Ukraine takes big step towards judicial reform

Ukraine took a big step towards judicial reform on July 13 when lawmakers passed laws that lay a credible foundation for restarting the country’s deeply compromised legal system. (TNS / ABACA via Reuters Connect)

Ukraine took a potential historic step towards judicial reform in mid-July when lawmakers passed two laws that are expected to lay a credible foundation for restarting the country’s legal system. On July 13, the Ukrainian parliament backed legislation to revive the deeply compromised High Commission for the Qualification of Judges (HQCJ) and High Council of Justice (HCJ). Above all, independent international experts will participate in the planned future selection process.

For the past seven years, Ukraine’s flawed justice system has been the Achilles heel of the country’s reform efforts. Since the Euromaidan revolution of 2014, Ukraine has made progress in various areas of reform, including public procurement, corporate governance, banking sector transparency and the fight against corruption. However, Ukraine’s dysfunctional justice system has suspended this whole reform process like a sword of Damocles, threatening to reverse anti-corruption gains and undermine Ukraine’s Euro-Atlantic aspirations.

In addition to hampering the country’s reform efforts, this has resulted in significant economic costs. Ukraine’s inability to ensure a true rule of law has held back GDP growth and scares away potential international investors who might otherwise have entered the Ukrainian market.

The Ukrainian judicial system is governed by two organs. The HCJ is the main body of the judicial governance system of Ukraine. It fully controls the appointment and dismissal of Ukrainian judges. The main responsibilities include protecting judges against unlawful interference from other agencies and holding judges accountable for professional misconduct, including granting permission to institute criminal proceedings against individual judges.

The HQCJ is often referred to as the Human Resources Department of Ukrainian Justice. He is responsible for the selection of future judges and current former judges who do not meet the criteria of professionalism and integrity during the reappraisal processes.

These two bodies have long been considered to be in the grip of existing interest groups within the justice system. Instead of cleaning the justice system of corrupt judges, they are accused of covering them up and successfully blocking all previous attempts to reform the Ukrainian justice system.

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Between 2014 and 2019, the HCJ and the HQCJ are accused of obtaining the appointment of politically controlled and dependent judges to the new Supreme Court of Ukraine. Critics also claim that the two bodies did not dismiss the judges who persecuted protesters during the Euromaidan revolution and did not act against judges caught making false statements in their asset declarations. Meanwhile, the HCJ has been involved in efforts to cover up corrupt judges and silence whistleblowers using disciplinary sanctions.

By 2019, it had become painfully clear that reforming the judiciary without changing the approach to the composition of these vital bodies of judicial governance was impossible. The idea of ​​a new approach was supported by reformers in government, experts from civil society and Ukraine’s international partners. During his successful presidential election campaign in spring 2019, Volodymyr Zelenskyy also pledged comprehensive reform of judicial governance.

Despite the fact that the recently adopted approach goes beyond established European recommendations on the judicial system, the Venice Commission of the Council of Europe has positively assessed the proposed international commitment in cleaning up the judicial governance bodies of the ‘Ukraine.

These reforms are in line with the expectations of the International Monetary Fund, which has made them one of the key conditionalities of their current program with Ukraine. The restart is also listed in the EU-Ukraine macro-financial assistance agreement, while the G7 Ambassador Reform Support Group included it in their roadmap for strengthening the rule of law in Ukraine.

After a number of false starts in judicial reform, the engagement of foreign professionals in the selection of members of Ukraine’s judicial governance bodies has led many to take the recently adopted reforms particularly seriously. A similar approach has already been used during the competition to recruit members of the High Anti-Corruption Court of Ukraine and has proven to be effective.

For the HQCJ, three foreign experts will be part of a six-member jury, which will shortlist 32 candidates for 16 HQCJ offices. For the CSJ, three foreign experts will be part of a six-member Ethics Council, which will assess the candidates of the CSJ on the basis of their integrity and shortlist the best candidates. The Ethics Council will also carry out an integrity check of the current members of the CSJ and ask the nominating bodies to dismiss or reconfirm the members of the CSJ in question.

We are now in the early stages of what promises to be one of the most decisive battles for Ukraine’s historic transformation. The new laws adopted in July are only the first step in a necessarily long and complex road towards establishing a true rule of law in Ukraine.

Much remains to be done to fully and transparently implement the laws adopted. Far too often in the history of Ukrainian reform, legislation that looks good on paper has fallen flat when it comes to implementation. Moreover, it is also important to note that the laws themselves are not ideal and contain flaws that opponents of reform are likely to seek to exploit.

Despite these concerns, there are good reasons to be optimistic. The recent passage of these new laws is arguably the closest Ukraine has taken to true judicial reform since the country’s gaining independence in 1991. As Ukrainians prepare to celebrate their thirtieth anniversary independence on August 24, this reform progress also deserves to be highlighted.

Olena Halushka is a member of the Board of Directors of AntAC. Tetiana Shevchuk is legal counsel at AntAC.

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The opinions expressed in UkraineAlert are solely those of the authors and do not necessarily reflect the views of the Atlantic Council, its staff or its supporters.

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UkraineAlert is a comprehensive online publication that regularly provides information and analysis on the development of politics, economy, civil society and culture in Ukraine.

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the Eurasia Center mission is to strengthen transatlantic cooperation by promoting stability, democratic values ​​and prosperity in Eurasia, from Eastern Europe and Turkey in the West to the Caucasus, Russia and Central Asia in the East .

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