GENERICO.ruPoliticsZelensky against the judiciary: how the confrontation will end

Zelensky against the judiciary: how the confrontation will end

How is the judicial reform progressing in Ukraine.

The Verkhovna Rada this summer, not without problems, but adopted laws on a new judicial reform. Its special importance is constantly being emphasized by international lenders and Western partners. But the transformation of the Ukrainian justice system was already in tow at the very start. Who slowed down the presidential reform and what will happen to it next, reports with reference to.

Judicial reform from Zelensky contains two main points – the launch of the High Qualifications Commission of Judges (VKKS) and the “cleansing” of the High Council of Justice (SCJ). These are the two main bodies in the Ukrainian justice system.

The first one selects judges and conducts their recertification (qualification assessment). The second one deals with the appointment, dismissal and punishment of the “servants of Themis”. He also manages the finances of the judicial system, evaluates specialized bills and forms the entire network of courts in the country. Whoever controls these two bodies will actually be able to control the fate of the entire judicial system of Ukraine.

Every political force, coming to power, tried to reform it. Zelensky's team was no exception. But the Office of the President and his Servant of the People party are claiming a kind of record in this area – in 2.5 years in power, they are trying to launch the second version of the judicial reform.

Both attempts, at the moment, cannot be called successful. At the same time, history shows that it is the reform of the justice sector that meets the most fierce resistance within the country.

Casting vote

Having come to power in 2019, Zelensky's team struck the main blow of the “turbo-reform” primarily on the organs of the justice system – the SCJ and the VKKS. The law necessary for this was developed at the President's Office and promptly adopted by the Verkhovna Rada in October 2019.

The result of that reform was the termination of the work of the VKKS. The new composition of the commission had to be recruited through a competition with the involvement of foreign experts, which never took place. The High Council of Justice, although it continued its work, had to undergo “cleansing” by a special commission.

This ethical commission would include three representatives from the Council and three foreign experts. The principle of voting in the commission assumed that decisions would be made by a simple majority, the decisive role of international ones could only be played in case of parity of votes.

That reform stalled at the start. International organizations, dissatisfied that the government team ignored their wishes when preparing the bill, did not send their delegates to Ukraine. And without foreigners, neither the restart of the VKKS, nor the “cleansing” of the VSP could begin. Moreover, already in March 2020, the Constitutional Court completely “buried” the presidential law, declaring its key provisions unconstitutional, including the creation of the Ethics Commission.

The unsuccessful reform led to the fact that the situation in the justice system began to deteriorate rapidly. The shortage of a third of judges, the lack of funding for the court apparatus, the low level of citizens' confidence in the domestic “Themis” and the persistent wishes of Western partners left no other choice for the Ukrainian authorities but to sit down to write a new draft of changes.

Zelensky's team prepared new bills on reforming the judiciary in early 2021. Their idea remained largely the same – to recruit “respectable” members of the High Qualification Commission of Judges and the High Council of Justice with the help of competition commissions.

But now both commissions will consist entirely of Ukrainian lawyers: three representatives from the Council of Judges and one each from the Council of Prosecutors, the Council of Lawyers and the National Academy of Legal Sciences. The selectors will be able to make a decision by a simple majority of votes.

However, there is one caveat. The first composition of these commissions and the voting procedure will be completely different – half of the seats will be occupied by “foreign experts”, and their vote will be decisive. For a successful vote for the new composition of the High Qualification Commission of Judges, it is necessary to obtain at least four votes of the members of the competition commission: two votes of “foreigners” and two votes of “Ukrainians”.

But in the selection and verification of the integrity of the members of the High Council of Justice, the voting scheme will be even more complicated. For a positive result, a majority of votes from the present members of the Ethics Council is sufficient, but among them there must be two from “foreigners”. It turns out that, in theory, only representatives from international organizations can make a decision to dismiss / dismiss one or another member of the SCJ, without taking into account the opinion of the Ukrainian “servants of Themis”.

It was this “imbalance” that stirred up the Ukrainian justice system. The Council of Judges on September 13 refused to delegate its representatives to the Ethics Council. At the same time, the judicial self-government body sent its representatives to the competition commission for the selection of VKKS, where voting is more or less parity.

It should be noted that international organizations have already delegated their experts to the competition commissions. Among them, for example, ex-Estonian Prosecutor General Lovely Perling, former judges from the United States (Stephen Markman, Rosemary Burkett, Robert Cordy), England (Anthony Hooper, David Kelvert-Smith), Germany (Tilman Hoppe), Canada (Ted Zazhechny), Slovenia (Aleš Zalar) and Guatemala (Claudia Escobar).

Ukrainian lawyers, according to the head of the Council of Judges Bohdan Monich, are not eager to go to the body, where they will simply be “extras.” He insists that the law needs to change the voting procedure and make the voice of domestic delegates significant.

“Not only do we dislike this, but the candidates themselves dislike it. What is the motive for him (a candidate from the Council of Judges – ed.) To go to work in a body where he may not be heard at all? That is, he will be there just a “wedding general” – explained Monich in an interview with the publication.

