The Supreme Court has defined the status of the Public Council of International Experts, which assessed the integrity of the High Anti-Corruption Court candidates. This is based on the information of Public Integrity Council.
Last year, the Cassation Administrative Court under the Supreme Court has made two decisions on the lawsuits of candidates to the High Anti-Corruption Court against the Public Council of International Experts (the PCIE).
The candidates who were eliminated from the competition after joint meetings of the PCIE and the High Qualification Commission of Judges (the HQCJ) went to court with the demand to cancel the decision on their elimination from the competition.
In the decision of 25 February 2019 in a lawsuit filed by candidate Oleh Kimstachov, the Supreme Court has ruled that in the competitive procedure of selection of judges, the PCIE is not an independent agency (a public officer or agency) authorized to make the decision on the further participation of a candidate in the competition. The final decision (creating legal consequences for the individual) is made by the HQCJ, and the form of the meeting (a joint meeting with the PCIE) does not affect the legal status of the HQCJ and its decisions, and thus, does not grant the PCIE any legal capacity and competence in the legal relations occurring in connection with the decisions made by the HQCJ with its participation.
In the decision of 25 February 2019 in the lawsuit filed by candidate Ihor Shtulman, the Supreme Court also emphasized that it was the HQCJ as a public agency of judicial governance that was authorized to organize and conduct the qualification assessment to understand a (potential) judge’s capability to administer justice. The PCIE only assists the HQCJ with this task.
That is why the Supreme Court has ruled that it should be the HQCJ that can be the defendant in such a case. The PCIE, on the other hand, does not make the final decision and does not have procedural rights and obligations to participate in litigation.
Unlike the PCIE, PIC members do not have joint meetings with the HQCJ and do not vote together, they only prepare conclusions on judges and candidates reviewed by the HQCJ at its own meetings. Thus, according to the Supreme Court logic, the PIC, just like the PCIE, cannot be the defendant in such lawsuits and does not have legal capacity and competence in such judicial procedures.
Thus, the Supreme Court has finally supported the idea that the Public Integrity Council deemed evident a year ago, when judges started contesting PIC conclusions en masse.
As a reminder, Kyiv Administrative Court and other courts ignored the legislation and reviewed lawsuits filed by judges and candidates for judicial positions against the PIC. The court has made dozens of decisions “cancelling” PIC conclusion. Later, such candidates tried to use these decisions to back up their integrity at a new competition. The newly elected member of the High Council of Justice Larysa Ivanova was among those who received a decision that the PIC conclusion about her was illegal.
Unfortunately, in these disputes, the High Qualification Commission of Judges observed the situation passively and did not contest the court decisions. It led to the situation when 20 evidently arbitrary decisions to cancel PIC conclusions remained in effect.
