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December

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc.

If you want to receive expert Points for the last week of the current month every Tuesday by mail, please send an e-mail to doboni@pravo.org.ua (Mariana Doboni, Сommunication manager).

Political Points for 16 – 23 December 2019

Political Points for 9 – 16 December 2019

Political Points for 2 – 9 December 2019

 

Political Points for 16 – 23 December 2019

Opinion of the Constitutional Court of Ukraine on the Draft Law on Amending the Constitution of Ukraine
(concerning reduction of the constitutional composition of the Verkhovna Rada of Ukraine and establishment of the proportional electoral system)

1. Description of the legal situation

On December 16, 2019, the Constitutional Court of Ukraine issued a positive opinion in the case on the compliance of the draft law on amending Articles 76 and 77 of the Constitution of Ukraine (concerning the reduction of the constitutional composition of the Verkhovna Rada of Ukraine and the establishment of the proportional electoral system) (Reg. No. 1017) with the requirements of Articles 157 and 158 of the Constitution of Ukraine. However, in paragraph 2 of the resolution part of the Opinion, the CCU expressed its legal position, stating as follows:

- the Constitution of Ukraine must establish clear and unambiguous provisions that the people's deputies of Ukraine are elected on the basis of common, equal and direct voting right by secret ballot;

- determination of the type of electoral system, its features and characteristics is a matter of political expediency and must be decided by Parliament in accordance with its constitutional powers, provided that the constitutional principles and democratic standards of organization and holding of elections are observed, and therefore there is no need (imperative requirement) to stipulate the type of electoral system in the Constitution of Ukraine;

- the proposed provision in draft law on the reduction of the constitutional composition of the Verkhovna Rada of Ukraine should be considered in conjunction with other provisions of the Constitution of Ukraine, which determine a certain (specific) number of the people's deputies of Ukraine, and therefore, when making such changes, due proportionality and the systematic nature of all provisions of the Constitution of Ukraine should be maintained;

- if the Verkhovna Rada of Ukraine approves the proposed draft law, there will be a gap in time between the moment (date) of termination of powers of the Parliament and the moment (date) of their acquisition by the newly elected Parliament, which will violate the constitutional principle of continuity of legislative power.

2. Respective authorities counter-point/argument

-

3. CPLR assessment of the authorities counter-point

-

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine "On the Constitutional Court of Ukraine", Rules of Procedure of the Verkhovna Rada of Ukraine

5. CPLR expert opinion

Opinions of the Constitutional Court on cases concerning the constitutional submission of the Verkhovna Rada of Ukraine on any draft laws amending the Constitution of Ukraine are binding on the Parliament.

We recommend the Verkhovna Rada to take into account the legal positions of the CCU, which are indicated in the resolution part of the Opinion. Therefore we recommend further elaboration of this draft law, in particular, to eliminate the contradiction between paragraph 17 of Section XV "Transitional Provisions" of the Constitution of Ukraine, which is proposed to supplement the Basic Law, and the current provisions of part 1 of Article 90 of the Constitution of Ukraine on the termination of powers of the Verkhovna Rada of Ukraine, as well as to provide for the respective proportionate number of People's Deputies for the right to address the Constitutional Court of Ukraine with a constitutional submission, which would be consistent with the change in the quantitative composition of the Verkhovna Rada of Ukraine and (for example, one-tenth of the composition Verkhovna Rada of Ukraine).

The Verkhovna Rada may then proceed with consideration of the draft law No. 1017 after receiving a new opinion of the CCU on the compliance of the draft law with the requirements of Articles 157, 158 of the Constitution.

In order to avoid cases of the constitutional changes initiated by the President of Ukraine, which are not in conformity with the principles of the rule of law, separation of powers, the principles of a democratic state with the rule of law, and which, if implemented, threaten the constitutional order of the state, rights of a human and citizen, any amendments to the Constitution must be prepared in an open mode with a comprehensive expert discussion.

