Potential Changes in HACC Competition: Analysis of Draft Laws 11425 and 11426

On July 22, 2024, MPs Denys Maslov, Roman Babii, and others registered draft laws No.11425 and No.11426, which impact the competition for the positions of judges of the High Anti-Corruption Court (HACC). Other MPs submitted alternative draft laws under No. 11425-1 and No. 11426-1. 

Draft law No.11425 proposes to remove the requirement for a minimum threshold score for the cognitive abilities test, in particular in regard to candidates for HACC and HACC AC judges. By draft law No.11426, MPs propose to extend the term of office of the Public Council of International Experts (PCIE), which assists in selecting judges within this competition. 

On August 15, the committee on legal policy recommended that the parliament adopt draft laws No.11425 and No.11426 as a basis and reject alternative ones.

Brief conclusions:

• the proposed extension of the term of office of the PCIE by November 1, 2025, may not be sufficient to complete the HACC competition;
• neither does the draft law No.11426 solve other problems related to the activities of the PCIE. For example, limiting the time to analyze candidates to 30 days;
• if the discretion of the High Qualification Commission of Judges (HQCJ) to determine the average permissible score for the cognitive abilities test proves unjustified, this might invalidate the corresponding stage of the competition.

Our suggestions:

• to extend the term of office of the PCIE for the period of full staffing of the first and the appellate instances of the HACC. There might be additional positions if judges of the first instance get appointed to the HACC Appeals Chamber (HACC AC);
• to extend the period for analyzing candidates by the PCIE to 60 days. This will increase the capacity of PCIE members in conducting a quality analysis of candidates for the position of a HACC judge;
• to specify the criteria by which the HQCJ will determine the average permissible score of the cognitive abilities test. These criteria should prevent unreasonable underestimation, or vice versa, overestimation of the level of cognitive abilities of candidates.

Current regulation of assessment of candidates for HACC judges

The Law of Ukraine on the High Anti-Corruption Court establishes a special procedure for the competitive selection of judges. For better and independent selection of judges, the law provides for temporary participation of international experts in the competition; they form the Public Council of International Experts. 

Currently, the Law on the High Anti-Corruption Court provides that:

1.  the PCIE loses its powers in November 2024 due to the expiration of the 6-year term;
2.  the PCIE may convene special meetings and consider the issue of the candidate’s non-compliance with the position of the HACC judge under the criteria of integrity (morality, honesty, incorruptibility), specific knowledge and practical skills to hear HACC cases;
3.  article 9 of the Law determines the procedure for the establishment of the PCIE, the procedure for the selection and termination of the powers of the members of the PCIE, the requirements to them, their rights and obligations.

In addition to the special procedure, the second competition for the positions of HACC judges will include a new type of anonymous testing—the cognitive abilities test—which was introduced by the Law of Ukraine No.3511-IX dated December 9, 2023. 

In general, the Law of Ukraine on the Judiciary and the Status of Judges provides that:

1.  for the cognitive abilities test, as well as for all other types of anonymous testing, a minimum threshold of at least 75% of the maximum possible score is set;
2.  the program and the list of questions for the cognitive abilities test are published no later than 30 days before the start of the qualification assessment.

What do legislators propose in draft laws No.11425 and No.11426?

Draft law No.11426 is aimed at solving the key issue of the current competition for the positions of HACC judges—the expiration of the six-year term of the PCIE as an institution. 

This draft law proposes to extend the term of the PCIE for the period of the competition for 25 positions of HACC judges, but not later than November 1, 2025.

In the explanatory note, parliamentarians argue that the provisions on the activities of the PCIE are the provisions of temporary effect, but during the adoption of the Law of Ukraine on the High Anti-Corruption Court in 2018, they were, according to the authors of the draft law, mistakenly included in the main body of the law, and not its final and transitional provisions.

Therefore, draft law No.11426 proposes:

1.  to extend the powers of the PCIE as an institution for the period of the competition for 25 positions of HACC judges, but not later than November 1, 2025;
2.  that with the end of this competition, the PCIE will lose its powers and cease to exist as an institution;
3.  that the subsequent competitions for the positions of HACC judges will be held with the participation of the Public Integrity Council (PIC).

