Kivalov's legacy and the monopoly of "special" universities: What's wrong with the Congress of Legal Scholars that elects members of the HCJ?

Читати українською.

Ivan Shemelynets, legal education expert of DEJURE Foundation.

On September 21, 2023, the Congress of Legal Scholars will be convened once again to elect one member of the High Council of Justice. The last Congress, which took place on June 2, 2023, could not elect anyone since none of the candidates got the majority of votes. We previously detailed the circumstances surrounding this occurrence, yet an examination of several preceding congresses highlights evident organisational challenges.

A brief historical overview: Portnov, Kivalov, Kiva, and other organisers of dubious congresses.

Previous Congresses of Legal Scholars almost always took place with scandals and were accompanied by lawsuits. For example, in 2009, a congress was held in Odesa, which was organised by the so-called "Council of Legal Higher Educational and Scientific Institutions", an organisation created by S. Kivalov. The Ministry of Education made an attempt to organise its Congress but failed. As a result, three members of the High Council of Justice were appointed - S. Kivalov, A. Portnov. and V. Shapoval, who were elected precisely at that Odesa Congress.

In 2019, a dispute arose at the Congress regarding the inclusion of representatives from higher education institutions affiliated with the Ministry of Internal Affairs. This situation led to a genuine drama, with conflicting stances emerging. The High Council of Justice and the Ministry of Justice held the belief that these institutions held a status equivalent to military educational establishments (as defined by the Law on Higher Education), rendering them ineligible for Congress participation. Conversely, the Ministry of Education expressed an opposing viewpoint. The odious Ilya Kiva appeared at the Сongress and stubbornly called to allow representatives of these universities to participate. As a result, representatives of educational institutions of the MIA system were admitted to the Congress, and Viktor Hryshchuk, who represented the Lviv State University of Internal Affairs, became a member of the HCJ. Interestingly, later in 2022, during the reform of the HCJ, the same Hryschuk received a negative conclusion about non-compliance with the criteria of integrity and professionalism from the Ethics Council.

Comparatively to prior Congresses, there has been a degree of advancement evident today: recent academic gatherings have been conducted legitimately, free from the involvement of manipulated non-governmental organisations. However, this progress hasn't been without instances of impropriety and conflicts of interest. In June 2023, suggestions were posted on the Reanimation Package of Reforms website, urging a revision of the legislative framework governing the organisation and execution of the Congress. DEJURE Foundation generally aligns with these proposals while also highlighting additional challenges demanding legislative remedies.

50 shades of the problem of the Congress of Legal Scholars

  • Irrelevant criteria for educational institutions

The "On the Supreme Council of Justice" Law outlines a series of prerequisites for institutions participating in the Congress. Some of these requisites, like the stipulation that master's in law programs should have been active for the past decade, remain verifiable by cross-referencing license issuance dates and data from the Unified State Electronic Database on Education to confirm student enrollment numbers. However, the criterion of a minimum of 75 individuals within the licensed capacity proves inconclusive. Possessing a license doesn't inherently correlate with actual student presence. For instance, as of October 1, 2022, "KPOK" University had only 44 active law master's students, Alfred Nobel University counted 35, the State University of Economics and Technology had 28, and the University of Modern Knowledge had merely 19.

A distinct issue concerns institutions of higher education with specific conditions. Up until December 2021, the law "On higher education" categorised these educational entities alongside military educational institutions, consequently barring their participation in the Congress, which was a logically consistent stance. Presently, the law differentiates between these institutions, rendering the prohibition specified in the "On the High Council of Justice" law inapplicable to them. Nonetheless, considering their inherent nature and objectives, the involvement of "police academies" in the High Council of Justice member elections raises considerable concerns. Additionally, it's noteworthy that two delegates from Luhansk State University of Internal Affairs named after Eduard Didorenko, which was liquidated in December 2022, participated in the June 2, 2023 Congress.

Evidence that the Ministry of Education and Culture cannot properly check higher education institutions and establish their compliance with the criteria is the different number of such institutions at the Сongresses: August 19, 2022 (51 institutions) and June 2, 2023 (65 institutions).

