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Vitaly Tytych is the coordinator of the Public Integrity Council, the judiciary’s civil society watchdog.
During Ukraine’s judicial reform, the bodies responsible for carrying it out (the High Qualification Commission of Judges and the High Council of Justice) have proved that they are incapable of meeting the demands of civil society to cleanse the judiciary and ensure the right to a fair trial.
The Public Integrity Council, which has represented civil society, has been blocked from helping to cleanse the judiciary. The opinions of the Public Integrity Council have been completely ignored by the High Qualification Commission and the High Council of Justice, and the civil society watchdog has been used to legitimize the fake judicial reform when necessary.
The High Qualification Commission’s failure to carry out the judicial reform has been recognized by the pillars of Ukraine’s expert community, including the Center of Policy and Legal Reform, the Reanimation Package of Reforms and the Public Integrity Council.
Due to the High Qualification Commission’s fiasco, those who promoted the creation of the High Anti-Corruption Court, or HACC, stipulated that only a body that comprises foreign representatives is capable of selecting judges of the HACC, which is being created now. From the very beginning, the idea of the law on the HACC envisaged that foreign experts would select judges of the court.
According to the opinion of the European Commission for Democracy through Law, or Venice Commission, and letters by the European Union, the World Bank and the International Monetary Fund, the Public Council of International Experts (PCIE) must play a “crucial role in the selection of judges” of the anti-corruption court.
The government had to agree to this due to the pressure of civil society and the need to borrow money abroad. However, in order to minimize foreigners’ role, the authors of the law wrote the legislation on the HACC in a vague and unclear manner.
The purpose of the authorities is to use the PCIE in the same way as the Public Integrity Council.
Under the law on the HACC, if a majority of the members of the High Qualification Commission and PCIE combined votes for a candidate, he or she continues participation in the competition, given that at least three out of the Public Council of International Experts’ six members vote for the candidate.
Most stakeholders and experts have interpreted this vague wording of the law as the PCIE’s authority to veto the worst candidates (negative selection).
But despite the vagueness of the wording, under the law on the HACC the PCIE must assess and select candidates who meet integrity standards and have the highest level of professional competence (knowledge and skills related to corruption investigations). This in fact means the selection of the best candidates (positive selection), as opposed to negative selection (veto).
The wording of the law doesn’t make the procedure of positive selection sufficiently clear. However, it does allow the PCIE to carry out not just the vetoing of the worst candidates, but the selection of the best ones.
To assess professional competence, the PCIE is obliged to evaluate judicial decisions of judges who apply for HACC jobs and the legal positions of lawyers who seek to become HACC judges. For this purpose, PCIE members must have full access to the official court register and candidates’ personal data.
This access is explicitly stipulated by the law on the HACC, which also obliges the High Qualification Commission and the State Judicial Administration to provide organizational and technical support to the PCIE.
The assessment of candidates’ professional competence (knowledge and skills related to corruption investigations) is only possible if the PCIE evaluates the results of candidates’ legal knowledge tests and practical tests, which include questions and tasks related to corruption investigations.
For this reason, the High Qualification Commission must allow the PCIE to assess candidates’ practical tests. Moreover, the law on the judiciary and status of judges stipulates that the results of practical tests must be published as part of candidates’ profiles. Therefore, the High Qualification Commission’s efforts to make the results of candidates’ practical tests secret are illegal.
Another argument in favor of the PCIE’s positive selection powers is that the High Qualification Commission has the ability to manipulate and rig the competition for the HACC due to its arbitrary and subjective assessment methodology, which has been criticized by many leading experts.
Under the High Qualification Commission’s methodology, the commission assigns up to 210 points out of 1,000 for legal knowledge and practical tests to candidates and up to 790 points out of 1,000 points without giving any explicit reasons. The United States Agency for International Development has proposed increasing the percentage of objective criteria (legal knowledge and practical tests) in the methodology but the High Qualification Commission ignored the proposals.
This methodology will allow the High Qualification Commission to obstruct and nullify the PCIE’s work at the final stage of the competition. Therefore the main task of the PCIE is to leave the commission no scope for manipulations and falsifications.
What I described above is the only way to make the competition for the HACC work. Otherwise Ukraine will have yet another fiasco that will destroy society’s hopes for justice.
It’s up to our foreign partners to decide whether to insist that this sole, legitimate method of selecting HACC judges is used. But if they don’t, this part of judicial reform will be just as flawed as the rest.
