The judicial reform, one of the most complex and vital reforms for Ukraine, is continuing. It is difficult to overestimate its meaning, since public trust in judges is one of the lowest among state bodies. Last year, Ukraine elected a new Supreme Court, which was created for the first time in transparent competitive procedures by the High Qualification Commission of Judges of Ukraine (HQCJ). Now the HQCJ should evaluate the work of approximately 5,300 judges in terms of their suitability for their jobs according to criteria of competence, professional ethics and integrity.
The Public Integrity Council (PIC) was created in 2017. Its purpose, according to the law, is to assist the HQCJ in determining the compliance of judges with the criteria of ethics and integrity by providing its opinions or information on judges for the purpose of evaluation. However, at the end of March, the PIC stated that it would stop participating in the process on the qualification evaluation of judges, because, according to it, the HQCJ made changes to its rules of procedure, which limited the activity of the PIC. The High Qualification Commission of Judges of Ukraine, in turn, stated that it did not refuse to cooperate with the Public Integrity Council, because its conclusions are important to the commission and that the amendments to the HQCJ's rules of procedure were made in order to improve cooperation with the PIC based on the recommendations of European experts. The commission also stated that, according to the law, withdrawal of the PIC would not affect the legality of HQCJ decisions. In addition, according to the Council of Europe's opinion on the rules of procedure the Public Integrity Council of April 10, 2017, European standards do not prohibit the involvement in this process of professionals who can make a useful contribution to evaluating candidates for judges, but these professionals carry out only an advisory function.
On March 27, the High Qualification Commission of Judges continued to conduct interviews with judges without the Public Integrity Council, while a PIC member appealed to the Supreme Court to recognize as unlawful and ineffective the provisions of the HQCJ's rules of procedure.
Ukrinform discussed these and other problematic issues in the process of updating the judicial system in Ukraine with Chairman of the High Qualification Commission of Judges of Ukraine Serhiy Koziakov.
Q: Can you explain in more detail the reasons for a conflict with the Public Integrity Council? What amendments were made by the High Qualification Commission of Judges of Ukraine to its rules of procedure, which resulted in the withdrawal of PIC members from the evaluation process?
A: It is information noise that is stirred up for a certain purpose. According to Article 87 of the law "On the Judicial System and the Status of Judges," the Public Integrity Council is created to facilitate the work of the High Qualification Commission of Judges, not to replace our functions, not to manage the commission, but to facilitate the work of the HQCJ. It is extremely important to realize that all other relations are beyond the scope of the law. We carry out or have to carry out joint work with the PIC as part of procedures on the qualification evaluation of judges or candidates for judges. These procedures are established only by the HQCJ, therefore the rules for submitting documents within the procedure are at the discretion of the commission.
Just imagine, you submit documents for a competition. The terms of the competition indicate how these documents should look and when to submit them. For some reason you do not have questions to the body that established the rules, don't you? You may be dissatisfied with them, but you have to comply with them. The same applies to any other documents that arrive at the body that carries out respective procedures. This is especially true for auxiliary bodies without an independent status that were created to facilitate the activities of this body. The same situation is here - the rules of procedure of the HQCJ set requirements for providing information and conclusions in advance (ten days before the interview), the signing of documents by all members of the PIC who participated in their adoption, and the provision of judges with the opportunity to explain the facts revealed by the PIC. These are simple conditions that are contained in the recommendations and reports of the Consultative Council of European Judges (Opinion No. 17), the Council of Europe, the Bureau of Diplomatic Institutions and Human Rights/OSCE. The same conclusions also contain rather rigid recommendations for giving a judge the right to respond in the event of complaints against him.
It is also important to understand what the commission is. The commission is a state body in the judicial system.
The commission is a collegiate body consisting of 16 members. Of these, ten are judges or judges in retirement, and six are lawyers or lawyer-scientists. Each judge has dozens of years experience in courts. Lawyer-scientists have dozens of years experience of teaching or representing their clients in courts. The commission's members also include those who participated in the creation of a large number of public associations, dating back to the late 1980s. They also took an active part in their work, including in the late 1980s and early 1990s, during the events of the Orange Revolution, and during the Revolution of Dignity.
