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Political Points for 4–11 March 2019

11.03.2019

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

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More than 20% of the candidates questioned by the public may be appointed to the Supreme Court


1. CPLR expert opinion

On March 6, 2019, the High Qualifications Commission of Judges of Ukraine (HQCJ) approved the ratings of candidates for vacant positions of the cassation courts judges of the Supreme Court.  Four current members of the High Council of Justice (HCJ) expectedly received Commission recommendations for appointment, while three of them (І. Benedysiuk, N. Volkovytska and T. Malashenkova) had got negative conclusions of the Public Council of Integrity (PCI). The same recommendations were given to another 13 persons with negative conclusions of the PCI. In total, the Commission recommended the appointment of 78 persons to the Supreme Court, of which more than 20% (that is, one in five), do not meet the criteria of integrity and professional ethics, in the opinion of the PCI.

On the same day, recommendations of the HQCJ were provided to the HCJ, which, on their basis, should decide on making a submission to the President of Ukraine concerning the appointment of these persons to the positions of judges. Consideration of this issue is scheduled for March 19-20, 2019.

According to the experts, appointment of persons with dubious reputation to the Supreme Court will adversely affect the level of trust in the activities of this body, and will alternately confirm that the HQCJ selectively uses the findings of the PCI in some cases, unreasonably ignoring them in other cases. Current regulatory framework relating to the activities of the HQCJ and the PCI requires radical changes in terms of strengthening the role of the public. As the US Ambassador to Ukraine M. Jovanovic noted“the Public Council of Integrity should be given more authority to prevent collapse of the judicial system due to the spoiled personnel.”

In addition, if the HCJ is going to consider the appointment of their colleagues who are current members of the Council, to the positions of judges, it will raise reasonable doubts about the impartiality of the decisions taken.

2. Respective authorities counter-point/argument

M. Makarchuk, Member of the Commission, said at the briefing on the results of the competitive selection to the Supreme Court: “The candidates who had negative conclusions provided relevant documents and explanations on the issues that were raised to them. Although the representatives of the Public Council of Integrity did not always agree with explanations of the candidates, their recommendation to the appointment means that the Commission has carried out a thorough legal assessment of all materials, including those from numerous state bodies.”

On March 7, 2019, the HCJ adopted a decision stipulating that the HJC members, who became the winners of the competition to the Supreme Court, will not participate in the consideration of materials regarding the persons recommended by the HQCJ for the appointment to position of the Supreme Court judge. This means that such HJC members will be removed from consideration of issues relating to the competitive selection to the Supreme Court.

3. CPLR assessment of the authorities counter-point

Given the absence of published decisions of the Commission at the time of providing recommendations to the HJC on the appointment of judges, it is impossible to assess the reasonableness of the Commission’s arguments for rejecting the conclusions of the PCI.

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 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 head of the HCJ, continues to exercise administrative powers in relation to the Council work organization and management of its secretariat.

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

According to Part 6 of Article 81 of the Law of Ukraine “On Judicial System and Status of Judges”, based on the results of the competitive selection to the Supreme Court, the HQCJ makes recommendations to the HCJ on the appointment of a candidate for the position of judge. Part 7 of this Article stipulates that the HCJ shall consider the issue of making a submission to the President of Ukraine regarding the appointment of a judge to the 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 part 19 of Article 79 of the Law of Ukraine “On Judicial System and Status of Judges”, the HCJ may take a decision to refrain from making a submission to the President of Ukraine regarding the appointment 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 trust in the judicial system in connection with such appointment.

Paragraph 3 Part 5 of Article 20 of the Law of Ukraine “On the High Council of Justice” stipulates that the HCJ member is obliged to refuse to participate in the consideration of the issue upon availability 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

In the opinion of the CPLR experts, the HCJ should postpone consideration of the issue of making a submission to the President of Ukraine on the appointment of current members of the HCJ (I. Benedysiuk, N. Volkovytska, M. Husak, T. Malashenkova) to the positions of judges until expiration of their term of office. These issues should be considered by the newly formed HCJ.

The HCJ should provide an appropriate and motivated assessment of the circumstances set out in the conclusions of the PCI and prevent the appointment to the Supreme Court of candidates in relation to which there is least reasonable doubt as to their integrity.

Moreover, the results of the competitive selection to the Supreme Court brought another evidence to the need for legislative changes in terms of the formation procedure and composition of the HQCJ, which should provide that at least half of the Commission members are public representatives.