Draft law No.11425 proposes to differentiate the approach to setting a threshold for the cognitive abilities test. The authors of the document consider it correct not to set clear thresholds for such testing. Currently, the successful result of any test is the participant’s score of at least 75% of the maximum possible score. Instead, MPs are convinced that the successful completion of the cognitive abilities test should take place after the candidate scores the average acceptable test score set by the HQCJ.

That is, the HQCJ will be responsible for setting the threshold for testing cognitive abilities. This is explained by the peculiar nature of this test because it is in fact an evaluation of a person’s IQ. The IQ test does not have the highest possible score, and thus it is possible to mistakenly exclude candidates capable of administering justice.

This law will take effect upon publication. There are no reservations about its application to the already launched competitions, so, if it is adopted, the HQCJ will have to decide quickly how to determine this “average permissible score.”

Risks draft law No.11426 carries

1. The powers of the PCIE may expire sooner than the HACC is fully staffed with judges

The PCIE’s term of office expires this November. Ukraine has already committed to the IMF to extend this period for another year.

Although the authors of the draft law propose to extend this period, we at Transparency International Ukraine believe that the chosen method has certain flaws because it jeopardizes the successful completion of the competitive selection of HACC judges.

Draft law No.11426 proposes to establish that the PCIE will cease to exist as of the end of the current competition, but no later than November 1, 2025. 

The HQCJ promised to complete the competition by the end of 2024; however, in six months, the commission only admitted candidates to the qualification assessment stage, and the PCIE, although it now has an updated composition, has not even begun its work because the competition is delayed. Therefore, it seems almost impossible to be able to carry out all the stages of selection, in particular, for the PCIE to analyze the candidates before its powers expire.

This does not exclude situations where, because of certain circumstances, the HQCJ will not be able to complete the competition by the proposed date of November 1, 2025. The Main Scientific and Expert Department of the Verkhovna Rada and the High Anti-Corruption Court also commented on this provision.

In addition, as of the end of the current competition, some judges of the first instance of the HACC will be selected for the positions of judges of the Appeals Chamber. This will make it necessary to hold another competition for the selection of judges to the first instance without delay; the PCIE must be engaged in the selection. Since the HACC should continue its full-fledged activities, this competition is to take place immediately after the completion of the current one based on the number of vacant positions that need to be filled.

Therefore, we recommend that the term of office of the PCIE be extended so that it can cover the subsequent upcoming HACC competition to fill future vacant judicial positions.

2. Changing the procedure for assessing candidates to HACC positions may adversely affect the quality of the selection of judges

The authors of the draft law propose to engage the PCIE only in the current competition; all subsequent ones will have to be held with the participation of the Public Integrity Council, and this will seriously change the procedure of competitive selection.

The purpose of the PCIE’s participation in the selection of HACC judges was to provide special guarantees of independent selection. The PCIE has the right to screen out candidates at special joint meetings due to their non-compliance with the requirements to a HACC judge. The PIC, on the other hand, does not have the authority to convene special joint meetings and screen out candidates. Instead, the role of the PIC will be limited to drawing conclusions about the candidate’s non-compliance with the position, which the HQCJ assesses.

In this case, the current version of the draft law reduces the standard for assessing the professionalism of the selection of HACC judges.

In addition, the PCIE and the PIC evaluate candidates according to different criteria, which also have different indicators. 

In accordance with the Law of Ukraine on the High Anti-Corruption Court, the PCIE assesses candidates according to two criteria: “integrity (morality, honesty, incorruptibility)” and “specific knowledge and practical skills to hear cases within the jurisdiction of the High Anti-Corruption Court.”