The first mandate of the HQCJ is the selection and training of future judges, as well as the holding of a qualification exam for them, which will be taken into account during competitions for positions in local courts. Last September's testing of candidates for posts of judges could have been included in the Guinness World Records – 4,128 candidates participated in the competition for 700 vacant posts. There were two tests – on the possession of the state language and on the knowledge of law. A total of 700 out of 4,128 scored the required number of points and got the right to study at the National School of Judges. So, we have future candidates for the posts of judges. We have already begun training assistant judges at the National School of Judges. They will study for three months. Other lawyers will study a little longer - the law provides for up to a year, but it may be faster, since the courts urgently need new judges. The number of candidates who participated in the selection already speaks about the level of trust in the HQCJ. These people came from all over Ukraine to take part in the procedures we are currently conducting. It turns out that there were six people competing for one post.
Currently, we have taken a simplistic approach to the task of judicial reform. There are two popular words: "cleansing" and "renewal." Appeals are made: "We need to dismiss as many judges as possible!" And who will administer justice? Just in June-September 2016, 1,600 judges resigned. However, note that they quit not evenly all over the country, they may quit all at once, the entire staff may quit. For example, the resort town of Yaremche now has not a single judge. Can you imagine? I should mention that, as a rule, it takes from 18 to 24 months to prepare a new judge "from scratch." If it's a former assistant, then it goes faster, but still not less than a year. So we can make a conclusion.
The second task of the High Qualification Commission of Judges of Ukraine is to accompany any career movements of judges - either from one local court to another, or from a local court to an appellate court, or when a judge wants to change the specialization. All these career movements are now being conducted on the basis of a competition as part of a procedure called a qualification evaluation. This procedure was introduced after the Revolution of Dignity and it is extremely difficult, compared to other countries in the world. The procedures under which judges received positions in courts in an extremely closed manner three years ago cannot be compared to the present at all. Therefore, we need to talk about our work as a whole, understanding the breakthrough made from the point of reference of reform.
Q: What exactly is included in the qualification of judges? Tests? Exams?
A: The evaluation consists of two stages stated in the law. The first stage is an exam during which the judge takes a test on the knowledge of law and performs the practical task on writing a draft court decision. The exam lasts for seven hours. The test is anonymous, and its code is checked by a computer program. The practical task is also anonymous, but it is checked by HQCJ members.
Every member of the commission is tasked with checking a certain amount of work. The works have a dual code to prevent corruption at the level of interpersonal arrangements. Each work is checked by at least three members of the commission, and the computer automatically displays the average score. If the judge gets at the first stage a score not lower than the one determined by the commission, then he goes further. In the same part of the procedure, the judge undergoes a five-hour psychological test and has a thirty-minute interview with a psychologist.
At the second stage, the commission carries out an interview with a judge on the basis of a judicial dossier study, which includes a detailed candidate's questionnaire, responses from the state authorities to the commission's requests, for example, from the National Agency on Corruption Prevention, the National Anti-Corruption Bureau of Ukraine, the Justice Ministry, the Defense Ministry; exam results; the results of professional activity - how many cases the judge heard, how much was changed, canceled, why they were changed or canceled; information on the existence of disciplinary complaints and the results of their consideration; PIC materials; information from any citizen regarding this judge. There are about 200-300 pages in each dossier. All these dossiers, except for personal data, are available on the HQCJ's website. This information is confidential in other countries.
Q: The PIC says that the HQCJ turned the qualification evaluation into an "assembly line" - 50 judges per day, five minutes per each judge...
A: Such statements, if they sound like this, are either unprofessional or manipulative. Do you know for how long the commission works with a judge as part of qualification evaluation? For five months already. We announced the beginning of the evaluation back in October last year.
Qualification evaluation is carried out in accordance with the judge's position - it is established whether the judge may continue to work or not.
In November-December 2017, psychological testing was conducted for the first 1,000 judges. How does it happen?
Candidates generally take four tests that last for about five to six hours during one day. After the computer fixes the first results in these tests, the psychologist communicates with the judge for half an hour. And then he makes the final conclusion - this is another half an hour. A lot of points depend on psychological tests. After all, the psychologist gives a conclusion according to professional and social criteria and in terms of integrity. Sometimes they write very unpleasant things for the judge. One more hour is needed to check the work. So this is seven hours.
The judge's dossier is studied by several people. Each member of the HQCJ has three inspectors. Each dossier is first studied by an inspector who is an experienced lawyer and then he hands it over to a member of the commission who verifies the draft conclusions, especially if they are meaningful materials from the NABU and the NACP. It lasts for several hours, because 300 pages should be carefully looked through and checked. That is, in total, the evaluation of one judge or a candidate for a judge's position takes 11-12 hours. In addition, there are discussions and then interviews the duration of which depends on whether there was any discrepancy in the documents. Therefore, when they speak about "five minutes," this is at least incorrect...