 

Negative Opinion of the Constitutional Court of Ukraine on the Draft Law on Amending the Constitution of Ukraine concerning the powers of the President of Ukraine to establish independent regulatory authorities, the NABU, and to appoint and dismiss the Director of the NABU and the Director of the SBI

1. Description of the legal situation

On December 16, 2019, the Constitutional Court of Ukraine issued a negative opinion in the case of compliance of the draft law amending Article 106 of the Constitution of Ukraine (concerning the powers of the President of Ukraine to establish independent regulatory bodies, the National Anti-Corruption Bureau of Ukraine, appoint and dismiss the Director of the National Anti-Corruption Bureau Ukraine and the Director of the State Bureau of Investigation) (Reg. No. 1014) with the requirements of Articles 157 and 158 of the Constitution of Ukraine. Although the amendments proposed in the draft law are not aimed at liquidating independence or violating the territorial integrity of Ukraine, the CCU draws attention to the fact that the adoption of this draft law will lead to the establishment at the constitutional level of unspecified limits of powers of the President of Ukraine, will cause the problem of separation of the areas of activity of different authorities (in particular, the President of Ukraine and the Cabinet of Ministers of Ukraine), will cause a violation of the system of checks and balances between branches and bodies of state power, which is a threat to human and citizen's rights and freedoms:

- indirect subordination of the NABU and the SBI to the President of Ukraine will create a threat to the independence of these bodies, will lead to concentration of the executive power with the President of Ukraine, his competition with the executive authorities, and consequently, to neglecting the guarantees of human and citizen's rights and freedoms;

- granting the President of Ukraine the right to create additional bodies that can regulate the activities of economic entities without specifying the boundaries and areas of authority of such bodies, is the creation of a parallel executive branch subordinated to the President of Ukraine, which contradicts the principles of due governance and the form of state governance defined by the Constitution of Ukraine.

2. Respective authorities counter-point/argument

-

3. CPLR assessment of the authorities counter-point

-

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine "On the Constitutional Court of Ukraine", Rules of Procedure of the Verkhovna Rada of Ukraine

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

According to the Constitution of Ukraine, the absence of a positive opinion of the Constitutional Court on the draft law on Amending the Constitution of Ukraine makes it impossible to further consider and approve this draft law by the Verkhovna Rada. We recommend to the President of Ukraine as a subject of the right of legislative initiative, who introduced this draft law, to withdraw it.

In order to avoid cases of the constitutional changes initiated by the President of Ukraine, which are not in conformity with the constitutional principles of the rule of law and the principles of a democratic state with the rule of law, and which, if implemented, threaten the rights of a human and citizen, any amendments to the Constitution must be prepared in an open mode with a comprehensive expert discussion.

 

Presidential Working Group on Judicial Reform considered the Draft Law on Improving Justice Legislation, but due to the absence of quorum, it was unable to approve it

1. Event

On December 20, 2019, the Working Group under the Legal Reform Commission considered the draft Concept for the improvement of the legislation on the judicial system, the status of judges, the judiciary and related institutions. However, in the course of the consideration, the number of the Working Group members has been decreasing and in the end of the meeting, less than a third of the members remained, with a quorum of more than half of the membership.

Specific suggestions include:

  1. Reduction of the powers of the Grand Chamber (now the Senate) in favor of the Courts of Cassation within the Supreme Court;
  2. creation of a High Administrative Court and a High Court for the Protection of Competition as courts of first instance to hear cases with higher authorities respectively (they will take over the jurisdiction in such cases from the District Administrative Court and the Supreme Court) with the participation of the Antimonopoly Committee;
  3. introduction of a jury trial in the form of a jury that will decide the person's guilt in committing particularly serious crimes;
  4. introduction of compensation payment to participants in the proceedings for violation of reasonable terms of consideration of cases;
  5. establishment of a mechanism for monitoring the lifestyle of a judge in connection with the judge's obligation to prove the legality of the property’s sources of origin;
  6. creation of a single disciplinary body for judges instead of chambers in the High Council of Justice, etc.

2. CPLR Assessment

Along with positive novelties, in many cases, the Concept contains formulations that are too general and flexible (using such words as improve, revise, optimize, etc.). In some cases, the wording is too specific. All this is the result of different groups lobbying their interests.

