Civil society organizations welcome the President’s initiative to reboot the High Qualification Commission of Judges (HQCJ) and to engage international experts in this process. At the same time, however, the benefits may be invalidated by the significant drawbacks contained in the draft law.
Draft law No. 1008, submitted by Volodymyr Zelenskyy, stipulates complete replacement of HQCJ members and grants the crucial role in this process to international experts. It was they who ensured that the High Anti-Corruption Court Judges were of unquestionable integrity, thus we believe they would also be able to ensure the integrity of the HQCJ.
The presidential draft law also stipulates the oversight mechanism for already elected members of the HQCJ and the HCJ. It is proposed to create an ethics commission composed of three HCJ members and three international experts. The Commission is designed to control the integrity of HQCJ and HCJ members themselves. If any misconduct is identified, the Commission may initiate the dismissal of such a member.
However, to initiate the dismissal, the decision needs to be supported by at least one HCJ member on the Commission, and the final decision is made by the HCJ itself. It is hard to imagine HCJ members voting against their own colleagues. To make the Ethics Commission effective, it is necessary to strengthen the role of international experts, as was the case with recruitment of HACC judges.
Moreover, the draft law does not eliminate the problem with hundreds of dishonest judges still in office after unfair qualification assessment, and the procedure for selection of Supreme Court judges is not established. The fact that the current HCJ approves the regulation on the newly elected HQCJ creates the risk of artificial obstacles in the activity of the HQCJ and its increased dependence on the HCJ’s stance.
Thus, at the very least, we suggest the following:
- To ensure that the majority of the Ethics Commission and the selection board (4 out of 6) are composed of international experts;
- To establish the rule that the initiative to dismiss a dishonest member of the HQCJ or the HCJ can be rejected only at a special joint meeting of HCJ members and international experts provided that at least two international experts support the decision;
- To oblige the ethics commission to verify the integrity of all current HCJ members within 30 days of the law coming into effect;
- To provide the opportunity to reconsider the results of the qualification assessment of judges if there are reasonable doubts concerning their integrity;
- To provide the HQCJ with the right to approve its own regulation after re-election;
- To establish that the integrity of potential Supreme Court judges is verified at an interview under the same rules as qualification assessment of judges and to ensure there are enough judges to examine cases rapidly taking into account the workload.
We are convinced that only with such changes can the draft law fulfill its purpose and urge members of the Verkhovna Rada Committee on Legal Policy to initiate the respective amendments to draft law No. 1008.
Anti-Corruption Action Center
Centre of Policy and Legal Reform
Transparency International Ukraine