After all, when the procedure for evaluating the first 1,000 judges already lasts five months, what kind of "five minutes" can we talk about?
Q: The Public Integrity Council also stated that the evaluation procedure was nontransparent, in particular, that the interviews were not broadcast online.
A: It's an absolute lie. We have four panels, and each of them should consider the cases of 16 judges per day - eight before and eight after lunch. At the same time, there is a simultaneous broadcast of the work of all panels on the HQCJ's channel on Youtube. On the first day of the evaluation there was a technical failure on one panel and after the broadcast these interviews were not saved. But the next day, we restored everything and now anyone can watch previous interviews, and, as always, follow the interviews of HQCJ members with judges online. Is a technical failure on one day over a long period of time a fair accusation? I will add that all procedures during the exam are also broadcast on the Internet. Commission decisions on candidates are also made public on the website. We really want members of the Public Integrity Council to return to the level of transparency in their activity, which was observed at least during the competition to the Supreme Court. Now there is a strange situation – a state body acts more transparently than the public.
Q: How long are the interviews? Are there any time norms?
A: On the first day, in one of the panels, some interviews were short, lasting about seven minutes. How does the interview take place? The dossier speaker makes a brief report on a judge, and this takes about two minutes. Before that, other members of the commission are already examining all the materials regarding the judge on the computer screen. If we established that the judge had decent marks for the exam, if there were very few decisions changed or canceled, if the NABU did not find anything, if the PIC did not give us a negative opinion, if the judge heard 10,000 cases for the entire period of his or her work, if there were no disciplinary complaints and no reprimands pronounced, for how long will it be necessary to communicate with him or her? Not for long. We communicate much longer during the interview with those judges who have problems with the quality of their work, with unethical behavior, inconsistencies in income declarations, and so on. We often ask uncomfortable questions and get oral and written explanations, documentary evidence.
I emphasize that this is not a competition where the best one should be chosen. This is an assessment of the suitability for the position occupied, i.e. the position on which the judge has been working for a long time. There are no clearly defined time norms for the interview. As a rule, the HQCJ starts interviews at 09:00 and finishes them at 17:00, sometimes at 19:00. Four panels hear about 50-60 judges per day. Then the colleagues go to the deliberation room, staying there on average an hour or two. This does not mean that all 64 judges successfully pass the qualification evaluation. Fourteen out of 16 judges may successfully pass, one does not pass, and the decision on one more is postponed. Now, following six days of interviews, decisions on 64 judges have been postponed, mainly due to the findings of the PIC, and four judges did not confirm their suitability for the job. There were no conclusions of the PIC on those who did not pass the evaluation. This is a sign of the commission's principled position regarding the quality of the evaluation.
Q: The HQCJ is accused that during these first interviews the conclusions of the Public Integrity Council were postponed and simply not considered because of "illegal" clauses of the HQCJ's Rules of Procedure, according to the PIC.
A: I emphasize once again that the HQCJ's Rules of Procedure are fully in line with the law and recommendations of European experts, so they have to be respected. Before withdrawing from the evaluation process, the PIC managed to provide us with about a hundred conclusions and information on judges. But they should not be anonymous, but signed by those PIC members who voted for them. It is not difficult at all. Together with the PIC, we are participants in the state administrative procedure. All commission members, if they participate in making a collegial decision, should sign its text, even if they were against it. Then why is it difficult for PIC members to do it? The High Qualification Commission of Judges gave the PIC ten days to address shortcomings. These requirements are fairly simple to implement, so that the PIC's documents could help the HQCJ in its work. Therefore, they are now postponed, and we hope that the PIC will still bring them to the state that we could consider them. I want to point out that we also worked out legal options as to how we will take into account the information contained in the conclusions if the PIC does not comply with the rules of our rules of procedure regarding the proper execution of documents.
Q: What are the shortcomings?