The draft Concept does not envisage a reboot of the High Council of Justice, but instead contains provisions on "further development of legislation ensuring the proper implementation of the role of the High Council of Justice as a constitutional body of judicial governance."

Judges, including retired judges being members of the Working Group, have managed to include a very specific provision in the Concept on the removal from the transitional provisions of the Law “On Judicial System and Status of Judges”, which gives the right to judges for life long retirement compensation, calculated on the basis of high pay implemented by this law only after they have worked for three years following the qualification assessment. If this lobbyist idea is implemented, all retired judges, even those who have avoided or failed their qualification assessment, will receive a much larger amount of life long compensation than their salary. Now the amount of their pension is calculated according to the previous law, based on their salary level. Implementation of this provision will result in a huge and unfair burden on taxpayers, an increase in staff shortage due to the retirement of many judges and the lack of personnel pool.

A representative of the National Bar Association objected the provisions aimed at abolishing the fee for consideration of complaints against attorneys, and supported the provisions that would allow the association to control the free legal aid budget currently managed by the Legal Aid Coordination Center at the Ministry of Justice.

At present, this document cannot be considered as a clear guide to complex and meaningful changes, in particular because the majority of the Working Group members are representatives of the bodies to be reformed, who are interested in maintaining the status quo.

 

The Grand Chamber of the Supreme Court noted that serving a judge's suspicion can be done by power of attorney

1. Event

On December 11, 2019, the Grand Chamber of the Supreme Court decided in the case on the determination of the subject matter of serving a notice of the judge's suspicion.

According to the results of the consideration, it was stated that the Prosecutor General or his deputy may delegate the authority for the delivery of notice of judge’s suspicion that was approved (drafted) and signed by him to an official authorized to act in a specific criminal proceeding.

The Grand Chamber considers that the service of a procedural document (notice of suspicion), as well as the notification and clarification (if necessary) of the suspect's rights are the final steps in the completion of the judge's suspicion notification procedure. However, the mere delivery of the text of a notice of a judge's suspicion to another subject, provided that it has been accepted, verified, drafted and signed by an authorized official under Article 481 of the CPC of Ukraine, does not violate the guarantee of judicial independence. After all, the guarantee of the independence of judges is ensured by the fact that this is the Prosecutor General or his deputy who checks the grounds for reporting a judge's suspicion, drafts it and signs it.

2. CPLR assessment

The stated position of the Grand Chamber is quite logical and substantiated. Special procedures for judges and other so-called special subjects have a specific purpose, which is to establish an additional mechanism for verifying the existence of grounds for prosecuting a judge in criminal proceedings. Therefore, as the Grand Chamber rightly observed, this mechanism works and exhausts itself in the process of drafting and signing the text of the suspicion notice. In turn, the delivery of such a notice is already a technical process that does not include an additional level of guarantee for a judge.

By this decision, the Grand Chamber of the Supreme Court has changed the recent judicial practice to justify judges accused of a crime due to lack of duly served suspicion of committing a crime (in many cases, the courts explained that the serving of a judge's suspicion had to be done personally by the Prosecutor General or his deputy).

 

Law “On the Status of People's Deputy”, the CPC of Ukraine and the Rules of Procedure of the Verkhovna Rada of Ukraine have been brought in line with the new version of Article 80 of the Constitution of Ukraine

1. Event

On December 18, the Verkhovna Rada passed the Law "On Amending Certain Legislative Acts of Ukraine to bring them in Line with the Law of Ukraine "On Amending Article 80 of the Constitution of Ukraine on the Immunity of People's Deputies of Ukraine”. It establishes specific forms of legal responsibility for a people's deputy of Ukraine, namely the specific rules for the beginning of a pre-trial investigation, notification of suspicion, detention, election of a preventive measure, conducting investigative actions.

