Initiated by Ukraine’s president Volodymyr Zelensky, the draft law ‘On amendments to certain legislative acts concerning the procedure for electing (appointing) members of the High Council of Justice  was brought to the Verkhovna Rada on Ferbruary 12. and is still pending. On May 5, the Venice Commision revealed their opinion of the proposed law.

The High Council of Justice was set to streamline the judicial reform in Ukraine. Designated as a collective independent constitutional body, the High Council of Justice acts to guarantee the independence of the judiciary and establishing of an honest and highly professional judicial corps in compliance with Ukrainian laws.

Volodymyr Zelensky initiated establishing the additional  Ethics Council that will help in electing HCJ members that have to meet the professional criteria of ethics and integrity. The council will have 6 members of mixed composition with three of them to be proposed by international organizations, and other three are to be Ukrainian, active or retired, judges appointed by the Council of Judges.

The Venice Commission opinion welcomes the legal reasoning behind the draft law no.5068 but stresses that a judicial reform ‘is doomed to fail’ unless the High Council of Justice is functioning properly.

Supporting the establishment of the Ethics Council, the Commission experts warn that the proposed  law is a ‘partial measure  and does not provide for a holistic reform of the judiciary’.

The Venice Commission came up with the recommendations that assume the following:

  1. the law should set out the “criteria of professional ethics and integrity”; this can be done in the text or by reference to national and/or international sources, such as the UN Bangalore Principles of Judicial Conduct;
  2. the President of the Supreme Court or the President of the High-Anti-corruption Court could declare the Ethics Council as established and a default mechanism should be introduced for the case when the Council of Judges has failed to appoint its members;
  3. the candidacies for the position of national members of the Ethics Council should be announced on the web-site of the Council of Judges and only judges already evaluated (vetted) should be eligible for appointment;
  4. the international participation in the Ethics Council should expressly be limited to a single mandate of six years;
  5. the law should provide sufficient investigative powers to the Ethics Council for its work;
  6. in order to facilitate the adoption of Rules of Procedure, the law could enable the Ethics Council to apply the rules for the HQCJ by analogy; at least the applicable rules in the Law on the Organisation of Courts and the Status of Judges could be used also for the procedure of the Ethics Council;
  7. the provision that the Ethics Council needs to complete its assessment of the current members of the HCJ within 3 months is unrealistic; this deadline should be extended;
  8. the Ethics Council should establish a pool of candidates from which the appointing bodies can choose (i.e. filtering of candidates) and the Ethics Council should not be (de facto) empowered to rank candidates; only the Ethics Council and not the Rada Committee in charge of justice issues should decide on ethics and integrity of candidates.
  9. the decisions of the Ethics Council should be deemed as adopted if four members vote in favour and if at least two international experts are among those four members; in case of a split vote, the vote should be repeated, but if the tie vote is not overcome within a fixed timeframe indicated in the law, the vote of the group of members that includes at least two internationals experts should prevail;
  10. an appeal against the decisions of the Ethics Council should lie with the Supreme Court;
  11. the Ethics Council should be obliged to transmit its findings of non-compliance to the NACP and the NABU for further action.