Judicial and Anti-Corruption Reform Priorities

Recent decisions by the Constitutional Court of Ukraine (CCU) undermining Ukraine’s anti-corruption architecture have created a crisis that poses a serious threat to the country’s democratic development.  The G7 Ambassadors welcome the efforts by President Zelenskyy and other Ukrainian leaders to treat this crisis with the urgency it demands, and as close partners of Ukraine, we appreciate the opportunity to consult on this matter.  In response to the President’s request for suggestions on how to effectively and sustainably resolve the crisis, we offer the following set of priority actions, which we believe would restore public confidence in Ukraine’s judiciary and significantly advance Ukraine on its path to achieving a prosperous, secure democracy.  

These priorities reflect the comprehensive reform necessary to establish a judicial system that meets the expectations of the Ukrainian people.  We would note that certain urgent actions should be taken to immediately repair the damage caused by the CCU and ensure this crisis is not repeated in the near future.  In particular, we believe urgent action is necessary to 1) reestablish with a firm legal basis the anti-corruption provisions recently declared unconstitutional; 2) prevent the CCU from causing further harm even while it is being reformed into a truly independent and accountable institution; and 3) ensure all nominations to key judicial and law enforcement bodies are transparent, merit-based, and credible.

We emphasize that while it is necessary to act quickly to repair the damage inflicted by the CCU upon Ukraine’s anti-corruption institutions, it is equally critical to ensure that these institutions emerge from this crisis with the ability to carry out their missions effectively.  In this regard, the provisions aimed at restoring liability for false or unfiled asset declarations adopted by the Verkhovna Rada on December 4 do not have a sufficiently deterrent effect and thus would not be an effective tool in preventing corruption.

Judicial Reform:

• Constitutional Court of Ukraine (CCU) - Dec 2020 to Feb 2021

• Temporarily institute a modest increase in the decision-making quorum of the CCU.
• Postpone ongoing selection procedures for CCU judges until new selection rules are introduced.
• Urgently establish a clear and transparent competitive selection process for CCU judges with the meaningful participation of internationals in vetting all candidates.
• Strengthen disciplinary proceedings and ethical requirements for CCU judges.
• Mandate impartial open deliberation of cases and voting by CCU judges.

• High Council of Justice (HCJ) - Dec 2020 to Feb 2021

• As HCJ reform is a necessary precondition for judicial reform to be effective, it should be addressed as a matter of urgency.
• Establish an independent Ethics Commission that is empowered to vet current HCJ members and submit a motion as necessary to dismiss HCJ members to appointing bodies for their final decision.
• Introduce a new transparent selection process for HCJ members that ensures high ethical and integrity standards, with a meaningful role for international participants.  The Ethics Commission will create a pool of qualified, high-integrity candidates for the HCJ from which appointing/electing bodies must choose.

• High Qualifications Commission of Judges (HQCJ) - Dec 2020 to May 2021

• Ensure a transparent reboot of the HQCJ, with a meaningful role for international participants, involving an independent Selection Commission empowered to establish its own internal regulations for competitively selecting HQCJ members.
• Ensure that the new HQCJ is independent and has the authority to approve its own rules of procedure and internal regulations.
• Integrate the HQCJ into the HCJ once the latter’s integrity is ensured and the vacancies at first instance and appellate courts are filled by the HQCJ, in order to reduce the number of judicial self-governance institutions.

• Judicial Selection and Qualifications Evaluation - Dec 2020 to Feb 2021

• Establish clear, public HQCJ rules and procedures for a transparent, merit-based judicial selection and evaluation of qualifications.
• Through inclusive consultations, develop and adopt a comprehensive judicial reform strategy that is in line with international and European standards and harmonized with the National Anti-Corruption Strategy for 2020-2024.
• Resume suspended processes for judicial selection and qualifications evaluation.

• Public Integrity Council (PIC) - Dec 2020 to May 2021

• Strengthen the PIC by establishing more stringent criteria for membership, expanding its authority to vet the integrity of sitting judges as well as judicial candidates to fill vacancies on first instance courts, and providing full government funding and resources to support PIC operations.

• Supreme Court - Dec 2020 to Dec 2021

• Merge the Supreme Court of Ukraine with the Supreme Court.
• Revise the Supreme Court’s current structure from four separate and distinct cassation courts and a grand chamber with separate identities to one unified Supreme Court with specialized chambers.
• Create additional filters to limit the jurisdiction of the Supreme Court.

• Judicial Discipline - Dec 2020 to Feb 2021

• Strengthen judicial accountability by adopting clear rules, standards, and processes for investigating and adjudicating complaints of judicial misconduct.

• Administrative Justice - Dec 2020 to May 2021

• Revise procedures for the consideration of high-profile administrative cases against government agencies in line with IMF commitments, including transferring jurisdiction for such cases to the Supreme Court or establishing a new specialized administrative court with judges selected through an open, competitive, and merit-based process with the meaningful participation of internationals.

• State Judicial Administration (SJA) - Dec 2020 to May 2021

• Conduct an audit and reorganize the SJA with stronger oversight by the reformed HCJ to ensure that it serves the needs of the judiciary with the requisite level of transparency, integrity, and professionalism.

Anti-Corruption Reform:

• National Anti-Corruption Bureau of Ukraine (NABU) - Dec 2020

• Taking into account the recent CCU decision, establish a firm legal basis as soon as possible for NABU that ensures its institutional independence and enables it to continue operating effectively without interruption.

• National Agency for Corruption Prevention (NACP) - Dec 2020 to Jan 2021

• Reintroduce criminal liability prior to the end of 2020 for knowingly failing to file and for false statements in asset declarations.
• Ensure 24-hour public access to the e-asset declaration register, and restore NACP access to public registries.
• Adopt amendments to the Law on the Prevention of Corruption that include procedures for verifying declarations and monitoring conflict of interest and lifestyle of judges by NACP in agreement with HCJ and CCU.  
• Align Code of Administrative Offences provisions regarding violations of disclosure requirements with the Criminal Code.

• Special Anti-Corruption Prosecutors Office (SAPO) - Feb 2021

• Ensure a transparent, independent, and merit-based selection process for the head of SAPO.
• Facilitate the adoption of transparent procedures and evaluative methodology for the SAPO competition.
• Guarantee that the existing voting rule of 5+2 is maintained.
• Ensure that the Commission and its Working Group (WG), established by the Prosecutor General, receive access to relevant registers and databases.

• High Anti-Corruption Court (HACC) - Jan 2021

• Ensure the independence of the HACC by providing the court with adequate resources, including permanent premises in line with IMF commitments, and by ensuring effective security to judges and their families.