The HCJ reform: the international experts will have the casting vote, but the reform will fail

On June 30, the Legal Committee prepared the draft law 5068 on the reform of the High Council of Justice (HCJ) for the second reading. The draft law grants international experts a casting vote in the Ethics Council. However, some provisions of the draft law may completely eliminate the impact of the Ethics Council (EC), which jeopardizes the real judicial reform in Ukraine.

In particular, it concerns the procedure of dismissal of current members of the HCJ, whose integrity is recognized as low by the EC. The draft law stipulates that the decision to dismiss a member of the HCJ after the opinion of the Ethics Council is made by the relevant appointment body – the Congress of Judges, the Congress of Attorneys, the Conference of Prosecutors or the Congress of Law Schools Representatives. The votes of a majority of the relevant Congress delegates are required for the dismissal of the HCJ member. Under this model, the relevant Congress can save a member of the HCJ, completely ignoring the opinion of the EC. To offset such a risk, it is crucial to adopt amendment № 730, which provides for the reverse procedure: congressional delegates will have to cast the majority of votes for retaining the HCJ member in office despite the opinion of the Ethics Council. This will significantly increase the chances of real HCJ reform. Without amendment № 730, the reform of the HCJ will fail.

In addition, the draft law provides that the decision of the Ethics Council can be appealed to the Supreme Court on any grounds. This means that the Administrative Court of Cassation within the Supreme Court will be able to assess not only the legality of the procedure but also the validity of the opinions of the Ethics Council, as well as cancel the decision, block the dismissal of current HCJ members and appoint new ones. Amendment № 719, which was rejected by the Committee, can help offset this risk.

Thus, without amendments № 730 and № 719, draft law 5068 will not reform the HCJ. Moreover, despite the casting vote of international experts granted by the draft law 3711-д on the relaunch of the High Qualification Commission of Judges (HQCJ), the integrity of HQCJ members will be doubted, as the final decision on its renewed composition will be decided by the unreformed HCJ.

The experts of the DEJURE Foundation were not allowed to attend the Committee meeting for the second time despite a written request. No other expert NGO was involved in the work of the Committee. Thus, the Legal Committee exercises the worst practices of secrecy.

To recap, the HCJ reform is one of the requirements of the Memorandum of Ukraine with the IMF.