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Analysis of the draft law on amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" and some legislative acts of Ukraine on the improvement of judicial careers No. 10140-д

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The draft law on amendments to the Law of Ukraine "On the Judiciary and the Status of Judges" and some legislative acts of Ukraine on the improvement of judicial career procedures No. 10140-д of 17.11.2023 (hereinafter referred to as the draft law) simplifies and speeds up the procedure for selecting judges and conducting competitions for positions in courts of first instance. Thus, the draft law abolishes redundant stages and re-examination of selected candidates, significantly shortens the candidate training process from one year to two months, and stipulates that only future judges, and not all candidates, should undergo training.

Adoption of these proposals will allow to quickly fill many vacant positions and significantly save resources that the state previously spent on training hundreds of candidates who, however, did not become judges afterwards.

At the same time, the project did not take into account a number of critical remarks, and some of its provisions are clearly harmful and threaten the implementation of judicial reform in the future. Below is an analysis of such provisions and our recommendations.

The draft law destroys the tool for public participation in the selection and evaluation of judges.

The draft law seeks to remove Article 87 from the Law of Ukraine "On the Judiciary and the Status of Judges" (hereinafter referred to as "the law"). Instead, it proposes ten new articles (Articles 105-1 to 105-10) that will dictate the structure, composition, powers, and duties of the Public Integrity Council (PIC). Regrettably, these provisions do not enhance the PIC's effectiveness in participating in the qualification assessment of judges; in fact, they make the PIC subservient to the High Qualification Commission of Judges (HQCJ) and impede its ability to fulfil its tasks. In particular,

  • Article 105-1 designates the PIC as an auxiliary body of the HQCJ, undermining its independence. Furthermore, Article 105-3 grants the HQCJ the authority to terminate PIC members' powers without safeguards against potential misuse of this power.

  • Articles 105-3, 105-4, and 105-5 complicate the PIC's formation by imposing stricter requirements on participating organisations and candidates, along with establishing a quota for business associations within the PIC. Currently, the legislation does not limit business associations' participation, so the quota appears discriminatory against other public groups.

  • Articles 105-6, 105-7, 105-8, 105-9, and 105-10 regulate in detail the work of the PIC on the search for information and analysis of judges and candidates for judicial positions, as well as the approval of opinions about the non-compliance of judges/candidates with the criteria of integrity and professional ethics, setting excessive requirements and offering neither guarantees and protection against third-party encroachments, nor financial, organisational, and logistical support. Thus, the authors of the draft law demand that the PIC ensures transparency and publicity of its work by announcing meetings in advance, ensuring the openness of all discussions and publishing decisions almost immediately after their adoption; in addition, it is required that the PIC provides judges and candidates with the right to reply, with strict deadlines for submitting opinions to the HQCJ. The proposed version of Part 17 of Art. 79 of the law obligates the PIC to vet competition winners for positions in first-instance courts within 30 days of announcing the results. This raises concerns about the PIC potentially duplicating, either partially or entirely, the functions of the HQCJ in matters pertaining to integrity assessment. Notably, the draft law outlines the PIC's operational requirements but does not provide for remuneration or support, such as a secretariat, for PIC members.

  • The draft law's requirements for quorum during meetings and decision-making, especially the prohibition on using value judgments in findings (Part 6 of Art. 105-10), undermine the PIC's ability to function effectively.

Consequently, these provisions would transform the PIC from an independent public body into one controlled by the HQCJ, rendering it incapable of thoroughly assessing judges and candidates for integrity criteria due to the impossibility of complying with the excessive requirements of the law. This could create a misleading impression of successful cleansing and the quality of judges' renewal, potentially legitimising these outcomes in the public eye.

Additionally, the draft law suggests prohibiting PIC members from publicly evaluating a judge undergoing assessment. This restriction makes it impossible for the PIC to communicate the results of its work to society and defend its decisions.

The draft law allows filling more than half a thousand judicial positions with candidates who have not passed an integrity check.

The draft law envisages the completion of the competitions, which were started by the previous composition of the HQCJ under the old rules. It is about filling 560 judicial positions with candidates who did not pass the integrity check and the decisions regarding which were made by the previous composition of the HQCJ, which failed to renew the judiciary.

The draft law does not take into account the experience of applying moral and psychological testing of candidates and does not offer a solution to problems that arose in the past.

The draft law just proposes Part 1 of Art. 76 of the Law of Ukraine "On the Judiciary and the Status of Judges" should be supplemented with the second paragraph, which provides for the authority of the HQCJ to approve the procedure and methodology for conducting such tests. This provision is quite general, as it permits, but does not mandate, the HQCJ to define the minimum acceptable levels of performance based on relevant criteria for moral and psychological qualities, general abilities, social and psychological skills, and their individual components. It also outlines the process for calculating a candidate's points for the judge position based on test results and the consequences of candidates not meeting the minimum performance standards or exceeding permissible indicators according to the validity scales.

Given the potential challenges in applying and manipulating the results of moral and psychological testing for candidates, it is advisable to include more specific language in the law to prevent future speculation and reduce the risk of arbitrary interpretation of test results by the HQCJ members. Furthermore, it is important to stipulate that the HQCJ's decision regarding these details should be made publicly available through publication.

The draft law gives unjustified advantages in the competition to assistant judges.