However, instead of these provisions, it is proposed to establish that the PIC will assess candidates for compliance with the “criteria provided for by the law for the purposes of a qualification assessment.” If these changes are adopted and the ongoing competition is completed, the Law of Ukraine on the High Anti-Corruption Court will no longer provide any specific criteria for the PIC to assess candidates for HACC judges. Therefore, in the future, judges will be selected according to the general criteria provided for by the Law of Ukraine on the Judiciary and the Status of Judges, and there are two of them: integrity and professional ethics.

The PCIE’s authority and competence to assess the criterion of “specific knowledge and practical skills to hear cases within the jurisdiction of the High Anti-Corruption Court” used to increase the quality of the assessment during the competitive selection to the positions of HACC judges.

The previous competition showed the high productivity of the PCIE, when more than a third of the candidates were screened out due to their non-compliance with the mentioned criteria.

Therefore, such inconsistent exclusion of the PCIE from the competitive selection procedure is a premature decision. The argument that the provisions of the Law on the High Anti-Corruption Court on the PCIE are temporary cannot be an absolute reason for the instant cancellation of one of the best practices in the selection of judges—with the engagement of international experts.

The optimal solution to this problem was included in the alternative draft law No. 11426-1 rejected by the committee. According to it, if the six-year term of the PCIE expires, but the two-year term of office of its members does not, then the powers of this council shall be extended until the expiration of the powers of its members. Thus, the PCIE would cease to exist in April 2026, and this would allow completing all the necessary competitive selections both to the HACC and to the future High Administrative Court.

Therefore, the change in the selection procedure of the HACC judges due to the removal of the PCIE seems premature.  

3. The issue of the period for holding joint meetings of the PCIE and the HQCJ has not been resolved

In addition, the draft law does not solve the problems of the period during which the members of the PCIE must analyze the candidates for the positions of HACC judges. 

Currently, this is 30 days, but this time may be insufficient for a quality analysis of the information provided about the candidates and special joint meetings of the PCIE with the HQCJ on the compliance of candidates for the post of a judge of the High Anti-Corruption Court with the criteria specified in the law.

Therefore, we recommend extending the possible period for holding special joint meetings of the PCIE with the HQCJ to 60 days.

What are the risks of draft law No.11425

A differentiated approach in the selection of judges is a great initiative since the cognitive abilities test is of peculiar nature, and it is important to prevent unreasonable and unbalanced screening of candidates.

Recently, the HQCJ approved the basic requirements in regard to the provision of services for the development of a library of test tasks to assess participants’ cognitive abilities during the qualification exam. They also provide for pilot testing of 240 questions that should be developed by this October.

However, the main risk is the lack of any benchmarks for the HQCJ when establishing a particular threshold, and, as a result, the high probability of choosing an unreasonably low or high passing score. Cognitive testing is not within the professional sphere of lawyers (members of the HQCJ), so the HQCJ will require expert assistance of specialists to analyze the results of pilot testing.

The risk also lies in the lack of requirements to the HQCJ regarding the moment when such a threshold is to be announced to participants—before the test or after it. Violation of the legal certainty of participants and the establishment of threshold scores after testing will not contribute to trust in the results of the competition. 

We support the proposed changes; however, for their proper implementation, clear requirements to the HQCJ are to be established in regard to transparency and competence when determining the average acceptable score for the cognitive abilities test. In addition, at the legislative level, it is necessary to provide for the moment when the commission shall announce the threshold score.

Conclusions

Transparency International Ukraine supports the adoption of draft laws No.11425 and No.11426 in the second reading, but only after considering our comments and proposals.

Draft law No.11425 should specify the criteria by which the HQCJ shall determine the average permissible score for the cognitive abilities test. These criteria should prevent unreasonable underestimation or overestimation of the level of candidates’ cognitive abilities. 

Draft law No.11426 should take into account that:

1.  the extension of the PCIE’s term of office must cover the period necessary for the full staffing of the first and the appellate instance of the HACC. There might be additional vacancies if judges of the first instance get appointed to the HACC AC;
2.  the period for analyzing candidates by the PCIE should be extended to 60 days. This will increase the capacity of PCIE members in conducting a quality analysis of candidates for the position of a HACC judge.