Strengths and weaknesses of the rules of procedure of the Ethics Council

The Ethics Council, which will reform the High Council of Justice, has approved and published its rules of procedure. Experts of the DEJURE Foundation analyzed this document and its strengths and weaknesses.

First of all, the rules of procedure are written in such a way that there is parity between Ukrainian judges and international experts.

At the same time, the independent powers of the Head of the Ethics Council – Lev Kyshakevych, the judge of the Supreme Court – are limited to presiding over meetings. He has to agree on the rest with his deputy, the retired British judge Anthony Hooper.

Weaknesses of the rules of procedure of the Ethics Council:

• The Ethics Council will first check the integrity of the candidates for the High Council of Justice. Only after the end of the competition will they evaluate the current members of the HCJ. Nevertheless, the evaluation process of current HCJ members should begin no later than February 8, 2022.

The DEJURE Foundation considers this decision a mistake. It will not prevent the HCJ from becoming powerless – not being able to make decisions due to a lack of members with authority – and will only delay this moment.

There is a risk that this delay will be deliberate – to slow down the process so much that the Ethics Council will not be able to meet the six-month deadline for vetting current HCJ members.

• The document sets quorum requirements – meetings of the Ethics Council will be considered valid if at least four members are present.

In fact, a meeting of the Ethics Council cannot begin if at least one Ukrainian judge is not present. This poses a potential threat and allows the judges to block the HCJ reform.

Strengths of the rules of procedure:

• The schedule of meetings of the Ethics Council is determined by the Head, but after agreeing on the schedule with the Deputy.
• Two rapporteurs will be assigned for each candidate and current HCJ member – a Ukrainian judge and an international expert.
• These rapporteurs will be appointed by the Head of the Ethics Council after consultation with his Deputy.
• The Deputy Head of the Ethics Council has the authority to convene meetings of the Ethics Council.
• The Ethics Council has the opportunity to digress from the requirements of the rules of procedure on the basis of a separate ad hoc decision. For example, to amend the rules of procedure.

In this case, the provision that a quorum requires four members of the Ethics Council may be disregarded.

In fact, if Ukrainian judges decide to block the reform of the HCJ and do not attend the meetings of the Ethics Council, as has already happened with the competition for the Head of the Specialized Anti-Corruption Prosecutor’s Office, the rules of procedure allow to change the process and hold meetings without Ukrainian judges.

As we can see, all the arguments about the external influence and formal participation of Ukrainian judges in the Ethics Council, which were used by the Council of Judges and the HCJ, were dispelled by the rules of procedure.

The rules of procedure of the Ethics Council can be found here.