Our Expectations from Second Competition to HACC

Finally, on November 14 and 15, first tests of candidates for judges of the High Anti-Corruption Court (HACC) were conducted. Following their results, 123 participants were admitted to the next stages of the competition, and 17 did not get the minimum score and no longer participate in the competition. 

However, a year has already passed since the launch of the competition for 25 positions of HACC judges, and judges have not yet been elected, and that’s not even the middle of the selection. This is unfortunate, since there is much attention to the selection—both from the public and from our international partners. 

The successful end of this competition was included in the list of requirements and recommendations that Ukraine faces on its European integration path. The selection of new judges thus means our movement towards EU membership.

However, this is not only about European integration. Due to scandalous cases, such as corruption in the Supreme Court or in the medical and social expert commissions, the attention of Ukrainian society to the Anti-Corruption Court is only growing. In the same way, expectations of quick and fair decisions in regard to real corrupt officials have soared accordingly.

The Anti-Corruption Court urgently needs an increase in the number of judges because the current workload hinders not only the operation of the institution, but also directly affects the perception of the activities of the National Anti-Corruption Bureau and the Specialized Anti-Corruption Prosecutor’s Office.

Time goes on, judges are not elected

The High Qualification Commission of Judges (HQCJ) holds a competition to the Anticorruption Court, and this is not the only selection it conducts. Simultaneously, 550 judges are being selected to appellate courts, which is also important in the context of the personnel crisis in the judiciary. Given that the Commission has just started assessing those who would like to become judges of the HACC, it already seems that the competition is “a little” delayed. Back in March, the HQCJ hoped to complete this selection by the end of 2024, but nowadays, it is clear that this is impossible. The deadline was postponed to May 2025, according to fresh forecasts.

The qualification assessment has just started, and those candidates who meet the requirements of the competition are in for a test, a study of the dossier, and an interview. In addition, in the course of 45 days, the Public Council of International Experts (PCIE) will have the right to hold joint meetings with the HQCJ on the candidates’ compliance with the criteria of integrity and professionalism. 

So, as we can see, there is still a huge chunk of work ahead within this competition. It appears that the HQCJ has adopted quite a thorough approach. 

The workload on the Commission today is considerable. After five years of downtime, in June 2023, the HQCJ finally resumed its operation with a new composition. It got entrusted with many new tasks immediately. Among them is the development of a regulatory framework for the assessment of all judges and candidates for judges under the new legislative requirements.

Therefore, only this summer, the Commission approved the Regulation on the Qualification Test, and soon, the public discussion of the General Regulation on Qualification Assessment should be completed. Without these preparatory stages, it is useless to hope for a quality competition on the part of the HQCJ.

It seems that such smoothness and consistency should have resulted in the unconditional success of the selection, given such preparation. But this, unfortunately, has not happened. This is vividly demonstrated by the issues on November 4 and 5 when testing cognitive abilities (IQ) within the competition to the appellate instance. Due to technical malfunctions of the system, the results of these defective tests had to be canceled, and their schedules were postponed. This affected the competition to the Anti-Corruption Court; according to the latest plan, on November 11, the same testing was to be passed by the candidates to the HACC, but it was again postponed for an indefinite period.

As we can see, the HACC competition has many organizational problems and delays, but the decisive factor is not the very fact of such obstacles, but the reaction and approaches to solving them.

The public should see what is happening within the competition

Compared to the first selection of judges to the HACC, the updated HQCJ managed to correct many mistakes, but the issue of transparency and openness of the competition remains relevant. It was a matter of complaints back in 2019 and still is, since the issues haven’t really changed.

Notably, the new regulatory framework of the Commission again fails to consider the demand of experts and the public for transparency. We saw this back in the summer during the public discussion of the draft Regulation on the Qualification Test where, for example, the members of the HQCJ ignored the proposal of the public to publish the completed practical tasks of the participants together with an assessment indicating the name of the candidate.

“The qualification assessment is carried out transparently and publicly,” states the draft of the new Regulation, but, unfortunately, it is difficult to find real things in this document that would indicate transparency. There is a risk that even the decisions with the scores of the candidates for the qualification assessment will not be published, and neither will joint decisions of the PCIE and the HQCJ, which we observed during the first selection to the HACC. 

This will hinder full-fledged tracking of all stages of the competition. The more doubts there are about unpublished results at different stages of the selection, the more opportunities there will be to challenge and question the choice of the HQCJ.

Therefore, the HQCJ still has room for development to remedy the situation. Although not all processes can be within its control, such as technical malfunctions, it is only the will of the Commission members that is needed to solve a significant part of the problems.

We expect that the HQCJ will finish the competition for judges of the HACC and the HACC AC successfully, and it will ensure the highest possible quality of the process, but to achieve this, it needs to ensure maximum transparency, efficiency, and objectivity. What we need is some changes in approaches. Here are the key ones.

1. The HQCJ should develop procedures and methodologies for assessing participants in advance, as well as regularly review them in accordance with current needs. Effective management of the competition is pointless when the Commission has no timely developed tools to assess participants.
2. The HQCJ should provide public access to the decisions made within the framework of the competition and stream its meetings. Trust in the judiciary can be built only if the selection is absolutely transparent.
3. The Commission should also publish the practical tasks completed by the candidates within the test, as this is a critical aspect of transparency in the competition and, accordingly, the trust in the selected judges.

Are we doomed or not?

Selection goes on slowly, and this is definitely not good. But along the way, we have managed to solve one of the most acute problems that could disrupt the second HACC competition—the expiration of the term of office of the PCIE on November 6.

On October 8, MPs, with the majority of our recommendations, adopted Law No. 3996-IX, which extended the powers of the PCIE for another year and a half, thereby ensuring a competitive selection of judges to the HACC with an increased level of independence and objectivity. The draft law, which is to improve the IQ testing of future judges, has also passed the first reading.

These steps are preparations that will allow for developing an effective model for the selection of judges for more than one competition in the future. By the way, the second selection of HACC judges will be immediately followed by the third one because 11 current HACC judges of the first instance would like to become judges of the HACC Appeals Chamber, which will again increase the number of vacant positions in the Anti-Corruption Court.

Filling the HACC with reliable judges is, first of all, the need of Ukrainian society for integrity, professionalism, and unblemished reputation since these representatives of the judiciary will administer justice in regard to senior corrupt officials. Moreover, this is a necessary step on our European integration path.