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The High Qualification Commission and the High Council of Justice cannot be trusted to conduct an objective and fair competition for the anti-corruption court without severe foreign and civil society oversight and without a drastic change in the competition’s methodology. They cannot be trusted because they violated the law and demonstrated their political bias by rigging the competition for the Supreme Court.
The discredited High Qualification Commission must be deprived of its arbitrary powers to assign scores subjectively during competitions for anti-corruption and other judges, and such scores must be based on objective criteria.
This is even more important than foreign donors’ veto powers, and this is the only way to ensure that honest and professional candidates believe in the fairness of the competition and participate, and that the commission has no way of promoting political loyalists and incompetent candidates for subjective reasons.
During the Supreme Court competition, 90 scores were assigned for anonymous legal knowledge tests, 120 scores for anonymous practical tests, and the High Qualification Commission could arbitrarily assign 790 scores without giving any explicit reasons (formally based on interviews with candidates and examining their profiles).
According to the 2016 law on the judiciary and status of judges, legal knowledge and practical tests (i.e. objective criteria) are the main method of selecting judges. This law stipulates that at least 75 percent of the total score (i.e. 750 out of 1,000 scores) must be given for anonymous legal knowledge and practical tests.
The High Qualification Commission took advantage of the vague wording of the law to set regulations that contradict the law because only 210 out of the total of 1,000 scores were assigned for legal knowledge and practical tests.
As a result of the Supreme Court competition, candidates who were at the top of the list after the anonymous knowledge tests and practical tests ended up at the bottom in the final stage for unknown reasons, while candidates who initially got lower scores and had a corrupt background ended up at the top.
Both the law on the judiciary and the High Qualification Commission’s internal regulations must be amended and clarified to clearly assign 750 scores for anonymous legal knowledge tests and practical tests (for competitions for both the anti-corruption court and all other courts). If parliament refuses to amend the law, the High Qualification Commission can just change its regulations, which is even easier.
As an option, 330 scores should be given for anonymous legal knowledge tests, another 330 scores for practical tests, and 330 scores for interviews and professional ethics (preferably based on conclusions by the Public Integrity Council and foreign donors). The law on the judiciary and status of judges should also be amended to require the publication of practical works after practical tests.
That would leave no room for arbitrary decisions and political involvement.
President Petro Poroshenko claims that the participation of foreign donors in the competition for the anti-corruption court contradicts Ukraine’s sovereignty, which is false (for example, the National Anti-Corruption Bureau of Ukraine was created with the participation of foreign donors).
But anyway Ukraine’s foreign partners could delegate independent Ukrainian citizens with impeccable reputation and integrity. This would halt any talk about sovereignty.
Such representatives could include people from the December 1 Initiative Group civil-society organization, Soviet dissident and human rights lawyer Myroslav Marynovych or Vyacheslav Bryukhovetsky, honorary president of the Kyiv Mohyla Academy.
Moreover, Ukraine’s foreign donors must take part in the competition for anti-corruption judges but they will have neither time nor resources to vet all the candidates and their background on their own. The Public Integrity Council, which has shown its independence from the authorities and its ability to work hard to examine candidates’ background, must take part in the competition for the anti-graft court by collecting all the available information on candidates (and the council must participate in competitions for all courts under the 2016 law on the judiciary and status of judges).
This is the only way to ensure that anti-corruption judges are truly professional and independent.
The use of the same objective methodology for assigning scores both for the anti-corruption court and other courts and the participation of the Public Integrity Council in competitions for the anti-corruption court and other courts will totally kill the false argument that the anti-corruption court is a “special” court banned by the Constitution (the Venice Commission has already refuted this argument).
Also, it will be impossible to select independent judges if foreign donors choose representatives loyal to the Ukrainian government. Such representatives must be completely independent from pressure by Ukrainian authorities.
In the best-case scenario, foreign donors should themselves assess candidates’ professional integrity. But at least they should have a right to suspend the competition and initiate an audit if evidence emerges that the High Qualification Commission violated procedural rules.
The Public Integrity Council believes that the competition for the Supreme Court was rigged to promote politically loyal candidates.
First, during the practical test stage, some candidates were given tests that coincided with cases that they had considered during their career, which was deemed a tool of promoting political loyalists.
Second, in March 2017 the High Qualification Commission illegally allowed 43 candidates who had not gotten sufficient scores during practical tests to take part in the next stage, changing its rules amid the competition. Members of the Public Integrity Council believe that the rules were unlawfully changed to prevent political loyalists from dropping out of the competition.
Apart from the second score assigned anonymously for practical works, the commission gave them a third score after naming them, violating the law (because practical tests should be anonymous to prevent political interference). The commission must have just assigned the second score without knowing the candidates’ names.
Third, the High Qualification Commission illegally refused to publish the scores for candidates’ psychological tests, failed to set a minimum score for psychological tests and illegally assessed the tests on its own (although they must have been assessed by psychologists). Moreover, the commission used corporate loyalty tests, which stipulated loyalty as a major characteristic of a judge – as a result, independent candidates were prevented from getting a higher score, while political loyalists were encouraged.
Fourth, the High Qualification Commission removed the profiles of candidates other than the winners from its site.
Fifth, the High Qualification Commission and the High Council of Justice illegally refused to give specific reasons for assigning specific total scores to candidates and refused to explain why the High Qualification Commission has overridden vetoes by the Public Integrity Council on candidates who do not meet ethical integrity standards.
Sixth, the High Council of Justice has illegally rejected 48 out of its members’ 52 recusals from voting for specific Supreme Court candidates due to a conflict of interest. This triggered accusations that the council was planning to get the necessary 14 pro-government votes to appoint politically loyal candidates.
Some of these violations are currently being disputed at Ukrainian courts and will be disputed at the European Court of Human Rights. Moreover, Public Integrity Council members have opened a criminal case into the violations and will open more cases.
Vitaliy Tytych is a lawyer and member of the Public Integrity Council, the judiciary’s civil-society watchdog.