2. CPLR assessment

According to Article 80 of the Constitution of Ukraine, "the People's Deputies of Ukraine do not bear legal responsibility for the results of voting or oral statements in the parliament and its bodies, except for responsibility for insult or defamation". Compared to this provision, the Verkhovna Rada of Ukraine has unreasonably expanded the range of situations when the people's deputies of Ukraine do not bear legal responsibility, extending them also to "statements in the exercise of parliamentary powers". Firstly, it does not take into account that the legislation does not contain a clear definition of the concept of "parliamentary powers" and their comprehensive scope, and Article 6 of the Law "On the Status of the People's Deputy of Ukraine" indicates only certain activities of the people's deputy of Ukraine. Secondly, with such wording in effect, the people's deputies of Ukraine cannot be held liable for any actions related to the dissemination of false information, threats and calls provided by many articles of the Criminal Code of Ukraine and the Code of Administrative Offenses of Ukraine.

The fact that, under the new Law, the Prosecutor General has an exclusive power to enter into the Unified Register of pre-trial investigations information that may testify to a criminal offense by a people's deputy of Ukraine, and to approve a petition (to allow a detention, to elect a preventive measure of holding under custody or house arrest, measures that, by law, restrict the rights and freedoms of a people's deputy of Ukraine, the consideration of which is attributed to the powers of an investigating judge), greatly increases the likelihood of selective justice that is politically motivated, since in Ukraine, the Prosecutor General is appointed not through a professional selection and upon submission of a selection commission, but in a purely political way.

To some extent, prosecution of the people's deputy of Ukraine may become difficult, because, as a rule, the investigating judge is obliged to consider a petition for permission to elect certain types of preventive measures, to apply other measures that restrict the rights and freedoms of the people’s deputy of Ukraine with the obligatory participation of the latter (except for covert investigative actions and search).

On the other hand, the positive innovation is that the Law allows the detention of a people’s deputy of Ukraine without the permission of the investigating judge, if the former was caught during the commission or immediately after the commission of: a) a grave or particularly grave crime related to the use of violence, or b) a crime that caused the death of a person. In addition, any investigative action, for which the law does not require the permission of the investigating judge, can be carried out without restrictions.

 

Political Points for 9 – 16 December 2019

High Council of Justice jeopardized the formation of the High Qualifications Commission of Judges of Ukraine

1. Event

On December 10, the High Council of Justice (HJC) approved the Regulation on holding a competitive selection for the position of a member of the High Qualifications Commission of Judges of Ukraine (Regulations), and already on December 12 it announced a corresponding competition.

2. CPLR assessment

In political points for December 2-9, 2019, the CPLR experts expressed critical comments on the published draft Regulation and called on the HCJ to re-develop the competitive selection procedure. However, in the approved version of the Regulations, the HCJ further exerted its own influence on the results of the competition to the High Qualifications Commission of Judges of Ukraine (HQCJ), by neglecting the role of international experts. This may indicate the HCJ's intention to manipulate the results of the competition.

The CPLR experts analyzed the approved Regulation and identified its three key shortcomings:

1) inconsistency with the Law on Judicial System and Status of Judges;

2) creation of external opportunities for manipulation with the results of the competition;

3) nullification of the role of international experts in the selection of the HQCJ members.

Inconsistency of the Regulation with the Law on Judicial System in the future may lead to a judicial contestation of the competition results. In addition, in the long run, legal defects in the competitive procedure affect both the independence of each HQCJ member (due to the illegality of election, his/her powers may be terminated ahead of schedule) and the legality of the procedures conducted by the commission (qualification assessment, selection of judges, etc.).

In this case, international and foreign organizations are not likely to be interested in delegating their representatives to the selection commission.

In this regard, it is necessary to legally deprive the HCJ of the opportunity to influence the regulation of the competitive procedure for the selection of the HQCJ members. The procedure for conducting the competitive selection may be determined by the selection commission itself.

 

Political Points for 2 – 9 December 2019

Negative Opinion of the Constitutional Court of Ukraine on the Draft Law on Amending the Constitution of Ukraine concerning the Commissioners of the Verkhovna Rada of Ukraine for Compliance with the Constitution of Ukraine and Laws in Certain Areas

1. CPLR expert opinion

On November 20, 2019, the Constitutional Court of Ukraine issued a negative opinion in the case of the conformity with the requirements of Articles 157 and 158 of the Constitution of Ukraine of the draft law on amending Articles 85 and 101 of the Constitution of Ukraine (Reg. No. 1016) concerning the Commissioners of the Verkhovna Rada of Ukraine for compliance with the Constitution of Ukraine and laws in certain areas.

