Ukraine’s judicial reform is moving forward again after an extended impasse but there’s little to celebrate.
The country’s corrupt “judicial mafia,” political establishment and vested interests are still doing their best to prevent a genuine cleansing of the judiciary, anti-corruption activists and judicial experts say.
The future of the reform is in jeopardy. The High Council of Justice, the judiciary’s main governing body, is obstructing it. The Constitutional Court may kill it altogether.
Cleaning out the judiciary will mean firing and prosecuting corrupt judges and officials, who will fight tooth and nail to keep that from happening, experts say.
“This is (political) death for Pavlo Vovk and other corrupt judges,” Vitaly Tytych, ex-head of judicial watchdog Public Integrity Council, told the Kyiv Post in a reference to Vovk, the notorious head of the Kyiv District Administrative Court. “They have nowhere to withdraw.”
Council of Judges
The judicial reform law, which was passed in July, envisages creating an Ethics Council to oversee the integrity of the discredited High Council of Justice.
The High Council of Justice is the final authority for appointing, firing and punishing judges. The council, which did not respond to requests for comment, has been involved in numerous corruption scandals.
The Ethics Council, which would hire and fire members of the High Council of Justice, must contain three Ukrainian judges and three international experts. If a vote is split three to three, international experts’ opinion will prevail.
For months, the Council of Judges, Ukraine’s main professional association of judges, had refused to delegate its members to the Ethics Council, missing deadlines for doing so.
Bohdan Monych, head of the Council of Judges, said in September that the reform legislation should be revised because Ukrainian judges would not have sufficient voting powers. He denied the accusations of sabotage.
Eventually the Council of Judges caved in under public and international pressure and delegated its members on Oct. 23.
High Council of Justice
The next stumbling block in the reform is the High Council of Justice, which is supposed to formally create the Ethics Council.
The High Council of Justice has already missed the deadline for creating the council, according to DEJURE, a legal think tank. The Ethics Council was supposed to be set up five days after the Council of Judges nominated its delegates.
Tytych argued that parliament should pass amendments to extend the deadlines to allow the proper implementation of the reform.
Missing the deadline appears to be another act of sabotage in the reform.
The High Council of Justice has repeatedly expressed its opposition to creating the Ethics Council. Oleksiy Malovatsky, acting head of the High Council of Justice, said on Nov. 1 that the Ethics Council’s work will be unconstitutional and that High Council of Justice members could resign in protest.
If the High Council of Justice fails to create the Ethics Council, it will be created automatically under the law, according to Halyna Chyzhyk, a judicial expert at the Anti-Corruption Action Center.
“The Ethics Council will not be blocked,” she told the Kyiv Post.
The possible resignation of High Council of Justice members might actually be a better outcome, as it is known for appointing and protecting judges linked to illegal schemes.
In 2020, the council unanimously refused to suspend Vovk, Ukraine’s most controversial judge. He is involved in Ukraine’s most high-profile judicial corruption case. In wiretapped conversations released by the National Anti-Corruption Bureau of Ukraine, Vovk allegedly mentioned the involvement of council members in his alleged corruption schemes.
High Qualification Commission
In September international organizations and the Council of Judges also delegated their representatives to a panel for selecting a separate body called the High Qualification Commission of Judges.
This commission is the second most powerful judicial body that serves as the gatekeeper for who gets to become a judge in Ukraine.
Two of the three Council of Judges representatives do not meet ethics and integrity standards, according to DEJURE.
The selection panel for choosing the High Qualification Commission would also consist of three Ukrainian judges and three foreign experts. At least four panelists will be needed to approve candidates, and foreign experts’ opinion will prevail when the vote is equally split.
However, a quorum of four members at selection panel meetings may allow Ukrainian judges to block such meetings by failing to attend.
There have been no meetings of the selection panel yet due to the delay in the reform of the High Council of Justice. International experts do not want the current discredited High Council of Justice to take part in forming the High Qualification Commission, Tytych and Mykhailo Zhernakov, head of DEJURE, told the Kyiv Post.
Undo button
Another threat to the judicial reform law may come from the Constitutional Court if it decides that it’s unconstitutional and throws it out.
On Oct. 8, the Supreme Court asked the Constitutional Court to review the law.
“They are de facto paving the way for destroying the judicial reform through the Constitutional Court, which has already (destroyed) the laws on asset declarations, illicit enrichment and unlawful court rulings,” Zhernakov said on Facebook.
The Supreme Court and Constitutional Court did not respond to requests for comment.
The Constitutional Court has previously demolished key pillars of Ukraine’s anti-corruption infrastructure and law enforcement reforms. For example, it canceled Ukraine’s asset declaration system for state officials in 2020, attracting widespread ire.
Constitutional Court reform
In December, the Prosecutor General’s Office charged Oleksandr Tupytsky, chairman of the Constitutional Court, with bribing a witness to make him give false testimony. He denies the accusations.
President Volodymyr Zelensky fired Tupytsky and another Constitutional Court judge, Oleksandr Kasminin.
Several leading anti-corruption watchdogs condemned Zelensky’s move in a joint statement. They argue that Tupytsky and other judges of the court should be investigated but they also say that the president has no constitutional authority to fire judges of the Constitutional Court.
According to the Ukrainian Constitution, only the Constitutional Court itself can fire its members, which is supposed to guarantee its independence.
In July, the Supreme Court canceled Zelensky’s decree on the dismissal of Tupytsky and Kasminin as unlawful.
Zelensky appealed the decision with the court’s grand chamber and launched a competition to replace Tupytsky and Kasminin.
On Oct. 22, a selection panel recommended several replacement candidates, and Zelensky is expected to appoint them. Some of them do not meet integrity and political neutrality standards, according to DEJURE.
“Whoever from this list is chosen by Zelensky, the court will be illegitimate for nine years if he appoints them before the tenure of Tupytsky and Kasminin expires,” Zhernakov wrote on Facebook.
To reform and cleanse the Constitutional Court, anti-corruption watchdogs have proposed holding a transparent competition for the body’s jobs with foreign experts’ participation when incumbent judges retire. However, lawmakers from Zelensky’s party have rejected this move.
Zelensky’s spokesman Serhiy Nikiforov said he could not immediately comment on the issue.
Vovk’s court
Another blocked part of reform concerns Vovk’s Kyiv District Administrative Court.
Vovk is arguably Ukraine’s most infamous judge. Civil society sees him as the symbol of judicial corruption and impunity. He has been audiotaped discussing corrupt deals and even bragging about the “political prostitution” of his court. He has denied all allegations.
All attempts to hold Vovk responsible for corruption and obstruction of justice have run into an impenetrable wall. Courts have refused to extend investigations against the judge while prosecutors missed deadlines for sending the cases to trial.
In April, Zelensky submitted an “urgent” parliamentary bill to liquidate this court.
However, the parliament’s legal policy committee has effectively blocked it. The committee is headed by Andriy Kostin, a lawmaker from Zelensky’s Servant of the People party.
Zelensky’s spokesman Nikiforov told the Kyiv Post that the bill’s fate is up to the parliament, where the president’s party holds an absolute majority. Kostin did not respond to requests for comment.
On Nov. 2, the parliament passed the first reading of a separate bill seeking to transfer part of the Kyiv Administrative District Court’s powers to the Supreme Court.
“This bill, although it is movement in the right direction, does not resolve the problem of the Kyiv District Administrative Court,” Zhernakov wrote on Facebook. “This den of corruption must be liquidated…. Members of this gang must be prosecuted,” he said.
