What Is the Current Situation With Judicial Reform in Ukraine?

December 16, 2022
UkraineWorld spoke to Mykhailo Zhernakov, chair of the board of the DEJURE Foundation.
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Key points – in our brief, #UkraineWorldAnalysis:

1. On the history of judicial reform in Ukraine.

  • The war has greatly changed everything. First of all, we are already on the fourth iteration of Ukraine`s judicial reform. Some parts of it were successful, like the Anti-Corruption Court, but the rest has been less so. This is mostly because earlier judicial self-governance, which exists in other European countries, was introduced. This is a good recipe for preserving the system's ability to preserve itself, but a bad one when the system needs to be changed.
  • We need to reboot key institutional governance bodies such as the High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HCJ). The political procedure for selecting judges is also a symptomatic story of the Constitutional Court. That was pointed out by the Venice Commission in previous conclusions, in particular, to President Zelenskyy's request after the shameful decision of the Constitutional Court to dismantle electronic declaration requirements for Ukrainian government officials in 2020. 
  • In order to avoid politicization of the selection process, it is necessary to introduce a procedure that would include independent international experts and representatives of civil society. Almost two years have passed, yet the reform of the Constitutional Court did not proceed until it was identified as one of Ukraine's top reform priorities when the country received official EU candidate nation status in the summer of 2022.
  • On December 13, a bill was passed in the Rada which was disguised as a European integration law, but which in reality creates the political power to make the Constitutional Court politically dependent.
  • That was made possible because the Venice Commission reversed its previous recommendations. In its latest opinion, the Commission said that public participation in the selection process was not welcome, and that despite the fact that the participation of government officials instead of the NGOs in the selection panel risked further politicization, it was acceptable given Ukraine's "special circumstances".
  • They also said that the decisions of this selection commission should not be binding, letting the political bodies themselves determine whom to appoint, which is categorically different from the previous conclusions of the Venice Commission.
  • The draft law now provides for a six-member Advisory Group of Experts, three of whom are political appointees of the President, the Rada, and the Congress of Judges. This means that politically impartial candidates will no longer pass this filter. This threatens a deadlock (as is noted by the Venice Commission) or a reality in which only government-friendly candidates can be appointed to the Constitutional Court. 
  • This would mean political control over the Constitutional Court, since five judges of the Constitutional Court are already under the control of the political authorities, and there are currently five vacancies. The politically-controlled majority (10 out of 18) in the Constitutional Court threatens unconstitutional actions, the violation of people's rights, the demolition of reforms, and undue concentration of power.

2. On the role of the Venice Commission

  • The Venice Commission has either sought to help Ukraine during the war (by mentioning Ukraine`s 'special conditions'), or apparently has someone inside who is sympathetic to anti-reform forces in the country. Either way, these changes will not benefit the reform process because of all of the risks described and the lack of an effective procedure to recall judges, whose tenure lasts 9 years. We may face a situation where EU integration will not happen at all. The EU already has examples of dependent Constitutional Courts in other Central and Eastern European countries, and they might just not want another member with heavily politicized judicial institutions.
  • Unfortunately, there was no reaction from either the European Union or the G7 to the adoption of this law which clearly goes against their recommendations and public statements. Basically, both the Venice Commission and the EU, as main stakeholders of the process, have allowed things to happen that in no way make Ukraine more democratic or resilient.

3. On the dissolution of the District Administrative Court of Kyiv

  • The dissolution of the odious District Administrative Court of Kyiv (the DACK), however, was a very important step benefitting the rule of law. It put an end to the era of hegemony of what we call the corrupt 'judicial mafia,' whose members presided over the DACK, over Ukraine's legal system. 
  • It means that the former judges of the court will be forced to go through vetting procedures, and a new court, the Kyiv City District Administrative Court, will be created in its stead. This court must be created no earlier than the two bodies responsible for forming it -- the High Qualification Commission of Judges (HQCJ) and the High Council of Justice (HCJ) -- are reformed. 
  • The judicial community has a decisive vote in the creation of the HCJ, and must appoint 8 newly-selected members during a congress of judges that will happen mid-January. It is extremely important they do so, as the creation of the new HCJ is not only paramount to the continuation of Ukraine's judicial reform, but also to successful implementation of the country's EU integration agenda. Should the judges fail to do so and inhibit the progress of judicial reform, it will become obvious that even more drastic change is needed to establish the rule of law in Ukraine and guarantee its democratic European future.
DARIA SYNHAIEVSKA, ANALYST AND JOURNALIST AT UKRAINEWORLD
Mykhailo Zhernakov, chair of the board of the DEJURE Foundation

This material was prepared with financial support from the International Renaissance Foundation.