The draft law provides for the preference of candidates who have experience/longer experience in the position of assistant judge over candidates who do not have such experience in the case of the same position in the rating. According to the draft law, even during the election of judges of the Supreme Court, preference will be given to candidates who have experience working as assistants compared to other lawyers and scientists who have not worked as assistant judges. In our opinion, in conditions of significant prevalence of corruption and mutual guarantee in the judicial system, as well as the frequent involvement of assistant judges in corrupt and/or other illegal judicial practices, as evidenced by the materials of criminal cases investigated by the NABU, granting assistant judges advantages along with other candidates seems impractical. Such a rule is discriminatory against other candidates and may negatively affect the desire of qualified candidates from outside the judicial system to participate in contests for the position of judge.

The draft law does not fully guarantee the transparency of results for society and candidates.

The draft law introduces a general provision stipulating the HQCJ's responsibility to ensure the transparency of the selection process. It requires the commission to make well-founded decisions based on the results of various stages, such as candidate admission to subsequent competition phases, recommendations, or rejections. However, the draft law lacks specific requirements regarding the transparency of decision-making meetings for candidates and their broadcasting, even though such requirements are in place for the Public Integrity Council.

The draft law does not emphasise the importance of publishing a clear and understandable methodology for evaluating candidates, candidates' works, and evaluations that members of the HQCJ will make. The draft law does not provide for the openness of the decision-making procedure regarding the admission of candidates to the next stages of selection, their recommendation for appointment, and the publication of roll-call voting results.

The draft law threatens to narrow the concept of integrity artificially and thus limit the possibilities for assessing candidates.

The proposed version of Part 6 of Article 83 in the law outlines that the High Council of Justice (HCJ) should approve uniform criteria of integrity after consulting with the HQCJ, the Council of Judges, and the PIC. This provision raises the concern of potentially unjustifiably restricting or narrowing the concept of integrity through the specific criteria set by the HCJ.

However, the draft law already defines the criteria for assessing a candidate's integrity in other sections. For example, in the proposed version of Part 8 of Article 69, it is specified that a candidate for a judicial position is considered decent if there are no reasonable doubts about their independence, honesty, impartiality, incorruptibility, adherence to ethical standards, exemplary conduct in professional and personal life, as well as the legality of the sources of their property and the alignment of their lifestyle and income.

Given that the draft law already defines these criteria, it is unclear what precise task is assigned to the HCJ regarding the establishment of additional criteria. There is a notable risk that the HCJ might create an exclusive list of non-compliance indicators, which could significantly narrow the integrity concept and allow candidates with lower integrity to pass the assessment successfully. As the criteria are already established in the draft law, there is limited justification for adding the proposed provision to Article 83 of the law.

The draft law gives professional competence a decisive importance and reduces the weight of integrity in the evaluation of judges and candidates.

The draft law proposes an addition to Part 1 of Article 85 in the law, which states that the total points a judge or candidate for a judge position can receive during the judge's dossier review and interview stage cannot exceed 30% of the maximum qualification evaluation points. Currently, based on HQCJ regulations, judges and candidates receive about 80% of the maximum points during this stage.

This draft law alters the nature of the assessment by shifting the focus from integrity to professionalism and increasing the weight of test results compared to points based on integrity indicators. Test results for knowledge of legislation and practical tasks will become the primary determinants of the qualification assessment, while criteria related to integrity and professional ethics will take a secondary role.

This shift carries the risk of diminishing the importance of integrity as an assessment criterion for judges and candidates. Since the qualification assessment process applies to judges and judge candidates in appellate courts, high specialised courts, and the Supreme Court, this change could have adverse effects on the objectives of renewing the judicial corps and restoring trust in the judiciary.

The draft law partially cancels the restrictions on receiving awards by judges, which brings back the risks of undue influence on judges.

Part 9 of Article 56 in the law currently enforces a general ban on judges receiving awards. However, the draft law suggests a new version of this article, which restricts judges from receiving awards only for activities related to the administration of justice. This change makes it relatively easy to bypass the ban, as individuals could simply claim that the award is not for their judicial activities. Corrupt officials, politicians, public figures, and others might exploit this loophole to exert influence over judges.

The draft law fails to address the issue of judges who avoided the qualification assessment introduced by the 2016 reform.

This primarily concerns almost all judges in the appellate courts of Kyiv who successfully completed the evaluation between 2016 and 2017, before the 2016 reform was implemented. The 2016 reform introduced the participation of the Public Integrity Council and the possibility of dismissal, particularly for judges who couldn't confirm the legality of their property sources.

Given the formality of the initial qualification assessment procedure and its significant differences in terms of depth, content, and legal consequences compared to the qualification assessment procedure, especially with regard to the involvement of the Public Integrity Council, such an assessment should not be considered a repeat. However, conducting this assessment is critical for the continuity of judicial reform and the fulfilment of the goals of revitalising the judicial system and rebuilding trust in the judiciary.

As a recommendation, we suggest adding a fifth paragraph to paragraph 21 of the Final and Transitional Provisions of the draft law. This paragraph should address the qualification assessment of judges who previously passed the initial qualification assessment procedure in accordance with the Law of Ukraine "On Ensuring the Right to a Fair Trial".

Other reservations.

The proposed version of Part 19 of Art. 79 stipulates that in case of discovery during the competition of facts that may result in disciplinary responsibility of the judge who became the winner of the competition, the HQCJ, simultaneously along with making a recommendation on the transfer of such a judge, applies to the body conducting disciplinary proceedings against the judge, which then decides whether to open a disciplinary procedure or not. It is not clear why, despite the existence of reasonable doubts about the commission of a disciplinary offence by a judge, the commission still makes a positive decision for such a judge.