NGOs welcome the President’s initiative to restart the High Qualifications Commission of Judges (HQCJ) and to involve international experts in the process. At the same time, the positive trends can be offset by significant shortcomings present in the law draft.
The law draft no. 1008, proposed by Volodymyr Zelenskyy, provides for a complete renewal of composition of the HQCJ and gives a key role to the international experts in this process. Six months ago, the international experts were able to secure the integrity of the members of High Anti-Corruption Court, therefore we are convinced that they will contribute to the formation of HQCJ based on integrity.
The presidential law draft also provides for a mechanism to control the incumbent members of the HQCJ and the High Council of Justice (HCJ). Thus, it is proposed to create an ethics commission made of three international experts and three HCJ members. The task of the commission is to monitor the integrity of the members of the HQCJ and the HCJ. If facts of misconduct are revealed, the ethics commission will be able to initiate the dismissal of such member.
However, in order to initiate the dismissal of a HQCJ or HCJ member failing to meet the integrity principles, such decision must be supported by at least one HCJ representative on that commission, and the final decision on dismissal is taken by the HCJ itself. It is doubtful that HCJ members will vote for the dismissal of their own colleagues. Therefore, in order for the ethics commission to be effective, the role of international experts should be strengthened as it was during the selection of judges for the High Anti-Corruption Court.
Also, the bill does not eliminate the problem of hundreds of unfair judges keeping their post as they have already undergone a qualification evaluation, while the procedure for selecting judges of the Supreme Court has not been determined. The approval of the regulations of newly elected HQCJ by the current HCJ creates the risks of setting artificial obstacles to the HQCJ activities and its excessive dependence on the position of the HCJ.
Therefore, we propose the minimal necessary stipulations:
– to provide for the international experts to have a majority (4 out of 6) in the selection commission and the ethics commission;
– to establish the rule whereby an ethics commission’s initiative to dismiss a HCJ / HQCJ member failing to meet integrity principles may be rejected at a special joint meeting of HCJ members and international experts, provided that at least two international experts support such decision;
– to obligate the ethics commission to verify all members of the incumbent HCJ for compliance with their criteria of integrity – within 30 days after the law takes effect;
– to provide for the possibility of reviewing the results of the qualification assessment of judges who are subjects of reasonable doubts regarding their integrity;
– to enable the approval of the work regulations for the HQCJ by the HQCJ itself after its re-election;
– to establish that integrity in the selection of judges of the Supreme Court is verified by conducting an interview according to the rules of judges’ qualification evaluation, and to ensure the number of judges sufficient for resolving disputes under conditions of current workload.
We are convinced that only such changes will help to achieve the purpose of the law draft and we urge the members of the Verkhovna Rada Committee on Legal Policy to initiate the corresponding amendments to the Law Draft No. 1008.
Anticorruption Action Center
Transparency International – Ukraine
Center for Policy and Legal Reform