petrakovsky, the CPLR expert: “The jury trial is not just a change to the law. It is a different culture, a different behavior of both the authorities and the citizens, a different perception of all parties: the court, the prosecution, the defense and citizens involved in the process. I am convinced that this institute should be implemented as soon as possible."
During the parliament consideration of the draft laws, they should be improved, in particular in terms of securing the right of appeal (it is advisable that the jury's verdict can be reviewed, but only by a jury). Consideration should also be given to enshrining the duty of citizens to perform the functions of a jury and, at the same time, to exclude the obligation of a jury to submit electronic declarations of persons authorized to perform the functions of the state, since these aspects constitute a serious obstacle to citizen participation as a jury.
Recently, the result of the Corruption Perceptions Index-2019 for Ukraine was published: it got two scores down. Overall, Ukraine scored 30 points, returning to the level of 2017, and ranked 126th among 180 countries in the world. For the first time in the last six years, Ukraine has lost points on the Index. Instead, some countries confidently score points: Vietnam and Ecuador +4, Azerbaijan +5, Angola and Armenia +7, moving up in the ranking table at once by 21-28 steps. On the other hand, the last fact gives rise to the hope that proper anti-corruption activities make everything possible.
2. CPLR assessment
This result is quite expected against the background of the fact that anti-corruption reform has slowed down considerably in the last year or two: The Anti-corruption Strategy and the State Program for its implementation have not been adopted for a long time; the judicial and law enforcement systems have not been restarted and do not serve the society as it expects; a large scale privatization has not taken place, the activity of the President of Ukraine, the Verkhovna Rada of Ukraine, its committees and deputies is not becoming more transparent; the body responsible for independent state control in the area of access to public information has not yet been determined by the law; the government failed to ensure proper verification of beneficiaries, tighten control over the financing of political parties etc.
On January 15, the Verkhovna Rada adopted the Law “On Amendments to the Economic Procedure Code of Ukraine, the Civil Procedure Code of Ukraine and the Code of Ukraine on the Administrative Judiciary regarding the Improvement of the Procedure for the Consideration of Cases” (hereinafter – the law).
Before the second reading, the profile committee of the Parliament proposed to assign under the jurisdiction of the Supreme Court the cases of appealing the acts, actions or omissions of the selection commission formed to conduct a competition for the position of a member of the High Qualification Commission of Judges of Ukraine (hereinafter – the HQCJ) and the Commission on Integrity and Ethics (Ethics Commission). However, these amendments were rejected at the plenary session of the Verkhovna Rada, and therefore Kyiv District Administrative Court will consider such a category of appeals. Instead, the parliament supported the amendments, which assigned under the jurisdiction of Kyiv District Administrative Court the consideration of appeals against actions, acts or omissions of a disciplinary authority against prosecutors (previously such cases were considered by the Supreme Court).
2. CPLR assessment
In the political points of May 13-20, June 10-17, 2019, the CPLR experts reported on the probable role of the Kyiv District Administrative Court in destabilizing and blocking the work of the HQCJ. Moreover, according to the non-public investigative material published by the National Anti-Corruption Bureau of Ukraine, the chairman and judges of this court allegedly initiated court cases against members of the High Qualifications Commission of Judges (HQCJ) through some persons under their control in order to prevent them from passing the qualification assessment and establish control over the activities of this body. This court is also known for making a number of decisions that have received negative public and even international resonance (abolition of privatization of the Privatbank, suspension of the competitive selection for the post of head of customs and formation of the Public Control Council under the State Bureau of Investigation, renewal of Roman Nasirov as head of the State Fiscal Service, etc.) the widespread absence of its judges at the assessment exercise and numerous journalistic investigations into the lifestyle of its judges. That is, there are reasonable doubts as to the independence of the judges of this court.
The Selection Commission for the selection of the HQCJ members and the Commission on Integrity and Ethics are new actors in the judicial system, their creation was initiated by President V. Zelensky. Given their legal status and authority, it would be more appropriate to refer cases involving them to the Supreme Court, since it is the court of first instance in disputes with the HQCJ (the Selection Commission participates in its formation) and the High Council of Justice (the Commission on Integrity and Ethics exercises control over its activity).
Roman Kuybida, the CPLR expert believes that "Parliament's actions may indicate that judges of the District Administrative Court are loyal to political power and they can be used to "correct" the activities of new bodies in the judicial system if they demonstrate independence."
It should be reminded that the CPLR had previously provided an expert opinion on the original version of this draft law.
