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On March 9-11, the XVIII Congress of Judges of Ukraine took place, where four members of the High Council of Justice (hereinafter – HCJ) were elected – Vitaliy Salikhov (Judge of the Kyiv Court of Appeal), Valery Sukhovy (Judge of the Commercial Court of Cassation under the Supreme Court), Serhiy Bolotin (Chairman of the Khmelnytsky Court of Appeal), Inna Plakhtiy (Judge of the Lutsk City District Court of the Volyn Region). In addition, two rounds of voting failed to elect a judge of the Constitutional Court. A new composition of the Council of Judges was also elected.
As previously reported by the CPLR experts, G7 Ambassadors and the EU Ambassador to Ukraine Matti Maasikas called on the Congress of Judges to postpone the election of HCJ members and judges of the Constitutional Court until transparent selection procedures are in place. However, judges ignored such appeals and ignored the fact that Parliament is considering a presidential draft law No.5068, which should change the procedure for selecting HCJ members, introducing an additional stage of checking the integrity of candidates by an independent commission with international participation.
At the end of the first day of the congress (March 9), before the voting, the media began to report on the list of “agreed” judges to be elected to the HCJ, which included Vitaliy Salikhov, Valery Sukhovy, Serhiy Bolotin, and Oleksandr Panasyuk. The candidacy of the Chairman of the Kherson Court of Appeal, Oleksandr Korovayko, was called “agreed” for the position of a judge of the Constitutional Court. The existence of such a list was confirmed by the former Chairman of the Council of Judges, Judge of the Supreme Court Oleh Tkachuk, who posted the following message on Facebook the same day: “The XVIII Congress of Judges of Ukraine has started its work. The working bodies of the congress were elected. The voting administrator has arrived at the congress as well. His shadow rustles between the delegates with the list of “recommended” for election. It is now easier for many delegates to work, as there are enough copies of the lists made. It remains only for oneself to decide whether to elect based on own judge’s opinion and the judge’s conscience or to agree with the shadow…“
According to the results of the first day of voting, three persons were elected to the HCJ from the published list of “recommended” – Vitaliy Salikhov, Valery Sukhovy, Serhiy Bolotin. The next day, in the second round of voting, Oleksandr Panasyuk lost the election to Inna Plakhtiy. With regard to at least three newly elected members of the council, the relevant public organizations published information that may indicate that such candidates do not meet the criterion of integrity (Vitaliy Salikhov, Serhiy Bolotin, Inna Plakhtiy).
The election of “pre-agreed” candidates is a repetition of the situation in 2018, when the winners of the HCJ competition were known even before the Congress of Judges.
The election of the HCJ members by the XVIII Congress of Judges once again demonstrated the need to reform the HCJ staffing procedure. Without the introduction of an additional stage, at which an independent competition commission will check the integrity of the candidates before their election, as well as giving each judge the opportunity to participate in the election of HCJ members, the “agreed” lists of winners will continue to exist. Even if we do not take into account the facts that may indicate the dishonest behavior of such candidates, the very fact of their “agreement” indicates the existence of a serious problem with their independence, and hence the inability to impartially and objectively exercise the powers of a HCJ member.
Candidate for the Constitutional Court judge Oleksandr Korovaiko failed to become a judge of the Constitutional Court because he did not get a sufficient number of votes, despite a significant gap in the first round of voting between him and his opponents (he received almost twice as many votes as Oleksandr Prokopenko (102 and 58 respectively), In addition, 24 ballots out of 267 in the second round were invalid. The non-election of a judge of the Constitutional Court by the Congress of Judges can be assessed positively, given the recommendation of the Venice Commission to refrain from filling vacancies until the updated rules for the selection of candidates for judges are implemented.