Régis Brillat, Special Adviser of the Secretary General of the Council of Europe for Ukraine

02.08.2017 09:00

An important indicator is that Ukrainian people will trust new judiciary as independent, effective and without corruption

Full-fledged justice reform was launched in Ukraine almost a year ago with amending the Constitution, adopting the new laws and announcing a contest to a new Supreme Court. Although the process is still ongoing, we can sum up the first results and evaluate the progress. Régis Brillat, Special Adviser of the Secretary General of the Council of Europe for Ukraine tells how Europe assesses the progress of judicial reform in Ukraine, what achievements can be already highlighted and what points should be paid more attention to.

PEOPLE’S TRUST IN JUDICIAL SYSTEM WILL BE IMPORTANT INDICATOR

- On September 30, 2016, amendments to the Constitution in the area of justice entered into force. It has been a year. Do you see any progress in implementing these amendments?

- As you know, since 1995, when Ukraine became a member of the Council of Europe, our Organization has recommended a full-fledged justice reform in the country to meet the Council of Europe’s standards aimed at ensuring the protection of human rights in the state. Constitutional amendments in the area of justice have a decisive role not only for the judicial system of Ukraine, but also for the historical development of the country and its society as a whole. Evidently, one year is not enough to evaluate the implementation of such global changes in the justice system of a big by territory and population country as Ukraine. At the same time, a number of legislative acts aimed at the implementation of this reform, in particular, the new Law "On the Constitutional Court of Ukraine", new principles of formation and work of the High Council of Justice and the High Qualification Commission of Judges, the process of formation of the new Supreme Court, the draft amendments to the procedural codes of Ukraine gives grounds to consider the significant progress in implementing these amendments.

- Is the judicial reform in Ukraine going in the right direction?

- Directions of the judicial reform in Ukraine are written out, both in adopted amendments to the Constitution of Ukraine in the judiciary field and the Law “On the Judiciary and Status of Judges”. I would say that this is a Roadmap of Ukraine in the area of judicial reform. The Secretary General of the Council of Europe has repeatedly expressed his support for these legislative acts and indicated that they should be implemented in compliance with the European Convention of human rights. During one year, the Ukrainian authorities have been in the process of implementing the provisions of both documents, and international organizations such as the Council of Europe are working with them every day to ensure that this process is conducted in compliance with and respect for human rights and the rule of law. Therefore, I can confirm that the direction is correct, but whether the objective is achieved will be known at the end of the process. On important indicator is that the Ukrainian people will trust the new judiciary as independent, effective and without corruption.

CANDIDATE EVALUATION PROCESS CONDUCTED IN ACCORDANCE WITH EUROPEAN STANDARDS

- For the first time in the history of Ukraine, a competition to the Supreme Court of Ukraine conducted by the HQCJ has been announced in the framework of the reform, which is considered as a significant step forward. Do you track the competition process?

- The Council of Europe does not only follow closely the competition to the Supreme Court of Ukraine, but also supports the High Qualifications Commission of Judges of Ukraine in this process through a technical cooperation. I have closely followed the process over the last 12 months and regularly met the Commission and, in particular, its president, in Kyiv as well as in Strasbourg. My colleagues in charge of cooperation programs in the field of justice reform also cooperate with the Ukrainian stakeholders in this process. This is made easier by the ongoing open and transparent process.

We are therefore eager to learn the result of the process and expect the appointments to be made soon so that the new Court can start functioning.

- By conducting the competition, the HQCJ is governed by the Law of Ukraine "On the Judiciary and Status of Judges", which contains basic provisions regarding the procedure for assessing candidates. Can you comment on the candidate evaluation process?

- As a person who did not directly participate in organizing a competition to the Supreme Court and assessing candidates at this stage, I cannot comment on the evaluation of candidates. At the same time, the HQCJ has developed testing and practical tasks of the competition and conducted psychological tests of candidates on the basis of the methodology formulated by European experts. This demonstrates that the candidate evaluation process was conducted in accordance with existing European standards with a strong requirement of knowledge of the European Convention of Human Right as well as of the caselaw of the European Court of Human Rights.