On November 15, 2019, the Supreme Court submitted an appeal to the Constitutional Court of Ukraine in which it declared the unconstitutionality of:
- reduction of the maximum number of judicial positions in the Supreme Court from 200 to 100 and the mechanism for reducing the current court composition;
- reduction of the salary of a Supreme Court judge;
- abolition of the quota principle for the formation of the HQCJ;
- the activities of the Integrity and Ethics Commission (in particular, bringing to disciplinary liability of Supreme Court judges and the dismissal of the HCJ members);
- changes to the disciplinary procedure.
On January 16, the Constitutional Court began considering the appeal, however, due to the fact that the Parliament’s representative was not ready for a session, after hearing some of the other participants in the proceedings, a break was announced until 21 January.
2. CPLR assessment
At the request of the Reporting Judge in this case, the CPLR gave its opinion on the issues raised in the constitutional appeal. According to the Center, the following provisions are unconstitutional:
- reduction of the maximum number of Supreme Court judges and the mechanism established by law, unless the legitimate purpose of the Supreme Court's reorganization is proven and the constitutional procedure of this reorganization is adhered to;
- shortening the period of providing clarifications from judges or prosecutors regarding court cases in disciplinary proceedings;
- inability to postpone at least the first meeting in a disciplinary case if there is convincing information about the validity of the reasons for the judge, the complainant or their representatives not being present at the meeting.
In the opinion of the Center, the other provisions appealed by the Supreme Court are in conformity with the Constitution.
On January 14, the High Council of Justice (HCJ) approved the Methodology for assessing the professional experience of candidates for the post of the HQCJ member. The maximum number of scores that a candidate can receive under this criterion is 10, of which 5 scores are awarded for professional experience, and the rest – for participation in law-drafting work, the availability of scientific publications, a scientific degree (academic title) and professional achievements. In addition, the selection commission may rate the candidate a score of 0 if reliable information is received about his/her non-compliance with the law or unethical/unfair behavior.
In total, the candidate to the HQCJ will be able to get 100 scores in the competition.
2. CPLR assessment
The approved Methodology establishes discriminatory conditions for candidates who are not judges. For example, candidates with more than 10 years of judicial experience may receive 3 points, while the maximum number of points for a lawyer’s, scientific or teaching activity is 2 (if it continues for more than 5 years). Thus, the HCJ seeks to further secure the privilege for judges during the competitive selection to the HQCJ. This intention is also apparent from the Regulations on the Competitive Selection (see detailed analysis).
In addition, the HCJ has extremely narrowed the assessment boundaries for the Selection Commission members and in the Methodology, it has replaced the qualitative evaluation of the components of the criterion with a quantitative one (although paragraph 2.3 states that qualitative indicators are of primary importance). Based on the content of item 3.1 of the Methodology, the formal compliance of the candidate with a certain component of a criterion indicates that he/she receives the maximum number of scores for this component. The quality of the candidate's professional experience is hardly taken into account.
According to the CPLR experts, by introducing such regulation, the HCJ seeks to influence the outcome of the selection of new members of the HQCJ and completely offset the role of international experts in this procedure. Under these conditions, international organizations may refuse to delegate experts to the selection commission. Therefore, it is important to organize the competition process without any involvement of the HCJ.
On January 16, amendments to the Criminal Code and the Criminal Enforcement Code of Ukraine and the Law of Ukraine “On Administrative Supervision of Persons Released from Imprisonment” entered into force (Law of Ukraine No. 409-IX), which provides for:
1) implementation of the Unified Registry of Persons Convicted of Crimes against Sexual Freedom and Sexual Inviolability of a Child. The Ministry of Justice of Ukraine keeps the registry. The registry users are heads of prosecutors' offices and pre-trial investigation bodies, prosecutors, investigators and other authorized persons of the National Police of Ukraine and the State Bureau of Investigation. In addition, the leadership of pedagogical institutions of different levels has the right to obtain information from the registry on request in the case of hiring a person who will work with young children;
2) strengthening of criminal responsibility for crimes committed against sexual freedom and sexual inviolability of a child (amendments to Articles 152, 153 of the Criminal Code of Ukraine) up to life imprisonment in case of recurrence;
3) strengthening the rules for administrative supervision of such persons. In particular, introduction of the obligation to notify the National Police of the change of their place of residence or stay for another three or six years after the conviction has been withdrawn or expunged.
2. CPLR assessment
The adopted legislative changes are negative, as they can lead to a deterioration of the situation with crimes against sexual freedom of children and violations of personal data protection.
