Political Points for 29 April – 6 May 2019

How to renew the compositionof the main human resources body in the justice system?

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1. CPLR expert opinion

In connection with the expiration of the term of office for ten members of the HCJ in early May, significant personnel changes took place in the High Council of Justice (HCJ). 7 new members were introduced to the Council.

Contrary to the constitutional prohibition, for the second time in a row, O. Malovatsky and P. Grechkivsky, elected by the Congress of Advocates, became members of the HCJ. In relation to O. Malovatsky, journalists discovered that in May 2017, the company associated with him received a permission for oil and gas extraction without an auction, and based on this fact, a pre-trial investigation is being carried out. In relation to P. Grechkivsky, a criminal trial is under way  prosecuting him for an attempt to commit fraud (more details in the political points of 11-18.02.2019).

Two members of the HJC, elected by the Congress of Prosecutors, also begun their duties. They are I. Fomin, who is called by the media a lawyer of Y. Lutsenko, and V. Matviychuk, who can also be deemed a person close to Y. Lutsenko, as he is one of the few prosecutors, who remained in a managerial position, after appointment of the latter by the General Prosecutor. The PROSUD project also revealed facts that cast doubt on the legality of the origin of funds for the acquisition of property owned by his family.

Judges L. Ivanova and S. Shelest, elected by the congress of judges, also acquired powers. In relation to L. Ivanova, during the first competitive selection to the Supreme Court, the Public Integrity Council approved a conclusion of non-conformity with the criteria for integrity and professional ethics because of the possible inconsistency of the family’s life style with declared income, dishonesty to public and unethical behavior during the administration of justice. As reported by journalists, in 2015, S. Shelest’s mother, who works as an ordinary doctor, presented her a three-room apartment in Kyiv, costing from UAH 20 to 50 million. The fact that at the congress of judges elected L. Ivanova, S. Shelest as members of the HJC and two other members of the Council, who began to fulfill their duties earlier (O. Prudyvus, who prohibited mass protests during the Revolution of Dignity, and N. Krasnoshchokova) was known  before the congress, and the candidates themselves were called as “agreed with Bankova”.

Even before (in 2017), the Congress of Judges elected L. Shvetsova to the Council, who has got a conclusion from the Public Integrity Council on non-conformity with the criteria for integrity and professional ethics during the first competitive selection to the Supreme Court, and V. Govorukha, who were called “dark horses” by the activists of the “Chesno” public movement because of the revealed facts of unethical behavior.

That is, the public has claims about the integrity and independence of at least 9 recently elected members of the Council.

Despite the expiration of the term of office of members of the HCJ, who were elected by the Verkhovna Rada of Ukraine and the President of Ukraine, the latter did not fill their quota in the Council. Moreover, the District Administrative Court of Kyiv temporarily blocked the appointment of members of the HCJ by the President of Ukraine. In addition, one position of the HCJ member remains vacant, which must be filled by the congress of scholars.

The above circumstances led to the fact that at present the HCJ operates in the composition of 16 members, instead of 21 stipulated by law.

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

In accordance with the transitional provisions of the Constitution of Ukraine, prior to the election (appointment) of new members of the High Council of Justice, this body acts as a member of the High Council of Justice during their term of office, but which can not last longer than April 30, 2019. The election (appointment) of the members of the High Council of Justice is carried out not later than April 30, 2019.

In accordance with Part 1 of Art. 6 of the Law of Ukraine “On the High Council of Justice” a citizen may be elected to the post of the HCJ member, who, in particular, meets the criterion of political neutrality. Part 4 of the above Article stipulates that members of the Council, in their activities and beyond, must adhere to ethical standards set for a judge.

According to the Code of Judicial Ethics, such standards include the fact that the judge should be an example of the strict observance of the requirements of the law, the rule of law, high standards of conduct (Article 1), and put every effort to make a wise, law-abiding and informed person believe that his/her behavior is impeccable (Article 3).

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

Taking into account the significant problems with the integrity and independence of the newly appointed members of the HCJ, it is expedient to amend the Law of Ukraine “On the High Council of Justice” in order to provide for mandatory verification of candidates for the HCJ on their compliance with the criteria of political neutrality and integrity. The subject of such verification may be, for example, the Public Council of International Experts (PCIE), which demonstrated its high efficiency during the competition to the High Anticorruption Court, and (or) the Public Integrity Council. In this case, only those candidates, for which the PCIE (PIC) has no justified doubts on their integrity, may be admitted to the election/appointment. It is also advisable to foresee that the existence of a negative conclusion is the reason for the early termination of the powers of a HCJ member. In this way, the HCJ, which is the main staffing body in the Ukrainian judicial system, could be provided with a higher quality composition.