Despite the fact that the amendments proposed in the draft law are not aimed at eliminating independence or violating the territorial integrity of Ukraine, the Constitutional Court of Ukraine draws attention to the fact that these amendments do not comply with the constitutional principles of the rule of law and separation of powers, the principles of a democratic state with the rule of law and in the case of implementation, they will endanger the rights and freedoms of a human and citizen.

2. Respective authorities counter-point/argument

The problem of exercising human and citizen's rights and freedoms is, without exaggeration, the most pressing of social problems in Ukraine. That is why it is important to create an effective and efficient parliamentary oversight mechanism for ensuring the observance of human and citizen’s rights and freedoms in Ukraine, since it is obvious that one official - the Commissioner of the Verkhovna Rada of Ukraine for Human Rights, who is currently entrusted with this function, cannot effectively perform these powers.

3. CPLR assessment of the authorities counter-point

The CPLR has repeatedly drawn attention to the inappropriateness of adopting any amendments to the Constitution of Ukraine without outlining the comprehensive concept of such reform. Fixing the constitutional and legal status of any commissioners of the Verkhovna Rada of Ukraine in the Constitution of Ukraine without specifying their powers is a methodologically incorrect step from a technical and legal point of view. In addition, it is unclear how the Commissioner for Human Rights interacts with the Commissioners for compliance with the Constitution of Ukraine and laws in certain areas.

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine "On the Constitutional Court of Ukraine", Rules of Procedure of the Verkhovna Rada of Ukraine.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

According to the Constitution of Ukraine, the absence of a positive opinion of the Constitutional Court of Ukraine on the draft law on amending the Constitution of Ukraine makes it impossible for the Verkhovna Rada of Ukraine to consider and approve this draft law further. We recommend the President of Ukraine, as a subject of the right of legislative initiative, who introduced draft law, to withdraw it.

In order to avoid cases of the President of Ukraine initiating constitutional changes that do not conform to the constitutional principles of the rule of law and separation of powers, the foundations of a democratic state with the rule of law and, if implemented, threaten the rights and freedoms of an individual and citizen, any amendments to the Constitution must be prepared in a public way involving a detailed expert discussion.

 

Legal position of the Constitutional Court of Ukraine on the draft law amending Article 93 of the Constitution of Ukraine (on the legislative initiative of the people)

1. CPLR expert opinion

On November 13, 2019 the Constitutional Court of Ukraine issued a positive opinion in the case on the conformity of the draft law on amending Article 93 of the Constitution of Ukraine (concerning the legislative initiative of the people) (Reg. No. 1015) with the requirements of Articles 157 and 158 of the Constitution of Ukraine. However, in paragraph 2 of the resolution part of the Opinion, the Court expressed its legal position, stating:

- firstly, in accordance with part 2 of Article 5 of the Constitution of Ukraine, the people are the bearer of sovereignty and the sole source of power in Ukraine, and therefore they cannot be determined as a subject of a legislative initiative without the establishment in the Constitution of Ukraine of an adequate number of citizens of Ukraine who have the right to vote, for the implementation of such a legislative initiative; however, the provision proposed in the draft law makes it impossible to implement it;

- secondly, while establishing the cases and the procedure for exercising the right of legislative initiative, the Verkhovna Rada of Ukraine cannot restrict the rights of legislative initiative of any of the subjects of this right, determined by the Constitution of Ukraine.

2. Respective authorities counter-point/argument

-

3. CPLR assessment of the authorities counter-point

-

4. Related legislation/instructions which require the authorities act in a certain manner

Constitution of Ukraine, Law of Ukraine "On the Constitutional Court of Ukraine", Rules of Procedure of the Verkhovna Rada of Ukraine

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

The opinions of the Constitutional Court of Ukraine in cases concerning the constitutional address of the Verkhovna Rada of Ukraine on any draft amendments to the Constitution of Ukraine are binding on the Parliament.

