Analytical Report 'Establishment of the new Supreme Court: key lessons'
Establishment of the NEW Supreme court:
2 Achievements and 12 failures
Analysts from the Centre of Policy and Legal Reform and DEJURE Foundation tracked and recorded the course of the competition to the Supreme Court and prepared an analytical report thereon. For the first time, the selection of judges to the highest judicial institution proceeded through an open competition which lasted almost a year and ended in November 2017. Already in December that year, the new court started its operation.
The selection and appraisal of candidates were conducted by the judiciary bodies which mainly consist of the judges themselves: the High Qualifications Commission of Judges (HQCJ) and the High Council of Justice (HCJ). Public Integrity Council (PIC) has been established to support the HQCJ in the assessment of candidates’ integrity in order to introduce public participation in the process of judges’ selection.
During the competition, the candidates had to show their compliance with the criteria of competence, integrity and professional ethics. However, there are numerous facts that indicate that the formation of the new Supreme Court was not fair and transparent enough. As a result, it created risks for the operation of the new Supreme Court and revealed problems that need to be eliminated for the sake of establishment of the credible anticorruption court and for effective conduct of qualification assessment of judges.
1. Interviews with the candidates were broadcasted online, which allowed the public to observe this process. However, the decisions made by the HQCJ on the results of these interviews often did not match what the public saw.
2. Legal scholars and lawyers were allowed to participate in the competition in addition to judges (as it was before), which made it possible to bring some new blood into the judicial system (although the renewal was not significant).
1. Serious legal threats to the functioning of the new Supreme Court were created, which may lead to further appeals to the European Court of Human Rights regarding the legitimacy of the Supreme Court’s establishment as such. Namely:
· None of the deadlines for the establishment of the new Supreme Court and appointment of its judges was met (the law stipulated that the Court should be formed till the end of March 2017, later postponed till the end of September, but it was established only in November 2017). Additionally, the Presidential Order on the establishment of the Supreme Court is missing, although it is required by the constitutional provisions and the law.
· As part of the Court, the Grand Chamber was formed; however, the number of its members is lower than it is prescribed by the law, which may lead to doubts about the legitimacy of its decisions.
2. The competition was held in a non-transparent way, especially in terms of determining results, even despite the fact that the public had repeatedly called on the judicial bodies - the HQCJ and the HCJ - to ensure transparency of the selection process, which cannot be limited to video broadcasts only. There was a lack of transparency in the evaluation of candidates, which prevents from making a convincing conclusion about the fairness of the judges’ selection during this competition.
3. The HQCJ systematically delayed the publication of documents related to the competition. An overdue non-disclosure of candidates' dossiers (for more than four months) cannot be justified by technical reasons, since the HQCJ possesses sufficient material and technical support, as well as strong support from the international technical assistance projects. However, this could have been a deliberate position of the HQCJ or its management. Such a delay in the publication of the HQCJ’s decision was caused either by the absence of written decisions of the HQCJ or by their questionable quality (and, subsequently, by the HQCJ’s unwillingness to make them public prior to the appointment of judges to the Supreme Court), or due to both reasons at the same time.
4. The origin of the scores received by candidates was incomprehensible both to the society and to the candidates themselves. The HQCJ failed to disclose explanations of the scores which it granted during the competition, having published instead only the general assessments of the candidates based on three criteria and the final evaluation. These data are not sufficient to establish a correlation between the scores and all indicators of the evaluation.
5. The selection methodology was vague and inaccurate, while reliability and accuracy of the results were not confirmed by specialists, which undermines the credibility of the results of the competition to the new Supreme Court.
6. The HQCJ failed to provide equal conditions for all participants of the competition:
· Candidates were able to use mobile communication equipment during the examination. It means that some of the candidates were able to use somebody’s help and hence received an advantage over those who took the test honestly.
· During the practical assignment, some candidates received cases which they considered when they were serving as judges, which, most probably, resulted in unfair advantage of several candidates over the others. The HQCJ did not provide convincing arguments and evidence to refute the existence of such advantages: in particular, it did not disclose the assignments, candidates’ written works and respective scores from each member of the competition commission with reference to the evaluation criteria.
