Political Points for 18–25 March 2019

President will appoint at least 69 new judges to the Supreme Court 10 thereof having negative conclusions of the Public Council of Integrity

---

1. CPLR expert opinion

On March 19-20, the High Council of Justice (HCJ) was interviewing candidates for vacant positions of judges at the Supreme Court and decided to submit a proposal to the President on the appointment of 69 candidates, postponed the consideration of 8 candidates for 28 March and declined the appointment of 1 candidate.

Earlier, the Public Council of Integrity (PCI) issued conclusions on the unreliability of 10 candidates submitted to the President for appointment to the positions of the Supreme Court judges, of which there are three current members of the High Council of Justice, including its Chairman – I. Benedysiuk, who has received the state award from the President contrary to the law.

In the opinion of the CPLR experts, appointment to the Supreme Court of persons with a dubious reputation will negatively affect the level of trust in the activities of this body. In addition, consideration by the HCJ of the appointment of their colleagues, current members of the Council, to the judges’ positions, will raise legitimate doubts about the impartiality of such decisions. At the same time, the President is only authorized to appoint a person a judge’s position, but may not reject the candidate.

2. Respective authorities counter-point/argument

On March 7, the HCJ adopted a decision that the HCJ members who became the winners of the competition to the Supreme Court will not take part in the consideration of the materials concerning the persons recommended by the HQCJ for the appointment to the positions of a Supreme Court judge.

Before the meeting on the consideration of candidates, Andriy Boyko, a HCJ member, assured that “all reservations made by the PCI and other activists will be subject to the most thorough analysis.” When asked about the existence of a conflict of interests among members of the HCJ, he noted: “I do not see any particular problems regarding a possible conflict of interest.” “We know these colleagues. We have got an impression about the level of their competence, compliance with integrity standards and professional ethics. I do not think that joint work will have an impact or provide additional preferences,” Andriy Boyko summed up, noting that each member of the Council will take a decision personally.

3. CPLR assessment of the authorities counter-point

1. Earlier, the experts were unable to assess the validity of the Commission’s arguments to reject the findings of the PCI, as the High Qualifications Commission of Judges (HQCJ) did not make a decision. These decisions have not been made public yet, but were provided upon requests for access to public information.

At present, it can be stated that the Commission has no arguments against the facts set forth in the conclusions of the PCI. After disclosing the information from the PCI conclusion and explanations of the candidate, all decisions of the HQCJ are justified in the same way. The decision of the HQCJ Board contains the following conclusion: “Commission does not see the grounds for giving the candidate 0 points as an assessment on criteria of integrity and professional ethics,” while the decision of the HQCJ adopted in the plenary regime is supported by the statement that the board “adopted a well-grounded decision”.

While considering the candidates, the HCJ members did not ask them about all the circumstances that compromised them and became known to the HCJ. The HCJ does not provide grounds for positive decisions regarding candidates. Consequently, neither the HQCJ nor the HCJ gave a reasoned assessment to the facts noted in the conclusions of the Public Council of Integrity.

2. Removal of the HCJ members, who won the competitive selection to the Supreme Court, from solving the above issues related to submissions to the President of Ukraine does not mean that the risk of impartiality of other HCJ members is completely minimized, since the HCJ members – winners of the competition, continue to exercise their other powers as the Council members. In particular, they participate in solving working issues, review of disciplinary complaints, retain access to the Council’s internal documents, and communicate with other members of the Council who have to decide on their appointment. I. Benedysiuk, as the Chairman of the HCJ, continues to exercise administrative powers in relation to the Council work organization.

Pre-defined impression of the HCJ members regarding the competence, compliance with the integrity standards and professional ethics by their colleagues, as stated by A. Boyko, does not stand in favor of the HCJ’s impartiality. The HCJ had the opportunity to postpone consideration of the issue on its colleagues until the formation of the new HCJ, which should take place in the coming months.

4. Related legislation/instructions which require the authorities act in a certain manner

According to Part 1 of Art. 88 of the Law of Ukraine “On the Judicial System and Status of Judges”, the HQCJ adopts a motivated decision on the (non)confirmation of the ability of a candidate to administer justice in a relevant court. If the PCI in its conclusion finds that the candidate for a position of judge does not meet the criteria of professional ethics and integrity, the HQCJ may decide to confirm the ability of such a candidate to administer justice in a relevant court only if this decision is supported by at least eleven of its members.

According to Part 6 of Art. 81 of the Law of Ukraine “On the Judicial System and Status of Judges”, on the basis of the results of the competitive selection to the Supreme Court, the HQCJ makes recommendations to the HCJ on the appointment of a candidate for a position of judge. Part 7 of this Article stipulates that the HCJ decides on providing a submission to the President of Ukraine regarding the appointment of a judge to a position in the Supreme Court.

In accordance with Part 4 of Article 37 of the Law of Ukraine “On the High Council of Justice”, paragraph 1 of Part 19 of Article 79 of the Law of Ukraine “On the Judicial System and Status of Judges”, the HCJ may decide to refuse a submission to the President of Ukraine regarding appointment to a position of a judge on the basis of a reasonable doubt as to whether the candidate meets the criteria of integrity or professional ethics or other circumstances that may adversely affect public confidence to the judicial system in connection with such appointment.

Paragraph 3 of part 5 of Article 20 of the Law of Ukraine “On the High Council of Justice” stipulates that a member of the HCJ is obliged to refuse to participate in the consideration of an issue upon the presence of circumstances that raise doubts in his/her impartiality.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Decisions of the HQCJ and the HCJ should be motivated, in particular, in case of rejection of the conclusions of the PCI.

The HJC should postpone consideration of the issue on providing a submission to the President of Ukraine on the appointment of persons who are current members of the HCJ (I. Benedysiuk, N. Volkovytska, M. Husak, T. Malashenkova) to the positions of judges before the expiration of their term of office. This issue could be considered by the newly formed HCJ.

Unfortunately, the activity of the HCJ did not remove justified doubts on the integrity and impartiality of the decisions made both by the HQCJ and the HJC in relation to the candidates. Promotion of candidates with negative findings of the PCI to the positions of judges in the Supreme Court in order for the President to appoint them before the presidential election may point to the political motivation of such appointments.

Results of the competitive selection to the Supreme Court provide another evidence to the necessity of introducing legislative and even constitutional amendments as to the procedure for the formation and composition of the bodies of judiciary governance (HQCJ and HJC), which should include at least half of the members of the public in the Commission