We recommend to the Verkhovna Rada of Ukraine to take into account the legal position of the Constitutional Court of Ukraine and, accordingly, to elaborate the draft law on the legislative initiative of the people in order to clearly establish at the level of the Constitution all subjects of the legislative initiative. Then, the VRU should continue consideration of the draft law No. 1015 after receiving the new CCU Opinion on compliance of the draft law with the requirements of Articles 157, 158 of the Constitution.

 

The Venice Commission supported the participation of international experts in the reboot of the judicial governance bodies

1. Event

On December 6, the Venice Commission approved the Opinion on the Law of Ukraine "On Amending the Law of Ukraine "On Judicial System and Status of Judges" and Some Laws of Ukraine on the Activity of Judicial Governance Bodies" No. 193-IX.

The opinion focuses on amendments related to the reform of the High Council of Justice and the High Qualification Commission of Judges; reducing the number of judges of the Supreme Court; disciplinary procedure and judicial remuneration.

The Venice Commission supported the temporary participation of international experts in a selection board for the selection of members of the High Qualifications Commission of Judges and the Commission on Ethics and Integrity. According to the law, these bodies will have a mixed international (three members each) and national (three members each) composition.

“Following the successful model of the anti-corruption law, such a composition fosters the trust of the public and may help in overcoming any problems of corporatism”, stated the Venice Commission (p. 22 of the Opinion).

At the same time, the Venice Commission criticized the new staff cuts of the Supreme Court, generally supporting the institution's reform: “A reform of the Supreme Court can and even should be undertaken once its huge case-load has been reduced” (p. 84). The Venice Commission sees the main problem in the sequence of changes, also paying attention to the risks to judicial independence, when it appears that after the election of new political bodies, they have the discretion to determine which of the judges to hold office.

In addition, the Venice Commision believes that “if there really had been problems in the application of the procedure of appointments of judges, the recommendations of the Public Integrity Council should provide sufficient indications as to which cases would need to be reviewed on an individual basis” (p. 62).

2. CPLR Assessment

Importantly, the Venice Commission welcomed the involvement of international experts in the procedures for reboost of the High Qualifications Commission of Judges and the High Council of Justice, since the problem of corporatism (mutual guarantee) led to the absence of significant positive results in clearing the judicial corps during the previous stages of judicial reform.

In our view, the Venice Commission's opinion is an argument in favor of introducing a mechanism for reviewing the appointments of a part of the Supreme Court judges, which was made by ignoring the facts of unfair behavior stated in the findings of the Public Council of Integrity, instead of mechanically reducing the number the Supreme Court judges.

At the same time, the text of the opinion shows that representatives of the Ukrainian side provided the Venice Commission with incomplete or incorrect information about the context of the problems, which may have affected the accuracy of some of the conclusions. For example, the Venice Commission recommended: “The disciplinary procedure should be simplified by reducing the excessive number of remedies available: against disciplinary decisions of the HCJ, an appeal should lie directly with the Supreme Court and no longer with the Kyiv City Administrative Court and the administrative court of appeal” (p. 85).However, the decision of the disciplinary authority on a judge can now be appealed to the High Council of Justice and then to the Supreme Court.

Instead, the process of forming a new High Qualifications Commission of Judges, as well as the process of clearing the High Council of Justice, could potentially be blocked by a lengthy red tape in the "unreformed" Kyiv District Administrative Court and subsequent instances. In this case, it would be expedient here to consider such cases, if they arise, by the Supreme Court.

 

High Council of Justice has demonstrated its intention to manipulate the results of the competitive selection to the High Qualifications Commission of Judges despite the participation of international experts

1. Event

On December 6, the High Council of Justice (HCJ) announced that the draft regulation on the competitive selection to the High Qualifications Commission of Judges (HQCJ) was undergoing the final stage of discussion. A few days later, one of the information resources published the text of the draft Regulation on the competitive selection for the vacant post of a member of the HQCJ.

