Open Statement by the Center of Policy and Legal Reform to the President of Ukraine, the European Union, the Council of Europe, and donor states

Open Statement by the Center of Policy and Legal Reform

to the President of Ukraine, the European Union, the Council of Europe, and donor states

concerning the conduct of an international audit of the procedure of selection of judges to the Supreme Court

Last year, Ukraine launched a comprehensive judicial reform, which should have restored the public trust in courts. The first step in its implementation was the formation of a new Supreme Court, which is to emerge as a replacement to four high courts.

The competitive selection conducted by the High Qualification Commission of Judges lasted nearly nine months. On September 29, the Superior Council of Justice announced the names of 111 candidates whom it will recommend to the President for appointment to the Supreme Court judgeships.

It is of utmost importance that the appointment of judges is the result of an honest and transparent procedure, while the new judges do not give rise to even the slightest doubts as to their competence and integrity.

The importance of formation of the Supreme Court of Ukraine’s development is of no lesser importance than the presidential or the parliamentary election. Indeed, unlike the President of Parliament members, judges are appointed for life.

At the same time, a number of facts undermine the trust in the competition’s integrity.

1. During the examination (multiple-choice testing and performance of practical assignments), communication means were not removed from the candidates, and so they could be used if the candidates temporarily left the examination room.

Some of the candidates received advantages during practical assignments, as these were developed on the basis of the very real-life court cases that were previously adjudicated by those candidates in their capacity as judges, without visible modifications. Arguably, this was the reason behind keeping the content of these practical assignments classified.

Data published following the examination results gave rise to justified doubts as to accuracy of grading. Despite this, experts were not engaged for evaluating reliability and validity of the examination results.

2. The High Qualification Commission of Judges personified multiple-choice testing and practical assignment results prior to finalizing the setting of the minimum passing score for the exam. This enabled the Commission members to see which of the candidates will remain in the competition and which will drop out, and thus to influence the outcome.

The minimum passing score for the examination as a whole was not specified in internal rules; instead, it was set as the total of minimum passing scores for the multiple-choice test and the practical assignment components. As a result, several dozen candidates who did not receive the minimum passing score for practical assignment were able to be reinstated in the competition. Ultimately, three of these candidates were recommended for appointment to Supreme Court judgeships.

3. As part of psychological testing, all candidates took the Bulgarian loyalty test (toward employer), which was presented to the public as integrity test. Whether it was adapted for evaluating candidates for judicial office specifically is unclear.

Despite the established procedure, the Commission did not set the minimum acceptable score for psychological testing; as a result, all candidates, even those scoring the lowest, were able to continue with the competition.

4. Despite the fact that the High Qualification Commission of Judges’ sessions were open, it is impossible to verify the integrity of evaluation results on the basis of published data. There are reports suggesting the lack of correlation between a candidate’s conduct during competition and the published results.

5. 24% of the candidates recommended to the President for appointment come from the list of those whom the Public Integrity Council urged against appointing, due to their lack of integrity. The High Qualification Commission of Judges agreed with only 38% of the Public Integrity Council’s negative opinions. Rationales for rejecting the remaining negative opinions were never publicized.

According to media reports, the conduct that gave rise to the Public Integrity Council’s negative opinions concerning candidates is equally inherent to some of the members of both the High Qualification Commission of Judges and the Superior Council of Justice. Yet, members of neither body have recused themselves on this ground.

6. Members of the Superior Council of Justice attempted to recuse themselves in 54 instances, believing themselves not to be impartial towards certain candidates. In 50 of these cases, the Council rejected their recusal requests.

One of the members of the Superior Council of Justice making final decisions concerning the candidates (Mr. Hrechkivskyi) has been formally accusedHYPERLINK "http://www.gp.gov.ua/ua/news.html?_m=publications&_c=view&_t=rec&id=213532" of attempted grand fraud in especially large amounts. The Chair of the Superior Council of Justice (Mr. Bendysiuk) received a state award from the President, even though this is prohibited by law.

We believe that these facts require a thorough review and an appropriate legal response. Some of these facts currently form the foundation of court cases pending before the High Administrative Court of Ukraine and the Supreme Court of Ukraine. Since these courts are to be liquidated following the start of operations of the new Supreme Court, there are reasonable doubts as to their ability to resolve these cases in an objective manner.

In the future, politicians would be able to use public distrust in the process of formation of the new Supreme Court to justify yet another reformatting of the judiciary to suit their own interests. As such, it is crucial to establish a Supreme Court whose defense the Ukrainian society would come to during turbulent times.

The only way to ensure objective evaluation of the integrity of selection of judges for the new Supreme Court is to conduct an international audit of the selection procedure with participation of donor states. This would not take that much time, especially when compared to the amount of time needed to overcome the consequences of implementation of judicial reform in a manner that does not meet the society’s interests.

In light of the foregoing, we call upon:

the President of Ukraine to invoke before donor organizations and states the conduct of an international audit of the selection procedure of judges for the new Supreme Court;

the Superior Council of Justice to refrain from submitting to the President of Ukraine any recommendations concerning candidates for the new Supreme Court judgeships until after the audit results are finalized and, in the event any procedural violations are identified, to review its decisions;

the Parliament of Ukraine, the Superior Council of Justice of Ukraine, and the High Qualification Commission of Judges of Ukraine to take into account the audit results in organizing any subsequent competitions.

 

We respectfully ask the European Union, the Council of Europe, and the donor states to provide to Ukraine any assistance necessary to conduct an international audit of the procedure for selection of judges to the new Supreme Court.