The head of the parliamentary committee on justice, Andriy Kostin (Servant of the People), dismisses claims that the proposed voting formula puts the Ukrainian judicial system in the hands of foreigners.

“All this talk about a threat to sovereignty is 100% manipulation. Because on all these issues and with the election of members of the VKKS and with checks of members of the SCJ, the state authority of Ukraine will always make the final decision, ”he said.

Minister of Justice Denis Malyuska is in solidarity with his colleague from the pro-government team. In his opinion, foreigners in the Ethics Council will simply guarantee its independence and objectivity.

“Nobody says that foreigners will act in a coordinated way among themselves. Here, rather, we can talk about their independence ”- the representative of the Cabinet of Ministers is convinced.

Roman Kuybida, a former member of the Public Integrity Council, says that from his own experience he was faced with the fact that many competition commissions had “pocket delegates”. But it was not just foreign organizations that they represented, but the Ukrainian authorities.

“Even the thought would not have occurred to international representatives to gather somewhere separately and hide from Ukrainian members. This is all absolutely sucked out of the thumb. On the contrary, I admit that Ukrainian members could do this, ”the expert is sure.

Way out

The demarche of the Council of Judges did not go unnoticed by the highest authorities. By the evening of September 13, the President's Office issued an angry statement on behalf of the head of state.

“I will not allow blocking the main reform of the country, which I promised the Ukrainians and which I initiated. Every illegal action aimed at blocking judicial reform will receive an immediate assessment and rebuff, “Zelensky said and summoned the Head of the Council of Judges, the Chairman of the Supreme Court, representatives of the Verkhovna Rada and the G7 ambassadors to the Banking Head.

Their meeting was by no means in a constructive atmosphere – “each of the participants remained unconvinced.” The joint statement following the meeting was also not specific. The parties noted the “decisive importance” of the presidential judicial reform for the future of the country and expressed “concern” about the actions of the Council of Judges.

However, even this version of the statement was refused to be signed by both the G-7 ambassadors and representatives of the Ukrainian justice system. As the head of the Supreme Court Valentina Danishevskaya explained, a representative of the judiciary is not entitled to sign “political statements”.

She also admitted that “the discussion, unfortunately, did not work out at this event.” At the same time, Danishevskaya managed to hold a separate meeting with the head of the OP, Andrei Yermak, which, according to her, was “more constructive.”

The meetings in the presidential office provided judicial reform # 2 with another chance not to fail completely.

So, from September 21, the Council of Judges announced the re-selection of those wishing to become delegates to the Ethical Council, and the Supreme Court postponed the plenum, at which it planned to declare the unconstitutionality of the presidential law. However, Bogdan Monich is not ready to argue that the re-selection of delegates to the Ethics Council will be successful.

“I cannot guarantee it 100%. Because if we select members of the Ethics Council, then this should be a person who, including me, should like every member of the Council of Judges. That is, this (the selection of members of the Ethics Council, – ed.) Will depend on the quality of those candidates who apply, ”he said.

The head of the legal committee of the Verkhovna Rada, Andrei Kostin (Servant of the People), hopes that the Council of Judges will nevertheless fulfill its function and unblock the reform. Otherwise, “certain measures” may be taken. According to him, the judicial community cannot block the law just because he does not like it.

“Judges cannot have their own interest in who will be a member of the High Council of Justice or the High Qualification Commission of Judges. They cannot have their own corporate interest, their task is simply to consider cases and make decisions, ”he stressed.

The head of the committee did not say what exactly “measures” could be taken. At the same time, the source of the publication in the mono-majority noted that the possibility of making changes to the legislation and simply depriving the “obstinate” Council of Judges of the right to form an Ethical Council is being considered.

Kostin also warned the Supreme Court that it will convene a plenary session on October 8 to consider the constitutionality of the judicial reform. If the Supreme Court nevertheless sends it to the Constitutional Court, it will show its “political position”, the deputy is convinced.

“In my opinion, it will be more of a political position than a position behind which there are legal arguments. This is my opinion, and I do not refuse it. The people will appreciate this kind of action, if any. I still hope that the Supreme Court will not be led by the SCJ and will concentrate on doing its direct activity – to consider cases, ”said the head of the committee.

He admits that the authorities hope to unblock the reform in the near future. Despite the fact that the deadlines stipulated by the law have already been missed, there is still a chance to launch the transformation of Ukrainian justice.

* * *

The judicial system of Ukraine is entering another zone of turbulence and confrontation between the branches of government. Ill-considered steps both on the part of the legislator and on the part of the “servants of Themis” themselves led to the fact that the courts in the country may completely stop in the near future.

One body of justice has already stopped working for two years, and the second is teetering on the brink of a quorum. District courts in the regions of the country are closing, and the shortage of their employees is growing exponentially. In such conditions, a radical reform may be in the role of a surgeon's knife, who is capable of both saving the life of a seriously ill patient and finally ruining it.

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