2. CPLR Assessment

Provisions of the draft regulation, if the published text is true, contradict the law, their content is based on misunderstanding of the legal status of the selection commission, and the proposed procedure for the competitive selection of the HQCJ members aims at nullification of the role of international experts and creating opportunities for external manipulation with the result of the competition.

According to the CPLR experts:

1) the HCJ unlawfully determined that the future composition of the HQCJ should include a majority of judges and established discriminatory conditions for non-judge participants;

2) the HCJ establishes the “auxiliary” nature of the selection commission, in particular it only forms the rating of the contestants; instead, the law stipulates that the selection commission shall select one candidate from among the participants of the competition for each vacant position of the HQCJ member;

3) the HCJ seeks to obtain a number of unlawful powers and rights:

  • power to approve the rules of procedure of the selection commission;
  • power to approve the decision of the selection commission on the admission of candidates to the competition;
  • right to refuse the appointment of a candidate recommended by the selection commission (without determining the grounds);
  • authority to re-determine the winner of the competition and appoint him or her to the post of the HQCJ member if the previous winner refused or did not pass a special check.

4) the HCJ, through the introduction of tests and scoring before the interview, nullifies the role of international experts in the evaluation of candidates, because only those candidates who will obtain the minimum number of scores (the leakage of test questions for individual candidates cannot be excluded) will reach the interview stage, while the weight of the interview in the selection procedure is minimal (only 10 out of 80 scores);

5) the HCJ offers a standard of proof "beyond reasonable doubt" for assessing a candidate's integrity, which removes the obligation from the candidate to refute any reasonable doubt about his or her integrity;

6) the HCJ transforms an important legislative safeguard of the veto power of international experts in relation to the candidates into the fiction, as the members of the commission vote during the final ranking when all the contestants have received their scores.

In view of the critical remarks, the procedure for competitive selection needs to be re-drafted, and even better if it is regulated by law.

 

Administrative Court of Cassation of the Supreme Court has nullified the conclusions of the Public Council of Integrity

1. Event

When the HQCJ terminated its work in November 2019, for the entire period of its operation, only 166 judges were found to be ineligible following the qualification assessment, 77 of them did not collect a minimum score based on the results of the assessment, and 89 did not appear at or failed the exam. At the same time, in 2019 the Public Council of Integrity gave 472 opinions on judges' non-compliance with the criteria of integrity and professional ethics.

As of December 9, 40 judges were dismissed by the HCJ for failure to qualify (22 did not pass the exam, 17 did not appear at the exam and only 1 judge was released following the interview).

Recently, the HCJ has been refusing to dismiss judges who have been found ineligible for the position based on the results of the qualification assessment, because it is only motivated by scores (numbers).

These are the results of the qualification assessment of more than 3 thousand judges (another 2 thousands are still being assessed).

The Unified State Register of Judgments promulgated the Supreme Court's decision of November 20, 2019, annulling the decision of the board of the HQCJ concerning judge R. Boyko on sending of the board's decision on the successful completion of the assessment to the plenary composition of the HQCJ in view of the existence of negative opinion of the Public Council of Integrity. The court decision did not enter into force, but in the absence of a new composition of the HQCJ, it may not be appealed.

It should be reminded that the existence of the opinion of the Public Council of Integrity by law requires the HQCJ to consider the case of a judge in plenary.

2. CPLR assessment

Cancellation by the Supreme Court of the decision of the HQCJ regarding the entry into force after consideration in plenary has the consequence of recognizing the judge to have successfully passed the qualification assessment, without passing the plenary procedure determined by law and despite the opinion of the Public Council of Integrity. As similar decisions on other judges were also not motivated by the HQCJ, the position taken by the Supreme Court, when affirmed by the Grand Chamber, could help to avoid the dismissal of judges with the findings of the Public Council of Integrity, for which the HQCJ did not hold plenary sessions (and this is the majority of judges with such findings).

Thus, the practice of the HCJ and the Supreme Court indicates that only those judges who have not appeared for the examination or have shown a low level of knowledge will be dismissed. The criteria of integrity and professional ethics are virtually nullified as requirements for judges. Therefore, there are grounds for introducing new mechanisms for reviewing judges' compliance with these criteria.