A: As I said, the conclusions were not signed by members of the Public Integrity Council who were present at the meetings at which the decisions were approved. The protocols do not include a list of PIC members who were present during their meetings. The protocols also do not contain the name of the judge on whom the conclusion was drawn up. Therefore, we postponed the consideration of all these draft decisions that were provided by the PIC. The thesis that the HQCJ "neglected" the conclusions of the PIC is untrue. Interviews with judges on which there are PIC conclusions were postponed for a certain time and will be scheduled later. Judge for yourself - is there any sign of equality between "postpone" and "neglect"? Of course, it is not forbidden to use harsh words, but it is not serious in professional work.
For example, of the 16 judges whose evaluation is scheduled for one day, only three can have the conclusions of the PIC. The evaluation process on the others is ongoing, it cannot be stopped.
There is one more significant problem. Documents from the PIC can come at 16:00 on the eve of the day of interview with the judges, which begins at 09:00, and, according to the HQCJ, these documents must be submitted ten days before the day of the meeting. Excuse me, but the commission needs time to study the documents.
European experts who have repeatedly investigated the results of the joint work of the HQCJ and the PIC during the competition to the Supreme Court have also repeatedly stressed that in the event of a negative opinion on the judge, the PIC should also provide the judge with the right to a response.
Q: But you are accused of making changes to the HQCJ's Rules of Procedure allegedly "illegally." There is even a claim to the Supreme Court regarding this...
A: These accusations are not true, because the commission has the right to determine the provisions of the rules of procedure. This is how the procedures are conducted, including the terms, order, and requirements for documents. The PIC says that they have their own rules of procedure, and they work according to them. But we do not instruct them how to work. However, there is a limit. The law says that it is the Public Integrity Council that assists us. As soon as the results of their work come to us, the evaluation procedure takes place in accordance with our rules of procedure, to which the HQCJ has the full power to make changes. This is what we did on the basis of the experience gained during the competition to the Supreme Court and the recommendations of experts from the Council of Europe and the European Commission.
Why ten days? Because we have 200-350 pages of dossiers that need to be processed, and we need to check the documents provided by the PIC, draw conclusions and include them in a report. Each commission member still has 60-90 dossiers of this kind. Can they be processed if the opinion of the PIC is obtained right before the evaluation day? Therefore, the fulfillment of the requirements of the HQCJ's Rules of Procedure is a normal attitude to our workflow.
Regarding the work of the HQCJ, I will give the following example. The previous composition of the commission set a record in 2013 - 74 meetings (our work is based on meetings). In 2017, we had 355 meetings. This means that a package of documents is being prepared for each meeting, then we review them, make a decision, and another set of documents is being prepared. If we have such a number of meetings - 355, then we have to calculate the days, hours, take into account the weekends, and predict possible technical failures.
Q: How many PIC opinions on judges does the High Qualifications Commission of Judges take into account?
A: Such predictions for the future cannot be made. For example, we took into account more than 40% of the PIC's opinions during the competition to the Supreme Court. Some candidates who had negative conclusions were not included in the list of winners, while the other part in general stopped participating in the competition before it was completed. But we need to take into account the fact that we had such experience during the competition. The PIC writes an opinion about the judge's unsuitability for the job and posts it on its website. The whole country reads it. The judge begins to provide arguments, and it turns out that not everything mentioned in the text of the opinion is true and reliably confirmed. Sometimes PIC members themselves canceled their opinions, and sometimes the judge came to the meeting and, in the presence of PIC members, provided us with documents stating that the opinion did not correspond to reality. In this regard, European experts recommended that the judge be given the right to a response before the hearing of his or her case at a meeting of the HQCJ, and we also included this in our rules of procedure. For example, it may be so that the name, surname and patronymic of the judge completely coincide with the data of another person who regularly visited Russia. Given the volume of information, the experience of the competition to the Supreme Court, it is clear that such mistakes could be made. Therefore, it was necessary to think how to minimize them, so it was proposed to give the judge the right to a response. The PIC is not strongly opposed to this provision, but says that judges do not always want to provide explanations. We still need to think on the options to solve this problem. In addition, during the formation of the Supreme Court, the PIC canceled its negative opinion in 12 cases, and there is no liability for this. Therefore, when the Public Integrity Council states that the HQCJ should have taken into account all the opinions, we are warning that it is impossible to heed all the opinions, because we have to make a broader analysis of the dossier of the judge than just an opinion, and we are responsible for our decisions before society and the court.
Pay attention to one more point. In order to disagree with the opinion of the PIC, the HQCJ must overcome it by at least 11 votes out of 16. The PIC has no limitations. They can support a negative opinion on a judge, for example, with six votes out of 17. Is it fair that a public body approves a negative opinion with six votes out of 17, while a state body overcomes it with 11 votes?
