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Zelenskiy’s team is trying to carry out judicial reform (photo: Vitaliy Nosach / RBC-Ukraine)
President Volodymyr Zelenskyy wants to speed up the reform of the judicial system. At the same time, the constitutional crisis continues in the country and the Rada is unstable. But the breach of Ukraine’s promises in the field of justice, among other things, makes it difficult to receive the IMF tranche. As head of state, he intends to solve problems in the judicial system, on the RBC-Ukraine material.
Zelenskiy’s team’s first attempt to implement its vision of judicial reform failed earlier this year. Although at first it seemed that this adventure is doomed to success.
In the fall of 2019, the parliament in “turbo mode” adopted a special law for this. Its objective is to radically reformat two key judicial authorities: the Commission of Highly Qualified Judges (HQCJ) and the Higher Council of Justice (HJJ).
These institutions are involved in the recruitment, dismissal and sanction of judges. It was decided to reorganize them and clean them of “dishonest elements”. The presidential bill also called for the reduction by half of the composition of the new Supreme Court.
Virtually none of these points have been implemented. The attacks on the Supreme Court alienated the Western partners who helped shape it, and attempts to reform the SCJ were effectively destroyed by the Constitutional Court in March 2020.
But the work of the VKKS in November 2019 actually stopped. This body is responsible for the hiring and certification of judges. As a result, Ukraine has a huge deficit of “servants of Themis”: more than 25% of the seats are empty.
Additionally, problems with funding the court system have meant that some courts no longer have sufficient funds to send mail and purchase stamps.
The complex situation, as well as the obligations to the IMF, forced the head of state to pay close attention to this area. In early November, Zelenskiy updated the composition of the Law Reform Commission and instructed it to work to “improve” the judicial system.
“Citizens of Ukraine, domestic and foreign investors, our international partners, we must all achieve a” healthy “judicial system – independent, consistent, objective,” he stressed.
Commission of Discord
The authorities classify the approval of the presidential bill # 3711 as the first task that must be resolved urgently. His key position is the launch of VKKS.
Last year’s version of the judicial reform provided that this commission should be formed through an open competition of representatives of the Ukrainian judicial system and international experts. On the scheduled date, the Superior Council of Justice, which organized the contest, announced that it had not received a single “international affairs” nomination.
To prevent this situation from recurring, bill n. 3711 proposes to broaden the circle of foreign organizations and, most importantly, to introduce a “wick”. If the Western partners again do not present their representatives, then their role will be carried out by the Ombudsman Lyudmila Denisova.
It is this provision that is most criticized by opponents of the bill in the Ukrainian parliament and the expert community. In her opinion, Denisova is a politically dependent figure and will not be able to delegate honest and respectable candidates to the competition committee.
The SGP disagrees with this and advocates for the urgent adoption of the document. “This fuse is capable, in my opinion, to level the situation a bit and avoid the risks of blocking the creation of VKKS,” the head of the Justice Council, Andriy Ovsienko, told RBC-Ukraine.
The head of the profile committee of the Verkhovna Rada, Andrei Kostin (“Servant of the People”), also emphasizes that the question of resuming the VKKS must be resolved first. According to him, the participation of international experts in this process is the “presidential position of principle.”
In turn, the deputy head of the OP on the judicial system, Andrei Smirnov, asks that bill # 3711 not be called as part of the reform. “This is just the launch of the VKKS, and the judicial reform work and the development of the necessary bills are still ongoing,” he assured RBC-Ukraine.
At the same time, a source from the post at the Law Reform Commission says they are not planning any global disruption there. According to him, there is a generalized draft strategy, but now all efforts are launched into “burning problems”.
We are talking both about the launch of the High Qualification Commission and the reformatting of the Superior Council of Justice. The last point is recorded directly in Ukraine’s memorandum with the International Monetary Fund, but has not yet been fulfilled.
Cleaning in question
The Supreme Council of Justice is a constitutional body that has remained practically the only and main “center of power” in the Ukrainian judicial system today.
After Team Ze came to power in 2019, its leadership changed, but staffing changed minimally. At the same time, the Memorandum with the IMF provides for the creation of a special commission to verify the “integrity” of the members of the Council of Justice. Foreign experts should also be involved in this process.
The GSP categorically disagrees with the idea that it should be “cleaned up”, and even more so with the help of foreign representatives. The head of this body, Andrei Ovsienko, in a comment to RBC-Ukraine, said that the composition of the council is constantly and regularly updated, and that the concept of “integrity” has no legal basis.