· The HQCJ allowed deviation from a predetermined methodology, most probably, in favor of specific candidates. Thus, participation in the competition of more than 40 candidates whose scores for a practical assignment were lower than the minimum threshold required, but with the high scores for the test, was not terminated. Instead, these candidates were admitted to the next stage of evaluation, in contradiction contrary to the predetermined methodology.
7. It is unknown which professiogram was used for evaluation of the personal qualities of the would-be judges. The description of such a professiogram has been developed with the support of donors, but the information on its approval or consideration by the HQCJ in the course of competition is lacking.
8. Psychological testing, among other things, could be used to select loyal candidates (by using the methodology that measures commitment to existing corporate rules of the system and, in particular, loyalty to its leadership). This could lead to the removal from the competition of independent candidates who were focused on changing the system.
9. The HQCJ and the HCJ ignored the important facts provided by the PIC which testified against the integrity of some candidates. In the vast majority of cases, the decision of the HQCJ on overruling negative opinions of the PIC did not contain the convincing facts in favor of the integrity of the candidates. The HCJ’s decision on candidates did not contain such substantiation at all despite the public statements of the Head of the HCJ Ihor Benedysiuk that the HCJ would make maximum efforts to explain to the public its decisions and actions. This may indicate that the true motives for such decisions were subjective circumstances rather than objective ones.
10. The HQCJ and the HCJ were not impartial and independent. According to PROSUD information, at least 6 of the 15 members of the HQCJ committed the same actions for which the candidates received negative findings from the PIC. Regarding the HCJ, the composition of the new Supreme Court was determined by at least three HCJ members who are the recipients of state awards from the President of Ukraine (I. Benedysiuk, O. Malovatskyi, T. Malashenkova), while one member of the HCJ has been charged with an accusation of committing a crime - an attempted large scale fraud (P. Hrechkivskyi).
11. The vast majority of Chairpersons of the new Supreme Court was appointed among the former heads of the high specialized courts (which were liquidated in connection to the launch of the new Supreme Court) whose integrity was put into question by the PIC. This may indicate a conscious preference for such candidates during the competition with the intention to appoint them as heads of the cassation courts.
12. The state bodies that should have ensured verification of candidates, primarily the National Agency on Corruption Prevention (NACP), fulfilled their duties improperly. For example, the NACP neglected the facts of candidates’ failure to declare their property or discrepancies between the candidates’ income and declared assets. Furthermore, the person responsible for verifying the declarations from the side of the NACP was convicted for corruption crimes.
In order to prevent the problems identified in the report in prospective selection procedures and qualification assessment of judges, including in the course of formation of the High Anticorruption Court, it is necessary to undertake the following measures:
1. Assess the compliance of the qualification assessment procedures (including the techniques of psychological testing) with the needs of the selection of judges with participation of independent experts, as well as the validity, reliability and accuracy of the results of application of these procedures.
2. Consider the possibility of reorganizing judicial bodies responsible for judges’ selection (the HQCJ and the HCJ) in order to ensure the highest representation of the “agents of changes” rather than those who are inclined to negative practices of the old judicial system (mutual cover-up, political dependence, bribery, etc.).
3. Introduce legislative amendments which would make possible to verify the result of qualification assessment and contests. In particular, to provide for judicial bodies’ decision-making through an open voting; unify and strengthen the approaches to managing conflicts of interests within the judicial bodies; to strengthen the role of the public (the PIC) in the relevant procedures.
4. Taking into account the reasonable doubts about the independence and impartiality of the bodies responsible for judges’ selection, to envisage participation of the representatives of international donors in the selection of judges of the prospective anticorruption court.
The contents of this publication are the sole responsibility of the Centre of Policy and Legal Reform and DEJURE Foundation and can in no way be taken to reflect the views of the European Union or the Center for Democracy and Rule of Law.