Why the Venice Commission's decision is dangerous for Ukraine
This week, the Venice Commission (VC) released its opinion on draft laws concerning disciplinary procedures and the vetting of judges.
Despite an overall critical assessment of the harmful provisions, some of the Commission’s recommendations could, in the long run, significantly complicate or even make impossible the process of cleansing Ukraine’s judiciary and holding low-integrity judges accountable.
At the very least, MPs could use this opinion to promote harmful draft laws that would, in turn, put Ukraine’s commitments to the EU and its European integration process at risk.
Read more to understand why this Venice Commission opinion has caused serious concern among the expert community in the article by DEJURE Foundation and the Anti-Corruption Action Center: Blow to judicial reform: what problems the Venice Commission's opinion on the vetting of judges brings.
The Venice Commission is an advisory body of the Council of Europe that examines the laws of European countries for compliance with standards of democracy, human rights, and the rule of law.
Traditionally, the VC carefully evaluates situations and gathers input from all stakeholders. Yet not everything is always 100% accurate: some recommendations make sense if your location is Strasbourg, not Kyiv.
The reason lies in the Commission’s lack of understanding of Ukraine’s realities, the nuances of reform processes, and the historical context.
For example, judicial irremovability is relevant in countries with systems that already work and need to be preserved. For Ukraine, however, it is disastrous, since our goal is to renew the judiciary.
Judicial self-governance effectively protects against political influence in countries where courts enjoy public trust.
Thus, while the Venice Commission’s recommendations traditionally enjoy high trust in Ukraine and the EU, these particular ones may not work in practice or fit Ukraine’s unique circumstances – and, as in the case of this new opinion, could even harm and set back judicial reform.
The new Venice Commission opinion is the latest example where, despite being generally positive for advancing judicial reform, some recommendations risk undermining meaningful progress.
A bit of context: at the request of the High Council of Justice (HCJ), VC experts reviewed and provided opinions on three draft laws – Nos. 13137 and 13137-1 (nearly identical) on disciplinary procedures, and No. 13165-2 on the verification of judges’ integrity and family ties declarations.
The first two draft laws (one co-authored by Denys Maslov, Chair of Parliament’s Legal Policy Committee) would effectively make it impossible to dismiss judges for disciplinary violations.
They would allow judges holding Russian passports, bribe-takers, and collaborators to remain in office.
The draft laws also exempt judges from responsibility for failing to submit or falsifying asset declarations, abolish qualification assessment as a disciplinary sanction, enable blocking complaints against low-integrity judges, and increase chances for dubious candidates to obtain judicial positions.
Although the Venice Commission sharply criticized these bills, it failed to take a clear position on several key threats. Moreover, some of its recommendations could actually roll back progress.
Such vetting is critically necessary, as the Supreme Court has for years blocked the cleansing of the judiciary by issuing rulings that roll reforms back and has remained a symbol of impunity in the justice system. Without this vetting, public trust in the Supreme Court will remain critically low, and the reform itself risks becoming merely cosmetic once again.
MPs may use it to justify harmful legislative changes. Then, as a result, the disciplinary system may again become a shield for low-integrity judges rather than an instrument of cleansing.