What alternative do we propose? The criteria for selecting law institutions should be bolstered, favouring those that consistently provide master's programs of a commendable standard, thus qualifying them to partake in electing High Council of Justice members. An effective resolution could involve the prerequisite that educational institutions hold accredited programs at the master's and third tier of higher education (doctorate). Furthermore, the involvement of representatives from "police academies" in the Congress should be restricted.

  • No requirements for delegates at the Congress

This responsibility falls solely upon universities and academic institutions. Generally, delegates from higher education institutions include individuals in roles such as associate professors, research assistants, professors, department heads, deans, and vice-rectors. However, peculiar situations arise when a part-time employee is designated as a Congress delegate by a university. For example, during the June 2, 2023 Congress, MP O. Kopylenko was selected as a delegate from "KPOK" University. Consequently, there is a need to establish unambiguous criteria within the law for the selection of Congress delegates.

  • Omnipresent Yaroslav Mudryi National Law University

However, the issue runs deeper. By June 2, 2023, the High Council of Justice comprised two delegates from Yaroslav Mudryi National Law University, one elected by the Verkhovna Rada (M. Moroz) and the other chosen by the Congress of Legal Scholars on August 19, 2022 (D. Lukyanov). Furthermore, another representative from this university stood as a candidate for the High Council of Justice during the June elections. If elected, the High Council of Justice would have encompassed three representatives from the same university. Implementing legal limitations on having more than one candidate under the quota of legal scholars from a single educational institution becomes imperative.

  • The closeness of the organisation and holding of the Congress

The procedure for holding the Congress has always been fairly opaque - the list of institutions, the list of delegates, and the open broadcast of the Congress were not publicly disclosed.

However, the most recent Congress on June 2, 2023, exhibited a greater degree of transparency compared to previous instances. The draft order of the Congress and accompanying documents were shared publicly. Live broadcasting of the Congress was also facilitated, and the roster of participating institutions was made accessible.

To ensure transparency going forward, it is imperative to codify these practices into law, mandating the public disclosure of institution and delegate lists alongside provisions for live broadcasting.

  • Absence of responsibility of law schools and delegates for the election of a member of the HCJ

The current legislation lacks provisions outlining consequences for non-attendance at the Congress. On August 19, 2022, a significant number of law schools and academic institutions opted to disregard the Congress for various reasons, resulting in their failure to send delegates or declining participation. Consequently, out of a possible 51 law schools and scientific institutions, only 37 representatives actively engaged in the Congress. This translated to a mere 69 out of the potential 102 delegates being present (actually 65), with only 62 participating in the voting process.

Similarly, on June 2, 2023, only 104 out of 127 delegates were in attendance. During the re-voting, a mere 90 delegates were present, significantly impeding the process of electing a High Council of Justice member.

To address this issue, the law should incorporate provisions that establish accountability for law schools and their representatives who do not attend the Congress, as well as for violations of the Congress's procedural requirements.

  • Abstract status of the Congress

Unlike the Congresses of Judges, Attorneys and the Conference of Prosecutors, which also elect members of the HCJ, the Congress of Legal Scholars has no other powers except for the election of members of the HCJ. Today, this Congress is a situational gathering of sometimes quite random people who are endowed with only one function.

Previously, there was an attempt to institutionalise the Congress as a full-fledged institution with a wide range of powers. The draft law "On legal education and access to the legal profession" (No. 7417) provided that the Congress of Legal Scholars should have the following powers:

  • to elect members of the Industry Expert Council of the National Agency for Higher Education Quality Assurance;
  • to elect members of the State Legal Examination Commission;
  • to approve recommendations for law schools regarding the improvement of internal quality assurance of the provision of educational services in law schools;
  • to approve ethical standards for legal education and science;
  • to elect members of the High Qualification Commission of Judges;
  • to elect members of the High Council of Justice.

However, unfortunately, this draft law remained a draft. Perhaps the powers and status of the Congress should be determined by a separate legal act, which, for example, could become a separate law on legal education.