“At this time, the integrity criteria have not been established by law, and to make claims about inconsistency with what is not normatively defined, in my opinion, is incorrect,” he said.
The VSP considers the participation of foreigners in the process of selection and verification of members of the Ukrainian state body as a violation of sovereignty, because “they are not representatives of the people of Ukraine.”
Despite opposition from the Justice Council, the Ministry of Justice has already drafted a bill on its “purge” with the participation of international officials. However, this document has yet to be presented not only to parliament, but even to the Cabinet meeting.
The Minister of Justice, Denis Malyuska, explained to the publication that his department was obliged to develop said bill, since the head of government is a signatory to the Memorandum with the IMF. But later, the Fund “expressed the desire” to be initiated by the Office of the President.
Malyuska assures that such a document has already been drawn up at the PO and will be presented to Western partners in the near future. He admits that it is this bill that, among other things, affects the receipt of the next tranche from the IMF.
“This is an important marker (law on GSP, – ed.), and now there are active negotiations with the IMF to understand what our next steps are and what the dates will be. According to the Memorandum, this law should have already been approved … But the constitutional crisis slowed down the process a bit. But I think that the text that will be provided to key stakeholders will be ready in the next few days, “he told RBC-Ukraine.
The head of the Ministry of Justice assures that it was precisely this circumstance that “stopped” the implementation of the bill prepared by the Ministry of Justice. As for the text of the OP document, then, according to Malyuska, “the last discussions about its little details are underway.”
OASK hung
In addition to restarting the High Council of Justice, another body of the Ukrainian judicial system, which unexpectedly came to the fore, has become important on the issue of greater cooperation with the IMF. The memorandum establishes that cases against state agencies should be considered only by the Supreme Court as a court of first instance. They are now in charge of the Kiev District Administrative Court (OASK).
This “temple of Justice” managed to survive during the judicial reform of the previous president, Petro Poroshenko. The court was not reorganized and its director, Pavel Vovk, avoided recertification, which all Ukrainian judges had to undergo as part of the judicial reform.
The change in power did not shake OASK’s position, but at the same time, last year, law enforcement agencies began to have doubts. The National Anti-Corruption Office and the Attorney General’s Office released the so-called “Vovk tapes”, searches made at the UASK president’s office in the first half of 2019.
It was on the basis of these records that in the summer of 2019, NABU presented Vovka and its deputies with the suspicion of interfering in the work of government agencies, and in the summer of 2020 another, in an attempt to “seize power” and “create a criminal organization.” Pavel Vovk himself denies the charges and emphasizes that he is not considered a suspect at all.
Be that as it may, in the fall a petition appeared on the president’s website and garnered the required number of votes demanding the removal of the UASC because of “the corruption and systematic unjust decisions that have its roots.”
On October 28, the head of state reacted and said that he had ordered to initiate consultations with the Superior Council of Justice on the liquidation of the odious court. The SCJ told RBC-Ukraine that almost a month after that, the consultation process had not started.
“Formal consultations have not started. This procedure (liquidation of the court, – ed.) is clearly defined by the law “On the Superior Council of Justice” and the law “On the Judicial System and the Statute of Judges”, and the Superior Council of Justice will exercise its powers within these procedures. But at the moment (mid-November, – ed.) We have not received any documents or requests from the Office of the President, “the head of the council, Andrei Ovsienko, told the publication.
The OP is surprised by such statements and assures that they have sent a letter to the Justice Council.
“Last week (November 16 to 22 – ed.) a letter from the Presidency was officially sent to the High Council of Justice, in which we asked the SCJ to determine its position on this matter (OASK liquidation, – ed). This is how these consultations are carried out, “OP Deputy Director Andrey Smirnov explained to RBC-Ukraine.
Justice Minister Denis Malyuska pointed out that he does not see serious obstacles to comply with the IMF recommendation, but without liquidating the OASK, but depriving this body of key powers. According to him, the ministry, the Presidency and the IMF have no disagreement with the idea of transferring the functions of the District Court to the Supreme Court to consider certain categories of cases.
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Since coming to power, Zelensky’s team has already named judicial reform as one of its key priorities. But the low quality of the prepared laws, the Ukrainian bureaucracy and the lack of understanding from international partners have led to the fact that after a year and a half, everything must start anew. Also, you will have to start by correcting your own mistakes last year. The delay in this work has already begun to lead the current government to time problems.
