Soon, two new members of the High Council of Justice will be selected: a shortlist of 10 candidates who will go through special verification has already been compiled. Why is this competition important and why does it have implications beyond the expert circle? Here it is explained by senior legal advisor of Transparency International Ukraine for Hromadske Radio.
On 10 June, President Volodymyr Zelenskyy announced a competition for two new High Council of Justice members (HCJ). It is the agency responsible for recruitment of judges and ensuring independence of the judiciary.
In Ukraine, there are two institutions tasked with appointment, qualification assessment and disciplinary action concerning judges – the High Qualification Commission of Judges and the High Council of Justice. Currently, all power in the judiciary is granted to judges themselves, or, to be more exact, to these judicial self-government agencies.
In 2016 the reform started, the Parliament voted for amendments to the Constitution and passed the new law on judiciary, while the President was granted the symbolic right to sign orders on appointment of new judges. But they didn’t take into account the fact that most “old” judges are not interested in rebooting the judiciary, and the statistics of the qualification assessment of the past three years, unfortunately, shows that there is little new about this branch. 92% of the judges who have taken the qualification assessment have stayed in office.
Only 15 judges were dismissed.
That’s true. 15 judges were fired, and 144 were recognized as “unfit for office”; no final decision has been made on them, however. After issues started with certain members of the HQCJ and the HCJ and their authority, the HQCJ generally avoids making decisions on judges with negative opinions of the Public Integrity Council (PIC). Usually because they don’t really have enough votes.
You will recall that the PIC was created in 2016. It was meant to oversee the judiciary and verify judges for integrity and professional ethics. At the same time, their conclusions are not binding.
Despite the significant public outcry, the post-revolution environment and the pro-European majority in the Parliament, nobody wanted to let courts “roam free,” because it makes practical sense to have easily controllable judges. This can be observed looking at Kyiv Administrative Court, which proves loyal to whatever administration is in office. Reboot of the judiciary is one of the key steps we expect from the new Parliament. We expect relevant draft laws to be submitted this fall.
How should the whole system be rebooted?
There is a mechanism that allows to reboot judicial self-government agencies – amending the Law “On Judiciary and the Status of Judges,” submitting a draft law on changes to HQCJ formation procedure and amending the Constitution to reform the HCJ. The HQCJ can either remain a separate legal entity or become a qualification commission under the HCJ to avoid double authority over certain issues.
It is possible to recover the credibility of the HQCJ by changing the selection process. Representatives of the public (professional organizations, lawyers, etc.) should be directly involved in decision-making rather than perform non-binding advisory functions. The Public Council of International Experts should serve as the basic filter for selection of the candidates. That is, first, international experts carry out assessment of the candidates for integrity and professional ethics, and then they form the agency in a new way. We believe that the HQCJ should consist of 16 members: 8 can be selected by representatives of the judiciary and the other 8 – by representatives of specialized NGO.
Judges can vote using the FPTP model with a digital signature to avoid the influence of the “old” judges. The recordings from Kyiv Administrative Court perfectly illustrate how the head of the court can influence regular judges. Courts need to be truly independent, because it is an issue of national security.
So there is an existing effective mechanism and the only thing missing is the political will? As a presidential candidate, Volodymyr Zelenskyy did sign the Agenda for Justice.
Yes, public promises have been given. Now, Deputy Head of the Presidential Office Ruslan Riaboshapka has also claimed that one of the first draft laws of the new Verkhovna Rada will be a draft law on the reboot of the judiciary. We’ll see the final text.
Going back to the HCJ competition. Who applied, and how many candidates were recognized as lacking integrity? Why is this competition important?
The HCJ consists of 21 members, with two appointed on the presidential quota. Now, there is a competition for two vacant seats. Thankfully, there is an independent commission handling the process, and the society can control it. 48 candidates have applied. Automaidan, AntAC, DEJURE and Transparency International Ukraine have analyzed the candidates: the majority of them are not consistent with integrity criteria; they actually fail to explain how they have obtained their wealth.
We really hope that the President will choose not only professional and competent candidates, but those who really comply with all the criteria. If the President says he supports the reboot of the judiciary, this is the first test for him. He can show that he can truly choose independent people and will be personally responsible for his choice. At this stage, even two new HCJ members can already make an impact.
We see how one person can change the situation looking at Anrii Kozlov. He was great in the HQCJ; too bad he fell victim to political conspiracies. He was fired for refusing to compromise and make the “right” decisions in the HQCJ.
Out of 48 candidates, we had no issues with about ten. We urge the President to make his choice among those ten people. There is also a shortlist of ten candidates for the HCJ who will undergo special verification. Unfortunately, the shortlist includes candidates of questionable integrity. We hope that the President will take into account the opinion of the civil society, since reboot of the judiciary is now in his hands. Nobody stops him from making a reasonable decision. Selection of new HCJ members will show whether the new team is actually interested in an effective reform.