The position of the Court of Cassation on certain issues of attestation of the prosecutor’s office

The issue of certification by individual representatives of the prosecutor’s office has been the subject of judicial appeals since the beginning of the reform of the prosecutor’s office.  

Therefore, on May 13, 2021, the Cassation Administrative Court within the Supreme Court, issued a decree on the cassation appeal in the frame of the case on the claim of the prosecutor to the Attorney General’s office. Last year, the prosecutor did not pass certification and he sought a judicial review of the decision on unsuccessful certification of the Personnel Commission to recognize it as illegal and cancel.

The decision of the Court of Cassation was supposed to make a point and form judicial practice on certain issues of the functioning of attestation commissions and certification procedures.

 What happened?

In October 2019, the plaintiff filed an application for transfer to the position of prosecutor in the Regional prosecutor’s office and a statement of intent to become certified. He successfully passed two stages of certification and was admitted to the interview. As a result of the interview, a vote was held to make a decision on successful completion of the certification by the plaintiff. Result: 3 members of the Commission “for”, the other 3 – “against”. Conclusion – the prosecutor failed to become certified. 

Some doubts of the individual members of the Commission regarding the prosecutor’s compliance with the requirements of professional competence, professional ethics and integrity were the basis for voting “against” in accordance with the text of the court’s decision. The courts of the first and appellate instances decided in favor of the prosecutor: they recognized the decision of the Personnel Commission as illegal and canceled it. The Attorney General’s office lodged a cassation appeal.

The Supreme Court has concluded that the decision of the Personnel Commission on the plaintiff’s unsuccessful certification is premature and subject to cancellation.

Based on a detailed analysis of the national legislation and judicial practice, it can be argued that the selection or certification for certain vacant positions is the discretionary power of the Personnel Commission. However, it should be considered that the limits of discretion cannot be unforeseeable and must be subject to external public control. The process of selection or certification, including the decision, as the result of these processes should be clear to both dialogue participants, in particular candidates, and an independent outside observer.

The sufficiency and motivation of decisions on the basis of which the recruitment of prosecutor’s offices is carried out by prosecutors is the key to public confidence in their activities.

When deciding on unsuccessful certification on the grounds of insufficient level of professional competence of the prosecutor, or if there are doubts as to his integrity and professional ethics, the commission should indicate what such conclusions are based on, that is, justify its decision properly. As transpires from the decision, the court did not question neither the legality of the certification, nor the legitimacy and authority of the Personnel Commission in investigating the compliance of individual candidates with the rules of professional ethics and integrity, nor the level of professional competence of the members of the Personnel Commission. 

Instead, the court has rightly drawn the attention to the imperfection of the procedure, in particular, the lack of clear criteria/indicators for collecting, researching and evaluating information necessary for certification purposes. The court also indicated that the conclusions of the Commission on professional incompetence are based only on doubts and subjective perception by the individual members of the commission of the answers provided by the prosecutor in terms of their correctness and completeness.

What is the special feature of this Supreme Court decision?

Therefore, taking into account the above mentioned, it can be argued that when making decisions, the Commission should indicate reasoning, that is, justify this decision with a proper statement of facts and circumstances supporting a particular statement. 

The lack of proper justification for non-compliance of specific candidates with the criteria of professional competence and integrity cannot be replaced by formal reasons or by reference to the “deep inner conviction” of individual members of the commission. Presuming of the evaluative concept, which is a reasonable doubt, as the basis for making a decision, according to the court, not only distorts its validity, but also contradicts the principle of legal certainty, one of the components of which is a clear establishment of the boundaries and procedure for the exercise of power.

According to the conclusions of the Supreme Court, in this particular case the Commission did not indicate any objective arguments that the candidate had a prevalence of private interests over public ones during his work as a prosecutor and the exercise of his professional activities.  

In the context of the court’s conclusions  regarding the groundlessness of the decision by the Personnel Commission, it is possible to draw a parallel with the activities of the Competition Commission as a procedure, which is also somehow connected with changes in the employment situation of the persons involved in it. Commissions – both competitive and personnel – investigate the compliance of certain individuals with the criteria of integrity and professional competence. However, the conditions and consequences of such evaluations vary. The fact is that a competitive selection and certification are fundamentally different processes in nature and purpose, and it would be incorrect to draw analogies between them.

Thus, the term “competition” in the academic dictionary of the Ukrainian language is explained as a competition that allows you to identify the most worthy of its participants. In other words, competitive selection is a competitive and voluntary process that can result in either election to a position or termination of a candidate’s participation in the competition due to unsuccessful passage of one of the stages of the latter. The contestant competes not for an existing position, but for a potential one.

In other words, by participating in the competition, a person does not endanger their current situation, including their current employment, because there is no such consequence of unsuccessful passage of the competition as dismissal. In addition, a person participating in the competition does not have the right to be appointed to a certain position, but he has the right to equal conditions for passing the competition, the right not to be discriminated against, and so on. The contestant in the competition must prove that he or she is the best contender.

 There again, in the dictionary, the term “certification” is described as a conclusion about the professional knowledge and business qualities of an employee. Thus, certification applies primarily to persons who are already working in a position that is relevant for professional verification. Unlike a competition, certification may result in the loss of a job. In the procedure for passing certification by prosecutors, which is repeatedly mentioned in the court decision, it is stipulated that the decision of the Personnel Commission on unsuccessful certification is the basis for issuing an order to dismiss the relevant prosecutor. That is, although certification is carried out to transfer the prosecutor to a higher position, if the latter does not meet the requirements of professional competence, ethics and integrity, there is a potential for dismissal from the actual place of work.  

In this case, since the person undergoing certification was once selected and appointed to the position according to a certain procedure, and also worked in the position for a certain time, it is assumed that the person corresponds to the position held. Consequently, the duty to argue your decision is assigned to the personnel commission conducting certification, if such a commission decides to pass the certification unsuccessfully.

So, the judgement of the Supreme Court on the procedure for the work of the Attestation Commission is a useful source of law, because its conclusions will be taken into account in the future by lower courts, which will help to get a well-established practice on this legal issue. It is important that the court establishes the obligation for the commission to thoroughly argue its decisions based on the results of consideration of issues of professional competence, ethics and integrity regarding the verification of candidates.

You can find a more detailed analysis of the Supreme Court’s position on the exclusive competence of the NACP concerning full verifications of a declaration here.