Political Points for 28 January – 4 February 2019

High Qualification Commission of Judges demonstrates different standards of conduct while interacting with the Public Council of International Experts and the Public Council of Integrity

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1. CPLR expert opinion

In Ukraine, the processes of the formation of the High Anticorruption Court and the Supreme Court (filling out vacant positions) are going on in parallel. Both processes are being implemented by the High Qualification Commission of Judges (HQCJ), however the first process involves the Public Council of International Experts (PCIE), and the second one involves the Public Council of Integrity (PCI).

On January 28, 2019, the PCIE held its last joint meeting with the HQCJ on the selection of judges to the High Anticorruption Court. As a result of joint meetings, 39 candidates out of 113 discontinued further participation in the competitive selection due to non-compliance with the criteria specified by law. 3 candidates have terminated their participation on their own initiative. Prior to that, the PCIE questioned the integrity of 49 candidates. Consequently, 86% of the doubts expressed by the PCIE resulted in the withdrawal of candidates from the competition.

Instead, in the framework of selection to the new Supreme Court, as of February 1, 2019, the HQCJ interviewed 97 candidates. About 28 of them have got negative conclusions of the PCI. The HQCJ suspended participation in the competition by only 6 candidates with negative conclusions of the PCI. In addition, the PCI claimed that a number of conclusions was illegally left without consideration due to their receipt in less than 10 days, as explained by the HQCJ. Interviews will continue until mid-February.

Comparing the processes of formation of the High Anticorruption Court and the Supreme Court  brings to the following preliminary conclusions:

1) Both the PCIE and the PCI have approved the criteria for assessing candidates in accordance with the law; instead, the HQCJ has no clear criteria and anticipated practice that allows to act in a manipulative way in the case of the Supreme Court;

2) The HQCJ ensured appropriate working conditions for the PCIE – it provided full access to the Candidates’ file, including contact information. Instead, the PCI did not get access to the full information in the files, which is contrary to the law;

3) The PCIE had strong secretariat support and enough time to consider the candidates’ files; instead, there was no such secretariat in the PCI, and the HQCJ provided less time to prepare conclusions with larger workload;

4) Having the same indicators of candidates’ nonconformity with the integrity criterion, the mechanism with the participation of the PCIE turned to be much more effective than with the participation of the PCI, since the PCIE adopted decisions jointly with the HQCJ and had the “blocking” voice. Instead, the PCI has solely an advisory role.

This situation threatens the low level of public trust in the outcome of the competitive selection to the Supreme Court, while the High Anticorruption Court will have a high level of public legitimacy and international support. At the same time, the Supreme Court is the court of cassation in respect of all courts, including the High Anticorruption Court.

2. Respective authorities counter-point/argument

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3. CPLR assessment of the authorities counter-point

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

According to Part 5 of Article 8 of the Law “On the High Anticorruption Court”, the question of whether these candidates for the positions of judges of the High Anticorruption Court meet the criteria of integrity (Part 4 of Article 8 of the Law “On the High Anticorruption Court”) should be considered at a special joint meeting of the HQCJ and the PCIE. The decision on the eligibility of candidates for the criteria of integrity should be approved by the majority of the joint composition of the HQCJ and the PCIE (provided that at least half of the PCIE members have voted for it). If the decision is not adopted, the candidate is deemed to have ceased to participate in the competitive selection.

According to Articles 87-88 of the Law “On the Judicial System and Status of Judges”, the PCI may provide the HQCJ with a conclusion as to the non-compliance of the candidate with the criteria of integrity and professional ethics. The HQCJ can overcome such a conclusion by at least 11 votes out of 16.

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

It is important to review the competition procedures for all courts, including the Supreme Court, using the experience of forming the High Anticorruption Court. Instead of advisory role of the representatives of the PCI, it is expedient to include public representatives in the structure of the HQCJ with full voting rights. These changes require legislative work.

At the same time, before the legislative changes will come into effect, the HQCJ has to:

– learn how to effectively use the assistance provided to it by the PCI, without creating obstacles to the legal activities of the PCI, taking care of the public legitimacy of the process;

– ensure predictability of its practice, in particular, approve the indicators by which the HQCJ establishes non-compliance of candidates with the criteria of integrity and professional ethics.