First, strengthening criminal responsibility by simply increasing the sanction is the wrong path that the vast majority of legislative initiatives follow. If the problems are the inevitability of punishment, no increase in the size of the sanction will lead to the desired result. Criminal law is not a universal tool that can "remedy any social problem". The problem of recurrence of such crimes is associated with poor supervision, lack of ability to re-socialize the sentencing of people with pedophilia (as of now, this does not exclude impunity), etc.
Second, equating premeditated murder with aggravated circumstances (sanction – life imprisonment) to repeated sexual assault of a child is a disproportionate punishment. Establishment of the same punishment for murder and rape and sexual assault combined with it can critically increase the number of murders of children during or immediately after committing these crimes. Obviously, if there is a threat of equal punishment, it will affect the behavior of the offender, and there will be no one to testify in the court.
Third, borrowing the idea of the Unified Registry from the American so-called "Megan Law" (1994) is good, but its implementation can have great threats to the protection of personal data. The 'semi-closed' registry model creates a wide field for the misuse and leakage of personal data. The number of law enforcement officials is extremely large (more than ten thousand people), and those receiving information on request (heads of pedagogical institutions) are counted in the hundreds of thousands. Moreover, the period of storage of such data is not set, and also goes beyond the expungement or removal of a criminal record, which does not correspond to the name of the Registry.
In summary, we agree that there is a problem in society, but it needs to be addressed not only by criminal, but also by other instruments. At the same time, the risks of imbalanced sanctions and an unsecured registry outweigh the benefits of the approved changes to the legislation.
On December 27, 2019, the Constitutional Court of Ukraine issued a negative opinion in the case on the conformity of the draft law amending Article 81 of the Constitution of Ukraine (concerning additional grounds for early termination of powers of the People's Deputy of Ukraine) (Reg. No. 1027) with the requirements of Articles 157 and 158 of the Constitution of Ukraine. This is the third draft law introduced by the President of Ukraine to amend the Constitution of Ukraine (out of seven draft laws that were initiated on August 29, 2019), which does not meet the requirements of part 1 of Article 157 of the Constitution of Ukraine. Although the amendments proposed in the draft law are not aimed at eliminating independence or violating the territorial integrity of Ukraine, the CCU draws attention to the following:
- in order to strengthen parliamentary discipline, the draft law introduces many judgmental concepts that do not meet the criteria of clarity, unambiguity and predictability, as required by legal certainty concept as a component of the rule of law principle. In this regard, such concepts may become sensitive in terms of their discretionary (and in some cases arbitrary) application by the parliamentary majority for its own benefit and to the detriment of the minority already at the level of ordinary laws;
- automatic loss of the mandate of the People's Deputy of Ukraine without the decision of the Verkhovna Rada of Ukraine on the basis of establishing by the court only the very fact of any "non-personal vote", regardless the nature of act(s) of the People’s Deputy of Ukraine, circumstances under which this fact occurred, without establishing the nature of personal participation of the People's Deputy of Ukraine and without taking into account the fact that mitigating circumstances may arise regarding the behavior of the People's Deputy of Ukraine – will not meet the requirement of consistency, however, any restrictions of human and citizen's rights and freedoms are only permissible, provided that such restrictions are consistent (proportionate);
- PACE and the Venice Commission have repeatedly expressed their concerns about the actual preservation of the imperative mandate in Ukraine, which contradicts the European standards of the representative mandate and violates the independence of the deputies as representatives of the people: “There is no imperative mandate in any European country except Ukraine, and the requirement that prevents a deputy from free leaving any faction is a clear and blatant violation of the European tradition of a free parliamentary mandate”;
- since the Constitutional Court came to the conclusion that the proposed amendments to the Constitution of Ukraine, which provide for additional grounds for termination of the powers of the People's Deputy of Ukraine, do not meet the requirements of part 1 of Article 157 of the Constitution of Ukraine, there is no need to consider the issues of the procedure for early termination of powers of the People's Deputy of Ukraine under the Supreme Court's decision.
2. CPLR proposal
According to the Constitution of Ukraine, the absence of the Constitutional Court's opinion on the conformity of the draft law on amending the Constitution of Ukraine with the provisions of Articles 157, 158 of the Constitution of Ukraine makes it impossible to further consider and approve this draft law by the Verkhovna Rada. We recommend to the President of Ukraine as a subject of the right of the constitutional initiative, who introduced this draft law, to withdraw it.
