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What should be done to create an independent High Qualification Commission of Judges?
01.04.2021
On March 17, the deadline for submitting amendments to the draft law №3711-д, which is to start the formation of a new High Qualifications Commission of Judges, expired. We have actively communicated with the MPs to persuade them to amend the draft law so that it would guarantee the formation of an independent High Qualification Commission of Judges (HQCJ).

Experts of the DEJURE Foundation have developed a list of proposals, only with the support of which the draft law №3711-д will become the basis for the formation of a truly independent HQCJ.
What does the draft law provide for now?
What needs to be changed or introduced?
The Selection Commission is formed by the High Council of Justice
The first composition of the Selection Commission to the HQCJ will be formed by the High Council of Justice (HCJ).
The Selection Commission is formed by the President of the Supreme Court or the Minister of Justice
In order for the HCJ not to block the formation of the first Selection Commission, arguing that a collegial body cannot collect votes, a model should be introduced where the Commission is approved by the President of the Supreme Court or, if not, by the Minister of Justice.
The HQCJ Selection Commission is under the control of the HCJ
The HCJ approves the regulations on the competition, the methodology for evaluating candidates, and other documents governing the competition to the HQCJ.
Autonomy of the HQCJ Selection Commission
The Selection Commission must independently approve the regulations on the competition, the methodology for evaluating candidates, and any other documents governing the competition.
The Selection Commission may be forced to approve candidates of low integrity
The draft law obliges the Selection Commission to propose at least two candidates for each vacant position in the HQCJ and does not provide an answer as to what to do if there are fewer high integrity candidates.

In this case, only to comply with the law, the Selection Commission may be forced to propose candidates of low integrity to the HCJ, which the HCJ will undoubtedly prefer.
The Selection Commission should be able to hold an additional competition to the HQCJ
If there are not enough high integrity candidates to nominate two candidates for each vacancy, the Selection Commission should be able to announce an additional competition.

Thus, the Selection Commission will not be forced to nominate candidates of low integrity only to fulfill a formal requirement of the law.
The votes of international experts and judges in the Selection Commission weigh equally
The Selection Commission will consist of 6 members: 3 judges nominated by the Council of Judges and 3 international experts nominated by international organizations.

As decisions will be taken by 4 votes, the judges who are the members of the Commission will be able to block the appointment of candidates of high integrity who can become the "agents of change" in the judiciary.
Give international experts a casting vote in the Selection Commission if the votes are distributed equally
In order for judges not to be able to block the appointment of candidates of high integrity, in the event of a 3 to 3 split, the international experts should have a casting vote.
International experts are involved in the Selection Commission only for a year of the formation of the new HQCJ
The draft law stipulates that international experts will be involved in the formation of the HQCJ only for 1 year. The Commission will then be formed by the Councils of Judges, Lawyers, Prosecutors, and the Presidium of the Academy of Legal Sciences.
International experts are involved in the Selection Commission for three years
The term of involvement of international experts in the formation of the Selection Commission should be extended to 3 years. After this term, the members of the Selection Commission should be nominated by the Public Integrity Council instead of international experts.
The Selection Commission supported by the HCJ Secretariat
This allows the corrupt High Council of Justice to influence the Selection Commission.
The provision of the Selection Commission must guarantee its autonomy
Instead of the HCJ Secretariat, the Selection Commission should appoint authorized persons to assist it in the selection and verification of candidates.
In the coming weeks, MPs are likely to work in a specialized subcommittee to prepare an agreed version of the draft law for submission to the Legal Committee. We call on MPs to make this process as open as possible so that public experts and international partners can become involved in it.

The Legal Committee members have the opportunity to correct all the shortcomings of the draft law. The main efforts should be aimed at depriving the HCJ of any influence on the competition to the HQCJ and ensuring the independence of the Selection Commission. Otherwise, there is no hope for qualitative changes in the judiciary. Read up about what else needs to be done to create a truly independent court in Ukraine in the Judicial Reform Roadmap.
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