HQCJ ADHERED TO PRINCIPLES OF OPENNESS AND PUBLICITY DURING CONTEST TO SUPREME COURT

- By conducting this competition, the Public Integrity Council has been established. The purpose of its activities determined by law is to assist the Commission in the assessment of judges and candidates for the position of judge according to criteria of professional ethics and integrity. Are you familiar with a similar practice in Europe? In your opinion, to what extent can the Public Integrity Council influence the formation of the new Supreme Court of Ukraine?

- In order to answer this question, I will use the recent Council of Europe Opinion “On the rules of procedure for the work of the Public Integrity Council”. Our Organization like other international partners of Ukraine realized that to combat a low level of trust in the judiciary, Ukrainian authorities decided to involve a civic body - the Public Integrity Council (PIC) consisting of lawyers, scholars, and journalists – in the process of assessing the integrity of candidates. The abovementioned CoE’s Opinion states that European standards do not prohibit professionals, who can make a useful contribution to assessing candidates for a judge to take part in this process. However, the Opinion emphasizes that the role of these professionals can only be consultative, but not decisive. According to this Opinion, the provisions of Article 88 of the Law "On Justice and the Status of Judges", according to which the High Qualifications Commission of Judges of Ukraine may overcome negative conclusions of the Public Integrity Council on judges or candidates for the position of judge that should be regarded as positive and as such that meets European standards.

- Almost the entire second round of the Contest, the interviews of candidates with the members of the HQCJ and the members of the Public Integrity Council, the results of the voting were broadcast online and even now we can review all these records. From your experience, can this be called sufficient publicity and openness of the competition to the Supreme Court of Ukraine?

- The Ukrainian society expects new SC’s judges to be independent and impartial in the judicial practice throughout their career, and for these principles to be respected also in connection with judges’ recruitment and appointment. It is obvious that the HQCJ has used all available means to adhere to the principles of openness and publicity during the contest to the Supreme Court. The HQCJ reports, coverage of competition statistics, briefings, meetings with civil society, media, international partners are a clear indication of transparency and openness of the competition. I must point out that broadcasting interviews with candidates or publicizing their files on the Commission's website is not common practice of the member states of the Council of Europe. At the same time, we understand that these steps are being taken by the Ukrainian authorities in order to restore full confidence in the justice system, and therefore these measures can be considered to be effective at this stage.

FINAL OBJECTIVE IS TO IMPROVE DAILY LIFE OF UKRAINIAN POPULATION

- During the final stage of the competition, we observed 30% of non-judge participants (lawyers, scholars, aggregate seniority). Do you think this figure is enough to talk about renewal the Supreme Court of Ukraine?

- This happened because the amendments to the Constitution and the new Law “On the Judiciary and the Status of Judges” provided for the establishment of the new Supreme Court on a competitive basis. According to the new legislation, both judges of any court and experts from outside the system (lawyers and scholars) have the possibility to participate in this competition. This will allow a significant renewal of the Supreme Court.

- Explain how competition for Supreme Court is held in the Council of Europe. Do they have certain expectations and do they support the methodology of conducting the competition?

- The Council of Europe carefully observes the way in which judges of our member-states are recruited. This is a very sensitive subject as it has an impact on the independence that judges enjoy when performing their functions. The European standards in this area are not based on one or more specific procedures but make the conformity of states’ choices dependent on the existence of sufficient safeguards against the risk of appointments, which are not based on objective criteria. As a result, each of the Council of Europe member states applies a different recruitment methodology. It is important that the authorities, which are competent for the recruitment of judges enjoy enough independence.

The process of competition for Supreme Court in Ukraine was organized by the High Qualification Commission of Judges that comprised mostly of judges, who were elected by judges. The HQCJ is a guarantee of the quality of recruitment procedures in terms of objectivity.

The final objective of the process is that the new Supreme Court will improve the daily life of the Ukrainian population and ensure full respect of the Council of Europe’s three pillars: democracy, rule of law and human rights. It is therefore expected that the appointment of judges to the Supreme Court will constitute an essential step towards the realization of this objective.

Olena Mihachova, Kyiv

, Kyiv