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Weekly analytics for 21 – 27 September 2021

28.09.2021

Weekly analytics 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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The Council of Judges approved the procedure for selecting candidates for the Ethics Council which is not in line with the law


Event

On September 21, the Council of Judges of Ukraine (CJU) approved the Regulation on conducting the selection for positions of the Ethics Council members, in order to develop a list of candidates for the first composition of the Ethics Council under the CJU quota (Regulation). To participate in the selection procedure, candidates must submit documents before October 21. At the same time, the deadline for the CJU to delegate its representatives to the Ethics Council that was set by the law had expired in mid-September.

The CPLR’s assessment

The law does not require the CJU to approve the rules for selecting the candidates for the Ethics Council. The rules of procedure of the CJU are sufficient to carry out the CJU’s powers on identifying the members of the Ethics Council. The content of the Regulation itself is not in line with the requirements of the Law «On the High Council of Justice» (hereinafter, the Law), which govern the procedure for approving the first composition of the Ethics Council. In particular, the Regulation contains requirements that restrict the rights of potential candidates:

  • the Regulation require a candidate to have at least 15 years of professional experience. However, the transitional provisions of the Law set forth an exhaustive requirements list for the first composition of the Ethics Council being selected from among judges and retired judges:

– impeccable business reputation, high professional qualities, public confidence;
– successful completion of a qualification assessment (if a candidate is a judge/retired judge).

The requirement regarding 15 years of professional experience applies only to members of the subsequent compositions of the Ethics Council;

  • In the Regulation, the CJU established a number of pro forma requirements for the list of candidates’ documents and the ways of their presentation (up to the font type and size), as well as determined that, in case of failure to submit all documents or their improper presentation, such documents are returned without consideration.

According to CPLR’s experts, the CJU’s approval of the Regulation that contradicts the Law «On the High Council of Justice», combined with setting a one-month deadline for candidates to submit documents for participation in the selection process, is an attempt to delay or even fail to delegate candidates to the Ethics Council. Such delay has been noted even by the ambassadors of the G7 countries, who pointed out that: «The proposed schedule does not reflect the importance and urgency of this reform. The ambassadors continue to call on the Council of Judges and all partners to ensure the rapid nomination of experts to the Ethics Council of the HCJ».

It is not being ruled out that illegal sections of the Regulation were deliberately included in order to create circumstance for a judicial appeal, with the aim of blocking or slowing down the selection of candidates for the first composition of the Ethics Council.

The CJU’s obvious reluctance to delegate its representatives to the Ethics Council may lead to its removal from this process through legislative amendments.