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Weekly analytics for 1 – 7 December 2020

07.12.2020

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. 

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to media@pravo.org.ua




High Council of Justice continues to submit applications for the appointment of judges who have not passed the qualification assessment


Event

In a weekly analysis for November 24-30, 2020, the CPLR experts reported that on November 27, the High Council of Justice (HCJ), in violation of the statutory procedure, ignoring the findings of the Public Council of Integrity (PCI), submitted to the President a motion to appoint eight judges whose five-year term of office has expired.

On December 1, with a similar violation, the HCJ submitted a motion to appoint nine more judges for an indefinite term.

On December 2, the PCI and more than a dozen NGOs called on the HCJ to cease its gross violation of the Constitution in the appointment of judges and to abolish illegal decisions; the President – to leave without consideration the submitted proposals; the President and the Parliament – to introduce and adopt draft laws that will ensure the renewal of the HCJ and the launch of the new High Qualification Commission of Judges (hereinafter – HQCJ).

On the same day, the HCJ press service published a response to the PCI’s address. The HCJ justified the legitimacy of its actions by the provisions of the Law No.679-ІХ, which gives it the power to make submissions in relation to judges who have been found by the HQCJ board to qualify for the office. According to the HCJ, the fact of passing the qualification assessment is confirmed by the decision of the board of HQCJ, and not by the plenary composition of the Commission. As the powers of the HQCJ were terminated ahead of schedule in November 2019, it is currently impossible to confirm the decision of the HQCJ boards by the plenary composition of the commission.

On December 3, the HCJ submitted an application for the appointment of nine more judges for an indefinite period, one of whom (V.P. Kytsyuk) was not passing the qualification assessment at all. So far, the HCJ has managed to make submissions on the appointment of 43 judges, ignoring the PCI’s findings.

According to the HCJ’s official website, applications on 11 more such judges are scheduled to be heard on December 10.

CPLR assessment

As the CPLR experts have already reported, the transitional provisions of the Constitution stipulate that a judge appointed earlier for five years must pass a qualification assessment. In the case of judges submitted on 27 November, 1 and 3 December, the qualification assessment was not completed, as the PCI’s conclusions did not give effect to the decisions of the HQCJ’s panels on the suitability of such judges for the positions held and this was stated in such decisions. If there is a conclusion on the PCI in relation to a judge, he/she can successfully pass the qualification assessment only if the decision of the HQCJ’s panel is made by the votes of at least 11 members of the commission (Article 88 of the Law “On the Judiciary and the Status of Judges”).

There are no exceptions to this legal requirement. In interpreting this provision, the Grand Chamber of the Supreme Court stated: “if in the process of qualification assessment there is such a legal phenomenon or circumstance as the conclusion of the PCI, then the law imperatively and without alternative determines when the decision of the panel of the HQCJ on the judge’s ability to administer justice in the relevant judge takes final effect.” (decisions in cases No. 9901/489/199901/381/19).

According to A. Kozlov, a former member of the HQCJ, 10 of the 33 people currently nominated by the HCJ are delegates to the next congress of judges, which will decide on the election of four HCJ members, a judge of the Constitutional Court and members of the Council of Judges of Ukraine. Such illegal actions of the HCJ can be explained by the intention of its members to influence the results of the forthcoming congress of judges.



The government plans to introduce artificial intelligence to assist in the administration of justice


Event

On December 2, the Cabinet of Ministers approved the Concept for the Development of Artificial Intelligence in Ukraine, developed by the Ministry of Digital Transformation. Implementation of the Concept is scheduled for 2030. One of the priority areas in which the concept will be implemented is justice.

The following tasks in this area should be completed over the next ten years:

  1.  Further development of existing technologies in the field of justice (electronic court, Unified Judicial Information and Telecommunication System, etc.).
  2.  Implementation of advisory programs based on artificial intelligence (hereinafter – AI), which will open access to legal advice to the general public.
  3.  Prevention of socially dangerous phenomena by analyzing the available data using AI.
  4.  Determining the necessary measures for resocialization of convicts by analyzing the available data with the help of AI.
  5.  Making court decisions in cases of insignificant complexity (by mutual consent of the parties) on the basis of the results of the analysis carried out using AI, the state of compliance with legislation and case law.

In addition, it is proposed to use AI to identify unfair practices in the activities of officials and civil servants by analyzing the texts of management decisions and other data generated in the registers/systems during such activities.

CPLR assessment

CPLR experts support the idea of ​​introducing AI in the field of justice. This will free up the human resources involved in performing routine tasks that the computer can handle better.

Further development of technologies in the field of justice, simplification of access to justice through the creation of advisory programs, as well as the introduction of the possibility of adopting court decisions in cases of minor complexity by AI can have a positive impact on the quality of justice.

In addition, it should be noted that AI in justice can be used much more widely than suggested in the concept. For example, AI can be implemented to draft court decisions, provide a preliminary assessment of the grounds for disqualification/self-disqualification of a judge in a case (by analyzing case law), prepare tips for the judge on mandatory actions to be taken with a selection of relevant case law and legislation, evaluate risks in choosing preventive measures in criminal proceedings, etc.