In order to avoid cases of the President of Ukraine initiating constitutional changes that are not consistent with the constitutional principles of the rule of law and separation of powers, the principles of a democratic state with the rule of law, and, if implemented, would threaten the rights and freedoms of the individual and citizen, any amendments to the Constitution should be prepared in an open mode with a thorough expert discussion.
On January 2, a people’s deputy from the party "Servant of the People" M. Buzhansky, who belongs to the so-called “Kolomoisky Group”, according to the Movement "Chesno", registered the draft law “On Amending Certain Laws of Ukraine (on ensuring the functioning of the judicial system in Ukraine in accordance with international standards of Judiciary)” (hereinafter – the draft law).
The draft law proposes:
- to exclude the legislative provision on the maximum number of judges of the Supreme Court and delegate the decision-making authority on this matter to the High Council of Justice (hereinafter – HCJ) and the Head of the State Judicial Administration;
- change the principle of formation of the High Qualifications Commission of Judges (hereinafter – the HQCJ) (7 members will be selected by the judges and 5 will be nominated by the HCJ based on the results of the competitive selection) and a Selection Commission to select its members (instead of members of the Council of Judges and international experts, a Selection Commission will include the representatives of the Council of Judges, the Ombudsman, the National Academy of Law, the Bar Council and the Public Council of Integrity);
- to change the composition of the Integrity and Ethics Commission by excluding international experts from its membership and substantially reducing its authority (deprive it of its right to review candidates for HCJ membership and to conduct disciplinary proceedings against Supreme Court judges). The procedure for dismissal of a HCJ member upon submission of a Commission is also significantly complicated (a qualified majority of HCJ members will be required for dismissal);
- to exclude judges and candidates to judge’s position from among the persons who are subject to examination under the Law of Ukraine “On Lustration”;
- increase the timeframe for disciplinary proceedings against judges;
- to bring back the excessive salaries of Supreme Court judges, members of the HCJ and the HQCJ, which existed before the 2019 changes.
2. CPLR assessment
According to CPLR experts, the draft law in essence is a “counter-reform” not only to the legislative changes made in 2016 and initiated by President P. Poroshenko, but also to the changes initiated in 2019 by President V. Zelensky. Most of the provisions of the draft law are aimed at maintaining stable corruption links in the judicial system and strengthening the mechanisms of dependence of judges.
The author of the draft law proposes to completely remove international experts from the procedures of selection and examination of the integrity of the members of the HQCJ and the HCJ. The legislative changes initiated in 2019 by President V. Zelensky envisaged the involvement of international experts in the selection of members of the HQCJ, the evaluation of the integrity of candidates/members of the HCJ and the HQCJ, which should guarantee the transparency and fairness of the respective procedures. Instead, the author of the draft law proposes to replace international experts with the subjects (judges, scientists, lawyers, ombudsmen) whose activities have led to the “conservation” of negative phenomena in the judiciary and forced President V. Zelensky to initiate a new judicial reform in 2019.
The author of the draft law proposes to return the quota principle of formation of the HQCJ, under which the majority (7) members of the Commission will be elected by judges, and 5 – will be appointed by the HCJ based on the results of the competitive selection. This formation principle of the HQCJ has already discredited itself in previous years, as it has become one of the obstacles to reducing corruption in the judicial system.
The draft law will negate the role of the Integrity and Ethics Commission. The purpose of this Commission is to ensure the transparency and accountability of members of the HCJ and the HQCJ, as well as to verify the integrity of the candidates to the HCJ. According to the draft law, the commission will not conduct a check on the integrity of candidates to the HCJ. A HCJ member may be dismissed on the basis of a Commission’s submission by a qualified majority of the HCJ members, and not at a joint meeting of the HCJ with the Commission as it is provided now. This will make it impossible for the HCJ to be cleared of members who do not meet the integrity requirements.
The author of the draft law proposes to exclude judges from among the persons covered by the Law of Ukraine “On Lustration”. In fact, this will allow lustrated officials to become judges in any level of court, which is completely contrary to the logic of the lustration procedure. The draft law also returns to office judge V. Tatkov (the head of the Supreme Economic Court of the time of V. Yanukovych) – the only judge dismissed under the Law "On Lustration" for violating incompatibility requirements.
The author of the draft law proposes to return the salary levels of Supreme Court judges, HCJ and HQCJ members (roughly equivalent to $ 10,000 per month) that existed before the 2019 changes. Adopting this change will restore the problem of the huge pay gap between judges of the Supreme Court and other courts, as well as unreasonably high remuneration for members of the HQCJ and the HCJ.