Here is an example. The HQCJ had information that a judge's mother owns seven apartments in a very expensive city of Ukraine. We asked him to explain who his mother was. He replied that she is a cleaner in a charity fund. It turned out that she had worked all her life, but the position he named would have given her an opportunity to earn, perhaps, only a two-room cooperative apartment during the Soviet time. We stopped the passage of this judge in the competition to the Supreme Court, and now he has trouble. The procedure of qualification evaluation for the suitability for the post occupied can result even in the loss of a job by a judge, and therefore, lawsuits are possible. I will add another important factor. Ukrainian judges very effectively defend themselves in the European Court of Human Rights. Therefore, we are very attentive to the whole procedure and demand that we and the PIC adhere to the minimum rules on which the fate of a person depends.
Q: The PIC says that the competition to the Supreme Council has taken place, but nothing in the country has changed, meaning that nothing changes during the qualification evaluation.
A: Such a statement is, unfortunately, a frank manipulation of public opinion, because the new Supreme Court, which was created for the first time under transparent competitive conditions, has already issued several thousand first decisions. Their opinion has to be taken into account when making conclusions. It's easy to criticize. Let's look at the results. Maybe we can already praise new judges for something. During the first hundred days of its work, the Supreme Court protected the right of a citizen to proper assistance in connection with pregnancy and childbirth, defended the right of pensioners of the Interior Ministry to recalculate the pension, taking into account the monetary support of the police, the right of a participant in a LLC to peacefully own property, canceled the court fee for cases on the protection of consumer rights in all instances and many others. Judges write judgments in a new, much more understandable manner. Judgments are presented in a more understandable language. Scientists and lawyers who have never worked in the courts now work in the Supreme Court. These are their decisions taken jointly with experienced judges. Let's not even praise the new judges of the Supreme Court! Is there something to blame them for? Do we have any hint of a possible corrupt element in their decisions? If not, then we will continue to watch. Every day. All together.
The new procedure for the qualification evaluation of the entire Ukrainian judiciary, which is currently being held by the High Qualification Commission of Judges, is also unprecedented. All judges in the country are preparing for exams. A total of 21 of judges did not pass them, and four of them did not pass the interviews, that is, a total of 25. A total of around 2,500 judges have resigned over the past two years, including because of their reluctance to undergo such a serious scanning of professional and private life of judges. Can someone call one more example of such a deep procedure, which is called re-certification in other government institutions? I say no. I will also say more. Judges and experts from other European countries who are familiar with how this is happening in our country say confidently that only we do it so thoroughly and decisively.
This is judicial reform in action, and it is expected that it does not always get support. After all, calls for the dismissal of even more judges, or even all of them, sometimes obscure the justification of radical actions that may lead to chaos. It is important to understand that the dismissal of even a great number of judges will not automatically lead to a change in those who are left. Similarly, the arrival of new judges in the system does not mean that they will automatically be professional and honest. A number of deep and systematic organizational measures and time are needed to radically change the court.
The Venice Commission says that judges' qualification evaluation should be limited in time, conducted quickly and effectively with the highest degree of caution. During its conduct, we act exclusively within the legislative framework of Ukraine and international standards. We receive support from international and public organizations, and diplomats. Let's listen to their comments. During the first six days of interviews the evaluation has been passed so far by 70% of judges. Others have not yet passed it due to the conclusions of the PIC and for other reasons. This is a serious result. I stress that the refusal of the PIC to perform its auxiliary functions in the course of qualification evaluation of judges, according to the law and opinions of international organizations, does not affect the legality of the decisions of the HQCJ and the evaluation process itself. Undoubtedly, working in tandem would be more effective. But for this purpose, the PIC should be more responsible - sign its decisions and protocols and submit documents on time, provide judges with the opportunity to explain the facts revealed by the PIC.
We invite members of the Public Integrity Council to be allies, rather than opponents in the process of rebooting the judiciary, as stipulated by the law of Ukraine "On the Judicial System and the Status of Judges." I emphasize that we are conducting a dialogue with the PIC at different levels, including with the assistance of international donors. A frank conversation is always the best form of communication than the language of aggressive confrontation. We are doing one thing, aren't we?
The interview was taken by Oleksandr Trokhymchuk
Photo by Pavlo Bahmut