Confidence in the results of judicial reform is impossible when there is a lack of transparency

Читати українською.

On May 27, 2022, the Ethics Council resumed interviews with candidates for the High Council of Justice (HCJ). We welcome this decision of the Ethics Council because in the conditions of war the restoration of the work of the constitutional body of the judiciary is extremely important. However, despite the unequivocal requirements of the Law and the Rules of Procedure of the Ethics Council, the members of the Ethics Council decided to close the interviews with the candidates and hold them without online broadcasting, citing martial law. Earlier, the Ethics Council closed the interviews with the current members of the HCJ.

We, the representatives of NGOs that have been fighting for years for fair justice in Ukraine, believe that such a decision of the Ethics Council does not take into account the public interest and may call into question the transparency of judicial reform and confidence in its results.

In our opinion, the format of interviews should guarantee the safety of both their participants and the interests of society and the state. We believe that the restrictions imposed should be proportionate and take into account the high public interest in the work of the Ethics Council. In our opinion, when deciding to close the interviews with the candidates the Ethics Council did not take into account as follows:

  1. Unequal conditions for all candidates. By February 24, 2022, the Ethics Council had interviewed 8 candidates for the High Council of Justice. All of them were broadcast live in real-time on YouTube, and videos of these interviews are still publicly available. Accordingly, the closure of the interviews with the candidates now puts the candidates interviewed on 21 and 23 February in an unequal position.
  2. Inability to close information about candidates that is already publicly available. Information on all candidates is, or at least has been open for a long time, including information on their views on the country's judiciary and attitudes towards corruption and judicial reform with the involvement of international experts. Closing interviews with candidates will not help protect or prevent potential threats to the lives and safety of candidates, as the aggressor may still have access to a large amount of information about them.
  3. The level of threat to candidates in case of broadcasting the interviews is lower compared to the current members of the HCJ. Candidates for the High Council of Justice do not have any powers and only some of them have the potential to gain such powers. In addition, by participating in the competition, the candidate makes a conscious choice, assessing the potential risks for him and his family members. Unlike the current members of the HCJ, a candidate may withdraw from the competition at any time.
  4. Improving the security situation in the country. The security situation in Ukraine is not stable and its improvement is obvious compared to the first days of the full-scale invasion. Thus, daily video broadcasts of trials have been resumed, in particular in cases regarding the events of the Revolution of Dignity, which are sensitive to the aggressor. Courts that have long been under Russian occupation are also resuming their work.

In our opinion, the balance found by the Ethics Council between the need to ensure the safety of candidates and the public interest in the transparency of the selection of future members of the High Council of Justice is not fair. After all, the lack of transparency in the work of the previous High Council of Justice has become one of the key reasons for reforming the body.

The decision to close public interviews with candidates for the High Council of Justice places an even greater burden on the members of the Ethics Council to be responsible for the quality of the candidates selected in this way. Given that the Ethics Council does not provide any motives and explanations for its positive decisions, the public will not understand why certain candidates of low integrity received a recommendation from the Ethics Council. Having thus jeopardized public confidence in the results of the competition, the members of the Ethics Council should ensure that the public has no doubts about the independence and integrity of the candidates it recommends.

We continue to actively monitor the implementation of judicial reform and call on the Ethics Council to recommend only candidates with an impeccable reputation for the positions of members of the High Council of Justice. Currently, the future of a fair court in Ukraine depends on the decisions of the Ethics Council.

DEJURE Foundation
Anti-Corruption Action Centre
Centre of Policy and Legal Reform